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Somnath Tulshiram Galande Vs. Presiding Officer, 2Nd Labour Court, Pune & Others | the work of the Quality Control Supervisor directly and the line inspectors working in shift indirectly through the Quality Control Supervisor, take decisions, decide the parameters for the quality check up and analyse the drawings received from the customers.7. This was the documentary and oral evidence relied upon by the Labour Court to arrive at a finding that the appellant did not satisfy the ingredients of being a `workman and thus was incapacitated from raising an, industrial dispute. It is a settled principle of law that the onus lies upon the workman to prove that he satisfies the essential ingredients of being a workman and, therefore, could raise an industrial dispute. This is a mixed question of fact and law and unless the finding arrived at by the Labour Court was patently perverse or contrary to law, this Court could hardly disturb the findings of facts in a letters patent appeal.8. In the case of All India Reserve Bank Employees Association and Another v. Reserve Bank of India and Another, AIR 1966 SC 305 : 1965-II-LLJ-175, the Supreme Court while approving the findings recorded by the Labour Appellate Tribunal in Ford Motor Co. of India Ltd. v. Ford Motors Staff Union, 1953-II-LLJ-444 held thus:"... the question whether a particular workman is a supervisor within or without the definition of `workman is "ultimately a question of fact, at least one of mixed fact and law..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organizational set up of the particular unit of industry and like factor."9. The definition of `workman under Section 2 (s) is very wide in its terms and specifically excludes the person who works in a supervisory capacity, draws wages exceeding Rs. 1600/- per month and exercises either the nature of duties attached to the Officer or by reason of the power vested in him functions mainly in a managerial capacity. The Supreme Court in the case of Anand Bazar Patrika (P) Ltd. v. workmen, (1970) 3 SCC 248: 1969-1I-LLJ-670 held as under:"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."10. Similarly, in S.K. Maini v. Carona Sahu Co. Ltd., AIR 1994 SC 1824 : (1994) 3 SCC 510 : 1994-II-LLJ-1153, the Supreme Court in paragraph 9 held as under:"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases., When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it""... the designation of an employee is not of, much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of `workman as Section 2(s) of the Industrial Disputes Act."11. The appellant in the present case had multifarious duties and most of his duties were supervisory and managerial. He had the power and capacity to take decisions, supervise work of others and was also responsible for quality control of the products being manufactured. The character and nature of his duties while seen in the light of the documentary and oral evidence led by the parties, it can be concluded that the appellant was not a `workman within the definition of Section 2(s) of the Act. Looking into the admission of the workman and specific language of Exhibit 29 and the terms and conditions of his appointment, it is difficult to arrive at any conclusion other than the one arrived at by the Labour Court and the learned single Judge in the impugned order. | 0[ds]It is a settled principle of law that the onus lies upon the workman to prove that he satisfies the essential ingredients of being a workman and, therefore, could raise an industrial dispute. This is a mixed question of fact and law and unless the finding arrived at by the Labour Court was patently perverse or contrary to law, this Court could hardly disturb the findings of facts in a letters patent appeal.8. In the case of All India Reserve Bank Employees Association and Another v. Reserve Bank of India and Another, AIR 1966 SC 305 :the Supreme Court while approving the findings recorded by the Labour Appellate Tribunal in Ford Motor Co. of India Ltd. v. Ford Motors Staff Union,held thus:"... the question whether a particular workman is a supervisor within or without the definition of `workman is "ultimately a question of fact, at least one of mixed fact and law..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organizational set up of the particular unit of industry and like factor."9. The definition of `workman under Section 2 (s) is very wide in its terms and specifically excludes the person who works in a supervisory capacity, draws wages exceeding Rs. 1600/per month and exercises either the nature of duties attached to the Officer or by reason of the power vested in him functions mainly in a managerial capacity. The Supreme Court in the case of Anand Bazar Patrika (P) Ltd. v. workmen, (1970) 3 SCC 248:held as under:"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."10. Similarly, in S.K. Maini v. Carona Sahu Co. Ltd., AIR 1994 SC 1824 : (1994) 3 SCC 510 :the Supreme Court in paragraph 9 held as under:"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases., When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it""... the designation of an employee is not of, much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of `workman as Section 2(s) of the Industrial Disputes Act."11. The appellant in the present case had multifarious duties and most of his duties were supervisory and managerial. He had the power and capacity to take decisions, supervise work of others and was also responsible for quality control of the products being manufactured. The character and nature of his duties while seen in the light of the documentary and oral evidence led by the parties, it can be concluded that the appellant was not a `workman within the definition of Section 2(s) of the Act. Looking into the admission of the workman and specific language of Exhibit 29 and the terms and conditions of his appointment, it is difficult to arrive at any conclusion other than the one arrived at by the Labour Court and the learned single Judge in the impugned order. | 0 | 2,131 | 1,028 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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the work of the Quality Control Supervisor directly and the line inspectors working in shift indirectly through the Quality Control Supervisor, take decisions, decide the parameters for the quality check up and analyse the drawings received from the customers.7. This was the documentary and oral evidence relied upon by the Labour Court to arrive at a finding that the appellant did not satisfy the ingredients of being a `workman and thus was incapacitated from raising an, industrial dispute. It is a settled principle of law that the onus lies upon the workman to prove that he satisfies the essential ingredients of being a workman and, therefore, could raise an industrial dispute. This is a mixed question of fact and law and unless the finding arrived at by the Labour Court was patently perverse or contrary to law, this Court could hardly disturb the findings of facts in a letters patent appeal.8. In the case of All India Reserve Bank Employees Association and Another v. Reserve Bank of India and Another, AIR 1966 SC 305 : 1965-II-LLJ-175, the Supreme Court while approving the findings recorded by the Labour Appellate Tribunal in Ford Motor Co. of India Ltd. v. Ford Motors Staff Union, 1953-II-LLJ-444 held thus:"... the question whether a particular workman is a supervisor within or without the definition of `workman is "ultimately a question of fact, at least one of mixed fact and law..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organizational set up of the particular unit of industry and like factor."9. The definition of `workman under Section 2 (s) is very wide in its terms and specifically excludes the person who works in a supervisory capacity, draws wages exceeding Rs. 1600/- per month and exercises either the nature of duties attached to the Officer or by reason of the power vested in him functions mainly in a managerial capacity. The Supreme Court in the case of Anand Bazar Patrika (P) Ltd. v. workmen, (1970) 3 SCC 248: 1969-1I-LLJ-670 held as under:"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."10. Similarly, in S.K. Maini v. Carona Sahu Co. Ltd., AIR 1994 SC 1824 : (1994) 3 SCC 510 : 1994-II-LLJ-1153, the Supreme Court in paragraph 9 held as under:"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases., When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it""... the designation of an employee is not of, much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of `workman as Section 2(s) of the Industrial Disputes Act."11. The appellant in the present case had multifarious duties and most of his duties were supervisory and managerial. He had the power and capacity to take decisions, supervise work of others and was also responsible for quality control of the products being manufactured. The character and nature of his duties while seen in the light of the documentary and oral evidence led by the parties, it can be concluded that the appellant was not a `workman within the definition of Section 2(s) of the Act. Looking into the admission of the workman and specific language of Exhibit 29 and the terms and conditions of his appointment, it is difficult to arrive at any conclusion other than the one arrived at by the Labour Court and the learned single Judge in the impugned order.
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It is a settled principle of law that the onus lies upon the workman to prove that he satisfies the essential ingredients of being a workman and, therefore, could raise an industrial dispute. This is a mixed question of fact and law and unless the finding arrived at by the Labour Court was patently perverse or contrary to law, this Court could hardly disturb the findings of facts in a letters patent appeal.8. In the case of All India Reserve Bank Employees Association and Another v. Reserve Bank of India and Another, AIR 1966 SC 305 :the Supreme Court while approving the findings recorded by the Labour Appellate Tribunal in Ford Motor Co. of India Ltd. v. Ford Motors Staff Union,held thus:"... the question whether a particular workman is a supervisor within or without the definition of `workman is "ultimately a question of fact, at least one of mixed fact and law..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organizational set up of the particular unit of industry and like factor."9. The definition of `workman under Section 2 (s) is very wide in its terms and specifically excludes the person who works in a supervisory capacity, draws wages exceeding Rs. 1600/per month and exercises either the nature of duties attached to the Officer or by reason of the power vested in him functions mainly in a managerial capacity. The Supreme Court in the case of Anand Bazar Patrika (P) Ltd. v. workmen, (1970) 3 SCC 248:held as under:"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."10. Similarly, in S.K. Maini v. Carona Sahu Co. Ltd., AIR 1994 SC 1824 : (1994) 3 SCC 510 :the Supreme Court in paragraph 9 held as under:"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases., When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it""... the designation of an employee is not of, much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of `workman as Section 2(s) of the Industrial Disputes Act."11. The appellant in the present case had multifarious duties and most of his duties were supervisory and managerial. He had the power and capacity to take decisions, supervise work of others and was also responsible for quality control of the products being manufactured. The character and nature of his duties while seen in the light of the documentary and oral evidence led by the parties, it can be concluded that the appellant was not a `workman within the definition of Section 2(s) of the Act. Looking into the admission of the workman and specific language of Exhibit 29 and the terms and conditions of his appointment, it is difficult to arrive at any conclusion other than the one arrived at by the Labour Court and the learned single Judge in the impugned order.
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Union of India & Others Vs. M. Ravi Varma & Others | accordance with the Ministry of Home Affairs O. Ms. referred to above."It would follow from the above that so far as the non-grazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate officers of the Central Board of Revenue are concerned, the question of seniority would have to be decided in accordance with the office Memorandum dated 19-10-1959. As the said office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapthi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.14. In Civil Appeal No. 50 of 1969 the learned Solicitor General has referred to office Memorandum dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates belonging to scheduled castes and scheduled tribes as also the Anglo-Indian community The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.15. Office Memorandum dated April 20, 1961 deals with the question of seniority of direct recruits who were confirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are no appointed at that time. If such candidates are appointed in the following year, they are not entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question as to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants. It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.16. The third office Memorandum dated March 27, 1963 referred to by the learned Solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes in Central Government services. The Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority. We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants.17. We may now advert to the Memorandum dated June, 19, 1963 issued by the Directorate General of Health Services. As mentioned earlier, it was after the receipt of this Memorandum that the seniority list of Class III employees of the Government Medical Stores Deport, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi-permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier office Memorandum dated December 22, 1959 did not disturb the seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned. It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with which we are concerned, have to be dealt with by the Ministry of Home Affairs. As Suresh Kumar and Tara Chand Jain, respondent, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of the service as contained in Office Memorandum dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959.18. Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 = (Air 1967 SC 1889 ). Wherein it has been laid down that the service rules may be framed and altered unilaterally by the Government. No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterally service rules. | 0[ds]2. The question has been raised whether it is necessary to continue to apply the instructions contained in the Office Memoranda cited above. Displaced Government servants have by and large been absorbed in the various Central services and their seniority has been fixed with reference to the previous service rendered by them. Similarly, the seniority of ex-employees of the Government of Burma and of Part B States as well as of candidates with war service has already been determined in accordance with the instructions cited above. As the specific objects underlying the instructions cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority. It has, therefore, been decided in consultation with the Union Public Service Commission, that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the general principles annexed hereto.The matter was reviewed thereafter in 1959. The Government then found that displaced Government servants had by and large been absorbed in the various Central services and their seniority had been fixed with reference to the previous service rendered by them. Same was found to be the position of other Government servants who had been given the benefit of the principles contained in Memorandum dated June 22, 1949. As the objects underlying the instructions of June 22, 1949 had been achieved and it was no longer considered necessary to apply those instructions in preference to the normal principle for determination of seniority it was decided that the seniority of Central Government employees would henceforth be determined in accordance with the general principles contained in Annexure to the Office Memorandum issued by the Ministry of Home Affairs on December 22, 1959. One of those principles was that permanent officers of each grade would be ranked senior to persons who were officiating in that grade. The effect of that, as submitted by the learned Solicitor General, was that the seniority was to be determined by the date of confirmation and not on the basis of length of service as was the rule contained in the Office Memorandum dated June 22, 1949.11. The Office Memorandum dated December 2, 1959, however, expressly made it clear that the general principles embodied in the Annexure thereto were not to have retrospective effect. In order to put the matter beyond any pale of controversy, it was mentioned that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the general principles annexed hereto. It is, therefore, manifest that except in certain cases with which we are not concerned, the Office Memorandum dated December 22, 1959 and the provisions laid down in the Annexure thereto could not apply to persons appointed to the various Central services before the date of that Memorandum.12. It may also be mentioned that while dealing with the above Memorandum, this Court in the case of Mervyn Countinho v. Collector of Customs, Bombay, 91966) 3 SCR 600 = (AIR 1967 SC 52 ), observed that these principles were not to apply retrospectively but were given effect to from the date of their issue, subject to certain reservations with which we are notattention in this connection has been invited to letter dated March 15, 1958 sent by the Central Board of Revenue to all Collectors of Central Excise. In this letter there was a reference to an earlier letter dated July 3, 1957 from the Board and it was mentioned that the instructions contained in the earlier letter that for purposes of promotion from ministerial grade to inspectors grade, permanent clerks would first be considered before considering persons who were non-permanent, should be followed is respect of promotions to other grades also. The Solicitor General accordingly contends that the directions contained in the Memorandum dated December 22, 1959 that it could not apply to employees appointed before that date would not hold good in the case of clerks, supervisors and inspectors functioning under the Central Board of Revenue. It is, in our opinion, not necessary to go into this aspect of the matter because we find that the Central Board of Revenue as per letter dated august 27, 1971 addressed to all collectors of Central Excise, gave fresh instructions regarding the principles of seniority. In this letter these was a reference to the Office Memorandum dated December 22, 1959 issued by the Ministry of home Affairs and it wassuppression of all previous orders on the subject, it has now been decided that in so far as the non-gazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate officers are concerned, the seniority of persons appointed to various posts and services after receipt of these orders should be regulated in accordance with the Ministry of Home Affairs O. Ms. referred towould follow from the above that so far as the non-grazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate officers of the Central Board of Revenue are concerned, the question of seniority would have to be decided in accordance with the office Memorandum dated 19-10-1959. As the said office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapthi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.14. In Civil Appeal No. 50 of 1969 the learned Solicitor General has referred to office Memorandum dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates belonging to scheduled castes and scheduled tribes as also the Anglo-Indian community The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.15. Office Memorandum dated April 20, 1961 deals with the question of seniority of direct recruits who were confirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are no appointed at that time. If such candidates are appointed in the following year, they are not entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question as to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants. It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.16. The third office Memorandum dated March 27, 1963 referred to by the learned Solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes in Central Government services. The Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority. We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants.17. We may now advert to the Memorandum dated June, 19, 1963 issued by the Directorate General of Health Services. As mentioned earlier, it was after the receipt of this Memorandum that the seniority list of Class III employees of the Government Medical Stores Deport, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi-permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier office Memorandum dated December 22, 1959 did not disturb the seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned. It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with which we are concerned, have to be dealt with by the Ministry of Home Affairs. As Suresh Kumar and Tara Chand Jain, respondent, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of the service as contained in Office Memorandum dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959.18. Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 = (Air 1967 SC 1889 ). Wherein it has been laid down that the service rules may be framed and altered unilaterally by the Government. No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterally service rules. | 0 | 4,608 | 1,946 | ### Instruction:
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accordance with the Ministry of Home Affairs O. Ms. referred to above."It would follow from the above that so far as the non-grazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate officers of the Central Board of Revenue are concerned, the question of seniority would have to be decided in accordance with the office Memorandum dated 19-10-1959. As the said office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapthi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.14. In Civil Appeal No. 50 of 1969 the learned Solicitor General has referred to office Memorandum dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates belonging to scheduled castes and scheduled tribes as also the Anglo-Indian community The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.15. Office Memorandum dated April 20, 1961 deals with the question of seniority of direct recruits who were confirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are no appointed at that time. If such candidates are appointed in the following year, they are not entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question as to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants. It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.16. The third office Memorandum dated March 27, 1963 referred to by the learned Solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes in Central Government services. The Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority. We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants.17. We may now advert to the Memorandum dated June, 19, 1963 issued by the Directorate General of Health Services. As mentioned earlier, it was after the receipt of this Memorandum that the seniority list of Class III employees of the Government Medical Stores Deport, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi-permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier office Memorandum dated December 22, 1959 did not disturb the seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned. It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with which we are concerned, have to be dealt with by the Ministry of Home Affairs. As Suresh Kumar and Tara Chand Jain, respondent, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of the service as contained in Office Memorandum dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959.18. Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 = (Air 1967 SC 1889 ). Wherein it has been laid down that the service rules may be framed and altered unilaterally by the Government. No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterally service rules.
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in accordance with the Ministry of Home Affairs O. Ms. referred towould follow from the above that so far as the non-grazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate officers of the Central Board of Revenue are concerned, the question of seniority would have to be decided in accordance with the office Memorandum dated 19-10-1959. As the said office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the conclusion that the seniority of Ganapthi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.14. In Civil Appeal No. 50 of 1969 the learned Solicitor General has referred to office Memorandum dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates belonging to scheduled castes and scheduled tribes as also the Anglo-Indian community The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.15. Office Memorandum dated April 20, 1961 deals with the question of seniority of direct recruits who were confirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are no appointed at that time. If such candidates are appointed in the following year, they are not entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question as to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of not any material help to the appellants. It may be stated that the counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.16. The third office Memorandum dated March 27, 1963 referred to by the learned Solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes in Central Government services. The Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority. We, thus, find that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants.17. We may now advert to the Memorandum dated June, 19, 1963 issued by the Directorate General of Health Services. As mentioned earlier, it was after the receipt of this Memorandum that the seniority list of Class III employees of the Government Medical Stores Deport, Karnal was revised and the seniority was determined on the basis of the date of confirmation and not on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, including quasi-permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier office Memorandum dated December 22, 1959 did not disturb the seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are not concerned. It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with which we are concerned, have to be dealt with by the Ministry of Home Affairs. As Suresh Kumar and Tara Chand Jain, respondent, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of the service as contained in Office Memorandum dated June 22, 1949 and not by the rule based upon date of confirmation as contained in the Annexure to the Memorandum dated December 22, 1959.18. Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 = (Air 1967 SC 1889 ). Wherein it has been laid down that the service rules may be framed and altered unilaterally by the Government. No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterally service rules.
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VINOD KUMAR Vs. ASHOK KUMAR GANDHI | wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist. 52. Now reverting to the judgment of this Court in Satyawati Sharma (supra), in the said judgment this Court did not read down the provision of Section 14(1)(e) of the Delhi Rent Control Act. This Court held that Section 14(1)(e) is not intra vires the doctrine of equality enshrined in Article 14 of the Constitution. In paragraph 31 following was laid down: 31………In our considered view, the discrimination which was latent in Section 14(1)(e)at the time of enactment of the 1958 Act has, with the passage of time (almost 50 years), become so pronounced that the impugned provision cannot be treated intra vires Article 14of the Constitution by applying any rational criteria. 53. After considering all aspects of the matter, this Court in Satyawati Sharma (AIR 2008 SC 3148 ) held that Section 14(1)(e) is violative of the doctrine of equality embodied in Article 14 of the Constitution. This Court, thus, struck down the discriminatory portion of Section 14(1)(e). In paragraphs 38 and 39 following was laid down: 38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only. 39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e)… 54. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative ofArticle 14 of the Constitution. Thus, three-Judge Bench judgment in Subramanian Swamy and others (supra) is clearly distinguishable and does not affect the ratio laid down by two-Judge Bench judgment in Satyawati Sharma case. 55. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non- residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Section 1(3) provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Central Government did not issue any notification in the Official Gazette for enforcement of the Act. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. From the above, it is clear that what was observed by Gian Devi Anand was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President. 56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51: 50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette. 51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made. 57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench. | 0[ds]The Constitution Bench judgment in Gian Devi Anand(supra) was delivered by Amarendra Nath Sen, J. with which opinion Bhagwati, J. concurred28. The most important observations which are relevant in present case were made by the Constitution Bench in paragraph 39 of the judgment. The Constitution Bench observed the landlord who let out commercial premises under circumstances may need bona fide premises for his own use under changed conditions. The Constitution Bench suggested that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. Following was observed in paragraph 39:39.Before concluding, there is one aspect which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the ground specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. Inspite of various restrictions put on the landlords right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property inspite of his letting out the same to a tenant. The legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions in some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well29. Now, we revert back to Satyawati Sharmas case. Satyawati Sharma case has noticed Gian Devi Anand case in paragraphs 20 and 21. Satyawati Sharma extracted the entire paragraph 39 of Constitution Bench judgment in paragraph 20. Satyawati Sharma in paragraph 21 states following:21. What is significant to be noted is that in para 34 of the aforementioned judgment, the distinction between residential and non-residential tenancies was made in the context of the rights of the heirs of the tenant to continue to enjoy the protection envisaged under Section 14(1). The Court was of the view that the heirs of the tenants of the commercial premises cannot be deprived of the protection else the family of the tenant may be brought on road or deprived of the only source of livelihood. The Court also opined that if the heirs of the individual tenants of commercial tenancies are deprived of the protection, extremely anomalous consequences will ensue because the companies, corporations and juridical entities carrying on business or commercial activities in rented premises will continue to enjoy the protection even after the change of management, but the heirs of individual tenants will be denuded of similar protection. At the same time, the Court noted that the landlord of a premises let for residential purpose may bona fide require the same for his own use or the use of his dependent family members and observed that the legislature should remove apparent discrimination between residential and non-residential tenancies when the landlord bona fide requires the same. If the observations contained in para 34 are read in any other manner, the same would become totally incompatible with the observation contained in the penultimate paragraph of the judgment and we do not see any reason for adopting such course, more so, because the later part of the judgment has been relied in Harbilas Rai Bansal v. State of Punjab, (1996) 1 SCC 1 and Rakesh Vij v. Dr. Raminder Pal Singh Sethi, (2005) 8 SCC 504 30. The submission which has been pressed by Shri Uday Gupta is that the Constitution Bench in Gian Devi Anand did not declare provisions of Section 14(1)(e) unconstitutional rather left it to the Legislature to amend the law. When Gian Devi Anand has itself not struck down Section 14(1)(e) Satyawati Sharma doing the same is contrary to the judgment of Gian Devi Anand. The observation in paragraph 39 of Gian Devi Anands case itself suggest that the Constitution Bench was satisfied that a ground for eviction of tenant of commercial premises on bona fide requirement of landlord should also be provided for. The basis for what has been done in Satyawati Sharma was clearly laid down in Gian Devi Anand for striking down the unconstitutional part in Section 14(1)(e). We fail to see that how can Satyawati Sharma judgment be said as per incuriam. The ratio of Gian Devi Anand has neither been ignored nor any contrary view has been taken by Satyawati Sharma. We may observe that Gian Devi Anand in paragraphs 32 and 34 has noticed the provisions of Section 14(1) specifically Section 14(1)(e) as existed in the Act, 1958. There was no challenge for the classification in Section 14(1)(e) in the above case, hence neither Gian Devi Anand was required to pronounce on the classification in Section 14(1)(e) nor was required to consider striking down of the provisions. In any view of the matter, the observation in paragraph 39, Gian Devi Ananad justified that there is ground to seek eviction on bona fide need. Thus, Satyadevi Sharma seeks support of what has been done in Gian Devi Anands case31. Now, we come to three-Judge Bench judgment of Gauri Shanker which according to appellant is binding precedent and Satyawati Sharma having not noticed the said, the judgment of Satyawati Sharma is per incuriam. Gauri Shanker was a case where restriction on rights of heir of statutory tenant of residential premises placed by explanation to Section 2(l)(iii) of Delhi Rent Control Act as introduced Act 18 of 1976 while no restrictions were placed on tenants of commercial premises where challenge on the ground of violation of Article 14 and 21 of the Constitution of India. Gauri Shanker has noticed the Gian Devi Anand, especially paragraphs 32 and 3432. Gauri Shanker upheld Section 2(l)(iii) of the Act holding it not violating Article 14 and 21 of the Constitution. The observations in the judgment with respect to residential tenancy and commercial tenancy were made in reference to heritability. In the above context, this Court held that they belong to two different categories with distinct features and characteristics of their own. Gauri Shanker was not a case in which provision of Section 14(1)(e) came for consideration nor any observation has been made with regard to ground of eviction available to landlord with regard to commercial premises. Gauri Shanker had dealt with entirely different provision, certain limitation which was attached to residential premises itself to heritability. The case of Gauri Shanker being on different provision and premise, it cannot be said that Gauri Shanker was a binding precedent to be followed by Satyawati Sharma. The judgment of Gauri Shanker being on different provision cannot be said to be binding precedent in reference to what has been dealt in Satyawati Sharma. We, thus, conclude that the judgment of Satyawati Sharma cannot be held to be per incuriam34. There cannot be any dispute to the submission of the appellant that provision of Section 25B when it was inserted, the procedure was confined to residential premises as has been stated by the Honble Minister on the Floor of the House. There being no ground available to landlord for eviction of a tenant of commercial premises on bona fide need, there was no contemplation for applying the procedure under Section 25BSatyawati Sharma was considering the challenge to provisions of Section 14(1)(e) in sofaras the ground of bona fide need of landlord is also available for commercial premises. Section 25B being related to only procedure for considering the application under Section 14(1) (e)has no bearing on the issue which had propped up before this Court in Satyawati Sharma. Nothing inSection 25B can be read which runs counter to what has been laid down by Satyawati Sharma. Whether a procedure giving more flexibility to tenants of commercial premises should be provided for is another subject but non-reference of Section 25B by Satyawati Sharma does not render the judgment per incuriamSuper Max was a case where this Court had occasion to consider Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In the above case, the Government of Maharashtra was in occupation of sixth floor of a building which used for housing the Office of the Registrar, Cooperative Societies. The appellant suffered a decree of ejectment passed by the Court of Small Causes. The decree came to be challenged by civil revision application where the High Court stayed the execution of the decree subject to the condition that the shall deposit Rs. 5,40,000/- every month which amount was, however, not allowed to be withdrawn by the appellant38. Three-Judge Bench in the above case noticed both the judgments in Gian Devi Anand and Satyawati Sharma39. The ratio which was quoted by three-Judge Bench from Satyawati Sharma was that which was laid down in paragraph 32 of the Satyawati Sharma case. The ratio in Satyawati Sharma that a Legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality has been affirmed which is clear from paragraph 71 of the judgment. Paragraph 71 of three- Judge Bench judgment is as follows:71. We reaffirm the views expressed in Satyawati Sharma and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Courts protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq ft in a building situate at Fort, Mumbai on a rental of Rs 5236.58, plus water charges at the rate of Rs 515.35 per month more than amply highlights the point.)40. It is true that in the above three-Judge Bench judgment, the Court was not directly concerned withSection 14(1)(e) of the Delhi Rent Control Act. Thus, three-Judge Bench had the basis of Satyawati Sharma and on which basis Section 14(1)(e) was struck down after working of the Act after more than 50 years. We, thus, are of the view that three-Judge Bench in Super Max approved limited ratio of Satyawati Sharma as extracted by three-Judge Bench which fully supports the submission that basis and reasoning on which Satyawati Sharma struck down Section 14(1)(e) partly stood on firm footing41. We having rejected the submission of learned counsel for the appellant that the judgment of Satyawati Sharma is per incuriamBy noticing the three-Judge Bench judgment in Super Max, we have already noticed that three-Bench has reaffirmed ratio of Satyawati Sharma that the Legislation which was quite reasonable and rational at the time of itsenactment may with the lapse of time and due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality45. Much emphasis has been given by the learned counsel for the appellant on the fact that various tenants are tenants of small shops which are their source of livelihood when application under 14(1)(e) filed by the landlord on bona fide need, they are not even entitled to contest the application by filing written statement. They are obliged to obtain leave to defend as per Section 25B which leave to defend is rejected in most of the cases which causes great hardship on the tenants. It is submitted that in so far as applicability of the procedure under Section 25B is concerned, the issue needs to be revisited to save the tenants from hardship. In our view this cannot be a ground for referring the judgment of Satyawati Sharma to larger Bench for reconsideration of judgment of Satyawati Sharma. Satyawatig not said about the procedure, there is nothing in the judgment which needs to be revisited on the above aspect. It is for the Legislature to take stock of situation and if it so decides it can make necessary changes in the procedure for considering the application under Section 14(1)(e) with regard to eviction of commercial tenants on the ground of bona fide need of the land lord. We need to add nothing more on the subject. In sofaras submission of the learned counsel for the appellant is that underSection 14(1)(e) in respect of commercial tenancy leave to defend is generally rejected, it is suffice to say that rejection of leave for a particular case is matter to be examined in each case and no general observation can be made in this regard. We have already extracted observation of Constitution Bench judgment in Gian Devi Anand in paragraph 39 where the Constitution Bench observed that bona fide need of the landlord stands very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. After more that a decade of the above observation, a comprehensive Legislation, namely, Delhi Rent Act, 1995 has been enacted to provide for the regulation of rents, repairs and maintenance and evictions relating to premises and of rates of hotels and lodging houses in the National Capital Territory of Delhi52. Now reverting to the judgment of this Court in Satyawati Sharma (supra), in the said judgment this Court did not read down the provision of Section 14(1)(e) of the Delhi Rent Control Act. This Court held that Section 14(1)(e) is not intra vires the doctrine of equality enshrined in Article 14 of the Constitution. In paragraph 31 following was laid down:31………In our considered view, the discrimination which was latent in Section 14(1)(e)at the time of enactment of the 1958 Act has, with the passage of time (almost 50 years), become so pronounced that the impugned provision cannot be treated intra vires Article 14of the Constitution by applying any rational criteria53. After considering all aspects of the matter, this Court in Satyawati Sharma (AIR 2008 SC 3148 ) held that Section 14(1)(e) is violative of the doctrine of equality embodied in Article 14 of the Constitution. This Court, thus, struck down the discriminatory portion of Section 14(1)(e). In paragraphs 38 and 39 following was laid down:38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e)…54. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative ofArticle 14 of the Constitution. Thus, three-Judge Bench judgment in Subramanian Swamy and others (supra) is clearly distinguishable and does not affect the ratio laid down by two-Judge Bench judgment in Satyawati Sharma case55. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non- residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Section 1(3) provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Central Government did not issue any notification in the Official Gazette for enforcement of the Act. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. From the above, it is clear that what was observed by Gian Devi Anand was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President47. We may notice another three-Judge Bench judgment of this Court, i.e., Subramanian Swamy and others vs. Raju through Member, Juvenile Justice Board and another, (2014) 8 SCC 390. This Court in the above judgment laid down that reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear50. This Court in the background of the above submissions laid down following in paragraph 61:61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the reading down doctrine can be summarized as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well established and well accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents available except, perhaps, the view of Sawant, J. (majority view) in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1991 Supp. (1) SCC 600 which succinctly sums up the position is, therefore, extracted below: (SCC pp.728-29, para 255)255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations arepossibleone rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do so51. Rejecting the submission of the petitioner to read down the statute following was held in paragraph64:64.If the provisions of the Act clearly indicate the legislative intent in the light of the countrys international commitments and the same is in conformity with the constitutional requirements, it is not necessary for the Court to understand the legislation in any other manner. In fact, if the Act is plainly read and understood, which we must do, the resultant effect thereof is wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51:50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench. | 0 | 17,006 | 4,588 | ### 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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wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist. 52. Now reverting to the judgment of this Court in Satyawati Sharma (supra), in the said judgment this Court did not read down the provision of Section 14(1)(e) of the Delhi Rent Control Act. This Court held that Section 14(1)(e) is not intra vires the doctrine of equality enshrined in Article 14 of the Constitution. In paragraph 31 following was laid down: 31………In our considered view, the discrimination which was latent in Section 14(1)(e)at the time of enactment of the 1958 Act has, with the passage of time (almost 50 years), become so pronounced that the impugned provision cannot be treated intra vires Article 14of the Constitution by applying any rational criteria. 53. After considering all aspects of the matter, this Court in Satyawati Sharma (AIR 2008 SC 3148 ) held that Section 14(1)(e) is violative of the doctrine of equality embodied in Article 14 of the Constitution. This Court, thus, struck down the discriminatory portion of Section 14(1)(e). In paragraphs 38 and 39 following was laid down: 38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only. 39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e)… 54. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative ofArticle 14 of the Constitution. Thus, three-Judge Bench judgment in Subramanian Swamy and others (supra) is clearly distinguishable and does not affect the ratio laid down by two-Judge Bench judgment in Satyawati Sharma case. 55. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non- residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Section 1(3) provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Central Government did not issue any notification in the Official Gazette for enforcement of the Act. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. From the above, it is clear that what was observed by Gian Devi Anand was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President. 56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51: 50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette. 51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made. 57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench.
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above judgment laid down that reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear50. This Court in the background of the above submissions laid down following in paragraph 61:61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the reading down doctrine can be summarized as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well established and well accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents available except, perhaps, the view of Sawant, J. (majority view) in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1991 Supp. (1) SCC 600 which succinctly sums up the position is, therefore, extracted below: (SCC pp.728-29, para 255)255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations arepossibleone rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do so51. Rejecting the submission of the petitioner to read down the statute following was held in paragraph64:64.If the provisions of the Act clearly indicate the legislative intent in the light of the countrys international commitments and the same is in conformity with the constitutional requirements, it is not necessary for the Court to understand the legislation in any other manner. In fact, if the Act is plainly read and understood, which we must do, the resultant effect thereof is wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51:50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench.
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Municipal Corporation of Delhi Vs. Suresh Chandra Jaipuria & Another | pay the property tax then the defendant might not be able to carry out its duty. The plaintiffs have also been unable to show that they would suffer irreparable injury if an injunction is not granted to them. If they ultimately prove that they are not liable to pay full amount demanded by the defendant as property tax then the plaintiffs could compel the defendant either to refund the amount realised in excess or to adjust the amount recovered in excess towards property tax for future years. The plaintiffs do not suffer irreparable injury if they are not granted the temporary injunction."5. The High Court, while agreeing with the view of the Appellate Court that the agreeing with the view of the Appellate Court that the balance of convenience was in favour of discharging the interim injunction, held that, as there was a prima facie case that the assessment had been erroneously made, the principles of assessment applicable to such cases had been already laid down by the Full Bench of the Delhi High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee, ILR (1973) 1 Delhi 363. He observed :"One of the principles laid down by the Full Bench decision is that where premises were never let at any time, annual value be fixed in accordance with Section 6(I) (A) (2) (b) or Section 6 (1) (B) (2) (b) by ascertaining market value of land and reasonable cost of construction. The facts noticed above, but missed by the Courts below, prima facie establish that the property was never let out; the prima facie materials which are available, inclusive of what the D. M.C. itself had conceded, show the plaintiffs were occupying the property for their own use. the plaintiffs case therefore, prima facie, falls within the above principle. Failure to perceive the above had resulted in the Courts below declining to exercise jurisdiction vested in them in the manner it should have been exercised".6. Once, the learned Judge interfered and granted the interim injunction prayed for by the plaintiff.7. Mr. F. S. Nariman appearing for the appellant Corporation, points out that Dewan Daulat Ram Kapurs case ILR (1937) 1 Delhi 363 (supra ) was one where premises had been let, but, in the case before us, it was a matter of admission by both sides that the premises had never been let out to a tenant. Section 6(1) (A) (2) (b) of the Delhi Rent Control act relates to cases where standard rent has to be fixed of residential premises let out at any time on or after 2nd June, 1944. The Full Bench decision of the Delhi High Court in Dewan Daulat Ram Kapurs case (supra) was that it was not incumbent on the Corporation to ascertain the hypothetical standard rent of premises in accordance with the provisions of the Rent Act in order to fix the annual value or rateable value where premises had been let but no. standard rent had been fixed and assessment was sought to be made on the basis of agreed rent. It was also decided there that in cases before the High Court on that occasion, reasonable cost of construction as well as the market price of land had to be taken into account in assessing the property tax.8. It is difficult for us to see what bearing the provisions cited from the Delhi Rent Control Act or the Full Bench decision of the High Court could have on the case now before us. It seems to us that Mr. Nariman is correct in submitting that the learned Judge of the High Court had himself misapprehended the law in holding that the Courts below had failed to find a prima facie case because of a misconception of law. However, as no. one has appeared on the date of the final hearing on behalf of the respondent., who had appeared through counsel to answer the show cause notice issued by this Court before granting special leave, we refrain from deciding the question whether the provisions cited by the learned Judge of the Delhi High Court have any bearing on the case before us or not. this is a matter which will be decided in the suit itself. We, therefore, leave it expressly open for determination.9. Mr. Nariman, learned Counsel for the Corporation, is, we think, on very firm ground in contending that balance of convenience could not be ignored in such cases and that the learned Judge of the High Court erred in holding that it could be.10. It also seems that the attention of the learned Judge was not directed towards Section 41 (h) of the Specific Relief Act, 1963, which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeal, under Section 169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether a prima facie case exists for the grant of an interim injunction.11. In M/s. Mechelec Engineers & Manufactures v. M/s. Basic Equipment Corporation, Civil Appeal No. 508 of 1976, D/- 1-11-1976 (SC) also we found very recently that, as in the case before us now, a learned Judge of the Delhi High Court had overlooked the principles governing interference under Section 115 Civil Procedure Code laid down by this Court in Baldevdas Shivlal v. Filmmistan Distributors (India) (P) Ltd., (1970) 1 SCR 435 = (AIR 1970 SC 406 ); D. L.F. Housing & Construction Co. Pvt. Ltd., New Delhi v. Sarup Singh, (AIR 1971 SC 2324 ); The Managing Director (MIG) Hindustan Aeronautics Ltd., Balangar, Hyderabad v. Ajit Prasad Tarway, (AIR 1973 SC 76 ). | 1[ds]8. It is difficult for us to see what bearing the provisions cited from the Delhi Rent Control Act or the Full Bench decision of the High Court could have on the case now before us. It seems to us that Mr. Nariman is correct in submitting that the learned Judge of the High Court had himself misapprehended the law in holding that the Courts below had failed to find a prima facie case because of a misconception of law. However, as no. one has appeared on the date of the final hearing on behalf of the respondent., who had appeared through counsel to answer the show cause notice issued by this Court before granting special leave, we refrainfrom deciding the question whether the provisions cited by the learned Judge of the Delhi High Court have any bearing on the case before us or not.this is a matter which will be decided in the suit itself. We, therefore, leave it expressly open for determination.It also seems that the attention of the learned Judge was not directed towards Section 41 (h) of the Specific Relief Act, 1963, which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. | 1 | 1,698 | 244 | ### Instruction:
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### Input:
pay the property tax then the defendant might not be able to carry out its duty. The plaintiffs have also been unable to show that they would suffer irreparable injury if an injunction is not granted to them. If they ultimately prove that they are not liable to pay full amount demanded by the defendant as property tax then the plaintiffs could compel the defendant either to refund the amount realised in excess or to adjust the amount recovered in excess towards property tax for future years. The plaintiffs do not suffer irreparable injury if they are not granted the temporary injunction."5. The High Court, while agreeing with the view of the Appellate Court that the agreeing with the view of the Appellate Court that the balance of convenience was in favour of discharging the interim injunction, held that, as there was a prima facie case that the assessment had been erroneously made, the principles of assessment applicable to such cases had been already laid down by the Full Bench of the Delhi High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee, ILR (1973) 1 Delhi 363. He observed :"One of the principles laid down by the Full Bench decision is that where premises were never let at any time, annual value be fixed in accordance with Section 6(I) (A) (2) (b) or Section 6 (1) (B) (2) (b) by ascertaining market value of land and reasonable cost of construction. The facts noticed above, but missed by the Courts below, prima facie establish that the property was never let out; the prima facie materials which are available, inclusive of what the D. M.C. itself had conceded, show the plaintiffs were occupying the property for their own use. the plaintiffs case therefore, prima facie, falls within the above principle. Failure to perceive the above had resulted in the Courts below declining to exercise jurisdiction vested in them in the manner it should have been exercised".6. Once, the learned Judge interfered and granted the interim injunction prayed for by the plaintiff.7. Mr. F. S. Nariman appearing for the appellant Corporation, points out that Dewan Daulat Ram Kapurs case ILR (1937) 1 Delhi 363 (supra ) was one where premises had been let, but, in the case before us, it was a matter of admission by both sides that the premises had never been let out to a tenant. Section 6(1) (A) (2) (b) of the Delhi Rent Control act relates to cases where standard rent has to be fixed of residential premises let out at any time on or after 2nd June, 1944. The Full Bench decision of the Delhi High Court in Dewan Daulat Ram Kapurs case (supra) was that it was not incumbent on the Corporation to ascertain the hypothetical standard rent of premises in accordance with the provisions of the Rent Act in order to fix the annual value or rateable value where premises had been let but no. standard rent had been fixed and assessment was sought to be made on the basis of agreed rent. It was also decided there that in cases before the High Court on that occasion, reasonable cost of construction as well as the market price of land had to be taken into account in assessing the property tax.8. It is difficult for us to see what bearing the provisions cited from the Delhi Rent Control Act or the Full Bench decision of the High Court could have on the case now before us. It seems to us that Mr. Nariman is correct in submitting that the learned Judge of the High Court had himself misapprehended the law in holding that the Courts below had failed to find a prima facie case because of a misconception of law. However, as no. one has appeared on the date of the final hearing on behalf of the respondent., who had appeared through counsel to answer the show cause notice issued by this Court before granting special leave, we refrain from deciding the question whether the provisions cited by the learned Judge of the Delhi High Court have any bearing on the case before us or not. this is a matter which will be decided in the suit itself. We, therefore, leave it expressly open for determination.9. Mr. Nariman, learned Counsel for the Corporation, is, we think, on very firm ground in contending that balance of convenience could not be ignored in such cases and that the learned Judge of the High Court erred in holding that it could be.10. It also seems that the attention of the learned Judge was not directed towards Section 41 (h) of the Specific Relief Act, 1963, which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeal, under Section 169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether a prima facie case exists for the grant of an interim injunction.11. In M/s. Mechelec Engineers & Manufactures v. M/s. Basic Equipment Corporation, Civil Appeal No. 508 of 1976, D/- 1-11-1976 (SC) also we found very recently that, as in the case before us now, a learned Judge of the Delhi High Court had overlooked the principles governing interference under Section 115 Civil Procedure Code laid down by this Court in Baldevdas Shivlal v. Filmmistan Distributors (India) (P) Ltd., (1970) 1 SCR 435 = (AIR 1970 SC 406 ); D. L.F. Housing & Construction Co. Pvt. Ltd., New Delhi v. Sarup Singh, (AIR 1971 SC 2324 ); The Managing Director (MIG) Hindustan Aeronautics Ltd., Balangar, Hyderabad v. Ajit Prasad Tarway, (AIR 1973 SC 76 ).
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### Explanation:
8. It is difficult for us to see what bearing the provisions cited from the Delhi Rent Control Act or the Full Bench decision of the High Court could have on the case now before us. It seems to us that Mr. Nariman is correct in submitting that the learned Judge of the High Court had himself misapprehended the law in holding that the Courts below had failed to find a prima facie case because of a misconception of law. However, as no. one has appeared on the date of the final hearing on behalf of the respondent., who had appeared through counsel to answer the show cause notice issued by this Court before granting special leave, we refrainfrom deciding the question whether the provisions cited by the learned Judge of the Delhi High Court have any bearing on the case before us or not.this is a matter which will be decided in the suit itself. We, therefore, leave it expressly open for determination.It also seems that the attention of the learned Judge was not directed towards Section 41 (h) of the Specific Relief Act, 1963, which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust.
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PSA Mumbai Investments Pte. Limited Vs. The Board of Trustees of the Jawaharlal Nehru Port Trust and Ors | Conditions of Contract (Section III) and Clause 20 therein providing for arbitration, will not apply in regard to any dispute in regard to the tender or bid, or non-placing of a purchase order, but will apply only in regard to any contract awarded by BSNL by placing a purchase order. xxx 27. It is also very significant that Section II (Instructions to Bidders) and Section IV (Special Conditions) which are relevant at the bid stage do not contain any arbitration Clause providing that if there is any dispute between BSNL and a bidder in regard to the bid/tender process, the dispute will be settled by arbitration. On the other hand, the Instruction to Bidders contains a specific provision that if there is a dispute or claim arising out of the tender till (issue of authorization for) placement of the purchase order, only courts will have jurisdiction. Of course, as and when Appellant placed a purchase order on a bidder, the purchase order contained a term that the General conditions of contract, forming part of the bid documents would be a part of the contract documents, and consequently the arbitration Clause applied to the contracts entered between BSNL and the bidders. xxx 29. Therefore, only when a purchase order was placed, a contract would be entered; and only when a contract was entered into, the General Conditions of Contract including the arbitration Clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration Clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed. 18. However, Mr. Dave, strongly relied upon the judgment in Kollipara Sriramulu (Dead) by his LR (supra). This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed." 19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply. 20. Mr. Dave also strongly relied upon the judgment in Inox Wind Limited v. Thermocables Limited, (2018) 2 SCC 519 . This judgment in paras 17-19 thereafter made it clear that an exception to the general Rule laid down in M.R. Engineers and Contractors Private Limited (supra) as to standard forms of practice containing arbitration clauses would be extended also to standard forms between individual persons and not merely standard forms of professional assessments. 21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptance. Mr. Sibal argued, relying strongly upon M.R. Engineers and Contractors Private Limited (supra), that assuming that there was an arbitration Clause which governs the parties, the said Clause would be wholly inapt as it would only cover disputes between a Special Purpose Vehicle and the Respondent No. 1 arising from the Concession Agreement not yet entered into, and not between the Respondent No. 1 and the Appellant and Respondent No. 2. He is correct, and we agree with this contention as well. 22. We now come to the last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfere. 23. Mr. Dave relies upon the fact that a subsequent tender has been accepted, causing great financial loss to the Respondent No. 1. Mr. Sibal has replied by saying that the subsequent tender contained different tender conditions and, in any case, insofar as that subsequent tender was concerned, his bid was considered the best amongst six other bidders. Apart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same. | 1[ds]13. On a conjoint reading of the aforesaid clauses, a few things become clear - (i) first and foremost a Disclaimer at the forefront of the RFP makes it clear that there is only a bid process that is going on between the parties and that there is no concluded contract between the same (ii) it is equally clear that such bid process would subsume a Letter of Award to be issued by the Respondent No. 1 with two further steps under the Schedule to be gone into before the draft Concession Agreement finally becomes an agreement between Respondent No. 1 and the Special Purpose Vehicle that is constituted by the Consortium for this purpose (iii) that throughout the stage of the bid process, the forum for dispute resolution is exclusively with the Courts at Mumbai and (iv) that right up till the stage of the entering into the Concession Agreement, the bid process may be annulled without giving any reason whatsoever by the Respondent No. 1This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptanceHe is correct, and we agree with this contention as well22. We now come tothe last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfereApart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same | 1 | 8,702 | 687 | ### 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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Conditions of Contract (Section III) and Clause 20 therein providing for arbitration, will not apply in regard to any dispute in regard to the tender or bid, or non-placing of a purchase order, but will apply only in regard to any contract awarded by BSNL by placing a purchase order. xxx 27. It is also very significant that Section II (Instructions to Bidders) and Section IV (Special Conditions) which are relevant at the bid stage do not contain any arbitration Clause providing that if there is any dispute between BSNL and a bidder in regard to the bid/tender process, the dispute will be settled by arbitration. On the other hand, the Instruction to Bidders contains a specific provision that if there is a dispute or claim arising out of the tender till (issue of authorization for) placement of the purchase order, only courts will have jurisdiction. Of course, as and when Appellant placed a purchase order on a bidder, the purchase order contained a term that the General conditions of contract, forming part of the bid documents would be a part of the contract documents, and consequently the arbitration Clause applied to the contracts entered between BSNL and the bidders. xxx 29. Therefore, only when a purchase order was placed, a contract would be entered; and only when a contract was entered into, the General Conditions of Contract including the arbitration Clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration Clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed. 18. However, Mr. Dave, strongly relied upon the judgment in Kollipara Sriramulu (Dead) by his LR (supra). This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed." 19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply. 20. Mr. Dave also strongly relied upon the judgment in Inox Wind Limited v. Thermocables Limited, (2018) 2 SCC 519 . This judgment in paras 17-19 thereafter made it clear that an exception to the general Rule laid down in M.R. Engineers and Contractors Private Limited (supra) as to standard forms of practice containing arbitration clauses would be extended also to standard forms between individual persons and not merely standard forms of professional assessments. 21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptance. Mr. Sibal argued, relying strongly upon M.R. Engineers and Contractors Private Limited (supra), that assuming that there was an arbitration Clause which governs the parties, the said Clause would be wholly inapt as it would only cover disputes between a Special Purpose Vehicle and the Respondent No. 1 arising from the Concession Agreement not yet entered into, and not between the Respondent No. 1 and the Appellant and Respondent No. 2. He is correct, and we agree with this contention as well. 22. We now come to the last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfere. 23. Mr. Dave relies upon the fact that a subsequent tender has been accepted, causing great financial loss to the Respondent No. 1. Mr. Sibal has replied by saying that the subsequent tender contained different tender conditions and, in any case, insofar as that subsequent tender was concerned, his bid was considered the best amongst six other bidders. Apart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same.
### Response:
1
### Explanation:
13. On a conjoint reading of the aforesaid clauses, a few things become clear - (i) first and foremost a Disclaimer at the forefront of the RFP makes it clear that there is only a bid process that is going on between the parties and that there is no concluded contract between the same (ii) it is equally clear that such bid process would subsume a Letter of Award to be issued by the Respondent No. 1 with two further steps under the Schedule to be gone into before the draft Concession Agreement finally becomes an agreement between Respondent No. 1 and the Special Purpose Vehicle that is constituted by the Consortium for this purpose (iii) that throughout the stage of the bid process, the forum for dispute resolution is exclusively with the Courts at Mumbai and (iv) that right up till the stage of the entering into the Concession Agreement, the bid process may be annulled without giving any reason whatsoever by the Respondent No. 1This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptanceHe is correct, and we agree with this contention as well22. We now come tothe last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfereApart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same
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STATE OF TAMIL NADU Vs. M. MANGAYARKARASI | from service on the ground that it was shockingly disproportionate. The Single Judge substituted it by directing the stoppage of increments for a period of two years without cumulative effect. 4. The two employees, M. Mangayarkarasi and M. Jayalakshmi, were working as Superintendent and Accountant respectively in the District Treasury at Salem. The charges against them were of having admitted and sanctioned bills of the office of the Assistant Commissioner of Commercial Taxes without proper verification, in accordance with the departmental procedures. 5. The case of the State is that during the period 1997-2000, a fraud involving misappropriation of a sum of Rs. 1.22 crores by the staff in the District Treasury Office, Salem came to light involving the presentation of 257 bogus bills in the Treasury. Following the submission of a Special Audit Report, a charge memo was issued against eleven members of the Treasury staff. Charges were framed in the course of the disciplinary proceedings. On the charges having been found to be established, the State Government issued an order of removal from service. 6. The orders of removal were challenged before the learned Single Judge. 7. The learned Single Judge interfered with the punishment on the ground that other employees against whom disciplinary proceedings had been initiated on similar charges had been subjected to a comparatively a lenient punishment of stoppage of increments. 8. The State Government, however, sought to justify the punishment on the ground that the quantum of loss caused due to the production of bogus bills in the case of the two employees was substantially higher. The learned Single Judge rejected this submission on the ground that the court would have to consider only the nature of the charge and not the quantum involved. 9. The Division Bench affirmed the judgment of the learned Single Judge, while dismissing the writ appeals filed by the State of Tamil Nadu. The Division Bench observed that it was conscious of the fact that in cases involving disciplinary proceedings, cases of two employees cannot as such be compared. However, it was of the view that since the charges against all the employees were identical and the employees were in the same cadre of ministerial service, the view of the learned Single Judge in applying parity of treatment could not be faulted. Moreover it was held that the violations were of a procedural nature. 10. On behalf of the appellants, it has been submitted that there is a clear distinction between the case of the two employees in question and others who were awarded minor punishments involving the stoppage of increments. This distinction is sought to be brought out from the following chart which is annexed to the present proceedings; Sl. No. Name of the Delinquent No. of Bills Amount misappropriated 1. J. Nirmaladevi 6 Rs. 2,56,918/- 2. P. Vardharajan 12 Rs. 4,59,527/- 3. R. Anandan 8 Rs. 2,59,576/- 4. R. Raghavan 19 Rs. 6,01,418/- 5. M. Mangayarkarasi 90 Rs. 45,28,003/- 6. M. Jayalakshmi 105 Rs. 51,98,403/- 11. It was urged that the two employees in the present case were involved in the verification of 90 and 105 bills respectively involving misappropriation of an amount of Rs. 45.28 lakhs and 51.98 lakhs respectively. Having regard to the gravity of the misconduct and the amount involved, it was urged on behalf of the appellants that the distinction which was made by the disciplinary authority could not be faulted. 12. On the other hand, it has been urged on behalf of the respondents that the High Court has taken a compassionate view of the matter having regard to the fact that the employees have, in the meantime, retired from service. Moreover, it was sought to be urged that the lapses were procedural and no financial benefit had accrued to the employees. Learned counsel for the respondents also submitted that there is no case of misappropriation against the two employees involved in the present appeals. 13. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted. 14. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. This ex-facie emerges from a perusal of the chart which has been extracted above. The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority. 15. Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous. 16. Third, the approach of both the learned Single Judge and the Division Bench cannot be accepted having due regard to the parameters of judicial review in disciplinary matters. The learned Single Judge substituted the penalty which was imposed by the disciplinary authority, for a penalty which appeared to the Court to be just and proper. The imposition of a penalty in disciplinary proceeding lies in the sole domain of the employer. Unless the penalty is found to be shockingly disproportionate to the charges which are proved, the element of discretion which is attributed to the employer cannot be interfered with. | 1[ds]13. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted.14. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. This ex-facie emerges from a perusal of the chart which has been extracted above. The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority.15. Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous.16. Third, the approach of both the learned Single Judge and the Division Bench cannot be accepted having due regard to the parameters of judicial review in disciplinary matters. The learned Single Judge substituted the penalty which was imposed by the disciplinary authority, for a penalty which appeared to the Court to be just and proper. The imposition of a penalty in disciplinary proceeding lies in the sole domain of the employer. Unless the penalty is found to be shockingly disproportionate to the charges which are proved, the element of discretion which is attributed to the employer cannot be interfered with. | 1 | 1,184 | 377 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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from service on the ground that it was shockingly disproportionate. The Single Judge substituted it by directing the stoppage of increments for a period of two years without cumulative effect. 4. The two employees, M. Mangayarkarasi and M. Jayalakshmi, were working as Superintendent and Accountant respectively in the District Treasury at Salem. The charges against them were of having admitted and sanctioned bills of the office of the Assistant Commissioner of Commercial Taxes without proper verification, in accordance with the departmental procedures. 5. The case of the State is that during the period 1997-2000, a fraud involving misappropriation of a sum of Rs. 1.22 crores by the staff in the District Treasury Office, Salem came to light involving the presentation of 257 bogus bills in the Treasury. Following the submission of a Special Audit Report, a charge memo was issued against eleven members of the Treasury staff. Charges were framed in the course of the disciplinary proceedings. On the charges having been found to be established, the State Government issued an order of removal from service. 6. The orders of removal were challenged before the learned Single Judge. 7. The learned Single Judge interfered with the punishment on the ground that other employees against whom disciplinary proceedings had been initiated on similar charges had been subjected to a comparatively a lenient punishment of stoppage of increments. 8. The State Government, however, sought to justify the punishment on the ground that the quantum of loss caused due to the production of bogus bills in the case of the two employees was substantially higher. The learned Single Judge rejected this submission on the ground that the court would have to consider only the nature of the charge and not the quantum involved. 9. The Division Bench affirmed the judgment of the learned Single Judge, while dismissing the writ appeals filed by the State of Tamil Nadu. The Division Bench observed that it was conscious of the fact that in cases involving disciplinary proceedings, cases of two employees cannot as such be compared. However, it was of the view that since the charges against all the employees were identical and the employees were in the same cadre of ministerial service, the view of the learned Single Judge in applying parity of treatment could not be faulted. Moreover it was held that the violations were of a procedural nature. 10. On behalf of the appellants, it has been submitted that there is a clear distinction between the case of the two employees in question and others who were awarded minor punishments involving the stoppage of increments. This distinction is sought to be brought out from the following chart which is annexed to the present proceedings; Sl. No. Name of the Delinquent No. of Bills Amount misappropriated 1. J. Nirmaladevi 6 Rs. 2,56,918/- 2. P. Vardharajan 12 Rs. 4,59,527/- 3. R. Anandan 8 Rs. 2,59,576/- 4. R. Raghavan 19 Rs. 6,01,418/- 5. M. Mangayarkarasi 90 Rs. 45,28,003/- 6. M. Jayalakshmi 105 Rs. 51,98,403/- 11. It was urged that the two employees in the present case were involved in the verification of 90 and 105 bills respectively involving misappropriation of an amount of Rs. 45.28 lakhs and 51.98 lakhs respectively. Having regard to the gravity of the misconduct and the amount involved, it was urged on behalf of the appellants that the distinction which was made by the disciplinary authority could not be faulted. 12. On the other hand, it has been urged on behalf of the respondents that the High Court has taken a compassionate view of the matter having regard to the fact that the employees have, in the meantime, retired from service. Moreover, it was sought to be urged that the lapses were procedural and no financial benefit had accrued to the employees. Learned counsel for the respondents also submitted that there is no case of misappropriation against the two employees involved in the present appeals. 13. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted. 14. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. This ex-facie emerges from a perusal of the chart which has been extracted above. The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority. 15. Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous. 16. Third, the approach of both the learned Single Judge and the Division Bench cannot be accepted having due regard to the parameters of judicial review in disciplinary matters. The learned Single Judge substituted the penalty which was imposed by the disciplinary authority, for a penalty which appeared to the Court to be just and proper. The imposition of a penalty in disciplinary proceeding lies in the sole domain of the employer. Unless the penalty is found to be shockingly disproportionate to the charges which are proved, the element of discretion which is attributed to the employer cannot be interfered with.
### Response:
1
### Explanation:
13. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted.14. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. This ex-facie emerges from a perusal of the chart which has been extracted above. The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority.15. Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous.16. Third, the approach of both the learned Single Judge and the Division Bench cannot be accepted having due regard to the parameters of judicial review in disciplinary matters. The learned Single Judge substituted the penalty which was imposed by the disciplinary authority, for a penalty which appeared to the Court to be just and proper. The imposition of a penalty in disciplinary proceeding lies in the sole domain of the employer. Unless the penalty is found to be shockingly disproportionate to the charges which are proved, the element of discretion which is attributed to the employer cannot be interfered with.
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Dutta Associates P.Ltd Vs. Indo Marcantiles P. Ltd | the escalation or deceleration of the market price in the exporting states. We are still not able to understand. Clause (16) deals with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs. 11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit @ Rs. 9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs. 14.72 (the lower figure of the viability range), how could be the appellant have been supplying the same at such a low rate as Rs. 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs. 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs. 11.14. If the lowest quoted rate is Rs. 9.20, it is the rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs. 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs. 9.20p. If that rate was not feasible or economic, he could well have said, sorry. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this Court (which directed the Government to implement the orders of the Guwahati High Court with respect to interim arrangement) negotiation were held with both the appellant and the first respondent herein; both offered to supply at Rs. 9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated 14-10-1996. The rate, however, remains Rs. 9.20p and the appellants counsel has been making a grievance of the Commissioner not accepting the appellants offer. All these facts make the so-called "viability range" looks rather ridiculous - and we are not very far from the end of the three-year period for which the tenders were called for. Neither the interlocutory order of the learned Single Judge dated 2-6-1994 aforesaid nor does the order of the Commissioner dated 14-10-1996 passed pursuant to the interim orders of this Court provide for any fluctuation in the rate of supply depending upon the fluctuation in the market rate in the exporting States, as provided by clause (16) of the Tender Conditions, which too appears rather unusual. The order of the learned Single Judge aforesaid does not also say that the rate specified therein is tentative and that it shall be subject to revision at the final hearing of the writ petition. As a matter of fact, no such revision was made either by the learned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/or its real purpose. Thirdly, the Division Bench states repeatedly in its judgment that having determined the "viability range", the Government called upon only the appellant-Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter-offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs. 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiating factor. 5. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal. 6. Before parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it said :. In a matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government." *" We find it Difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a substantive figure and realising sales tax at a smaller figure. | 1[ds]4. After hearing the parties, we are of the opinion that the entire process leading to the acceptance of the appellants tender is vitiated by more than one illegality. Firstly, the tender notice did not specify the "viability range" nor did say that only the tenders coming within the viability range will be considered. More significantly, the tender notice did not even say that after receiving the tenders, the Commissioner/Government would first determine the "viability range" and would then call upon the lowest eligible tenders to make a counter-offer. The exercise of determining the viability range and calling upon Dutta Associates to make a counter-offer on the alleged ground that he was the lowest tender among the eligible tenderers is outside the tender notice. Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender. They did nothing of that sort. Secondly, we have not been able to understand the very concept of "viability range" though Shri Kapil Sibal, learned counsel for the appellant, and the learned counsel for the State of Assam tried to explain it toare still not able to understand. Clause (16) deals with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs. 11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit @ Rs. 9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs. 14.72 (the lower figure of the viability range), how could be the appellant have been supplying the same at such a low rate as Rs. 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs. 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs. 11.14. If the lowest quoted rate is Rs. 9.20, it is the rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs. 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs. 9.20p. If that rate was not feasible or economic, he could well have said, sorry. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this Court (which directed the Government to implement the orders of the Guwahati High Court with respect to interim arrangement) negotiation were held with both the appellant and the first respondent herein; both offered to supply at Rs. 9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated 14-10-1996. The rate, however, remains Rs. 9.20p and the appellants counsel has been making a grievance of the Commissioner not accepting the appellants offer. All these facts make the so-called "viability range" looks rather ridiculous - and we are not very far from the end of the three-year period for which the tenders were called for. Neither the interlocutory order of the learned Single Judge dated 2-6-1994 aforesaid nor does the order of the Commissioner dated 14-10-1996 passed pursuant to the interim orders of this Court provide for any fluctuation in the rate of supply depending upon the fluctuation in the market rate in the exporting States, as provided by clause (16) of the Tender Conditions, which too appears rather unusual. The order of the learned Single Judge aforesaid does not also say that the rate specified therein is tentative and that it shall be subject to revision at the final hearing of the writ petition. As a matter of fact, no such revision was made either by the learned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/or its real purpose. Thirdly, the Division Bench states repeatedly in its judgment that having determined the "viability range", the Government called upon only the appellant-Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter-offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs. 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiatingIt is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writBefore parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it saida matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government."find it Difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a substantive figure and realising sales tax at a smaller figure | 1 | 2,302 | 1,312 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the escalation or deceleration of the market price in the exporting states. We are still not able to understand. Clause (16) deals with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs. 11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit @ Rs. 9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs. 14.72 (the lower figure of the viability range), how could be the appellant have been supplying the same at such a low rate as Rs. 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs. 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs. 11.14. If the lowest quoted rate is Rs. 9.20, it is the rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs. 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs. 9.20p. If that rate was not feasible or economic, he could well have said, sorry. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this Court (which directed the Government to implement the orders of the Guwahati High Court with respect to interim arrangement) negotiation were held with both the appellant and the first respondent herein; both offered to supply at Rs. 9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated 14-10-1996. The rate, however, remains Rs. 9.20p and the appellants counsel has been making a grievance of the Commissioner not accepting the appellants offer. All these facts make the so-called "viability range" looks rather ridiculous - and we are not very far from the end of the three-year period for which the tenders were called for. Neither the interlocutory order of the learned Single Judge dated 2-6-1994 aforesaid nor does the order of the Commissioner dated 14-10-1996 passed pursuant to the interim orders of this Court provide for any fluctuation in the rate of supply depending upon the fluctuation in the market rate in the exporting States, as provided by clause (16) of the Tender Conditions, which too appears rather unusual. The order of the learned Single Judge aforesaid does not also say that the rate specified therein is tentative and that it shall be subject to revision at the final hearing of the writ petition. As a matter of fact, no such revision was made either by the learned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/or its real purpose. Thirdly, the Division Bench states repeatedly in its judgment that having determined the "viability range", the Government called upon only the appellant-Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter-offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs. 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiating factor. 5. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal. 6. Before parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it said :. In a matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government." *" We find it Difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a substantive figure and realising sales tax at a smaller figure.
### Response:
1
### Explanation:
of "viability range" though Shri Kapil Sibal, learned counsel for the appellant, and the learned counsel for the State of Assam tried to explain it toare still not able to understand. Clause (16) deals with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs. 11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit @ Rs. 9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs. 14.72 (the lower figure of the viability range), how could be the appellant have been supplying the same at such a low rate as Rs. 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs. 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs. 11.14. If the lowest quoted rate is Rs. 9.20, it is the rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs. 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs. 9.20p. If that rate was not feasible or economic, he could well have said, sorry. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this Court (which directed the Government to implement the orders of the Guwahati High Court with respect to interim arrangement) negotiation were held with both the appellant and the first respondent herein; both offered to supply at Rs. 9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated 14-10-1996. The rate, however, remains Rs. 9.20p and the appellants counsel has been making a grievance of the Commissioner not accepting the appellants offer. All these facts make the so-called "viability range" looks rather ridiculous - and we are not very far from the end of the three-year period for which the tenders were called for. Neither the interlocutory order of the learned Single Judge dated 2-6-1994 aforesaid nor does the order of the Commissioner dated 14-10-1996 passed pursuant to the interim orders of this Court provide for any fluctuation in the rate of supply depending upon the fluctuation in the market rate in the exporting States, as provided by clause (16) of the Tender Conditions, which too appears rather unusual. The order of the learned Single Judge aforesaid does not also say that the rate specified therein is tentative and that it shall be subject to revision at the final hearing of the writ petition. As a matter of fact, no such revision was made either by the learned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/or its real purpose. Thirdly, the Division Bench states repeatedly in its judgment that having determined the "viability range", the Government called upon only the appellant-Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter-offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs. 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiatingIt is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writBefore parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it saida matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government."find it Difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a substantive figure and realising sales tax at a smaller figure
|
State Of Tamil Nadu Etc Vs. Cement Distributors Private Ltd. Etc. Etc | it has accepted the Tariff Commissions recommendations in respect of the fixation of the packing charges and the principle that would be adopted was on the basis of the average of the maximum and minimum market price of the packing material during each week of the 9 months immediately preceding the quarter for which the charges were to be in force plus Rupees 1.25 per ton to cover incidental charges. By its telegram dated February 17, 1961, the Central Government informed all the State Governments that having regard to the prevailing jute bag price, the government was pleased to fix under Clause 6 (4) of the Cement Control Order, 1958 the charges for packing cement in D. W. as well as serviceable second hand D.W. Heavy Cases Jute Bags at Rupees 17/- per ton for the period effective from the 20th of February to the 31st March 1961.From these orders, it is clear that the Government of India was purporting to fix the price of the gunny bags in which the producers were required to supply cement to the State Trading Corporation. The learned Advocate-General of Tamil Nadu contended that the Central Government under Clause 6 (4) of the Cement Control Order, 1958 could have fixed only the maximum price of gunny bags and not the actual price; that being so, there was scope for bargaining between the producers of the cement and the State Trading Corporation. This contention has not been taken in the High Court nor in the appeal memo. The Central Government has not put in its appearance in this Court. Hence we cannot go into the question whether the Central Government had power to fix the actual price of the gunny bags. The fact remains, that the Central Government had fixed the actual price of the gunny bags. Its right to fix the price had not been disputed in the pleadings before the High Court nor does it appear from the judgment of the High Court that that question was urged before it. It is raised for the first time at the hearing.In the result, for the reasons mentioned above the contention that supplies of gunny bags by the producers amounted to "sales" must be rejected.4. Now coming to the contention raised in the other appeals which also arises in some of the appeals earlier considered, it relates to the interpretation of Rule 6 (f) of the rules framed under the Madras General Sales Tax Act, 1959. That rule as it stood upto September 1963 read thus:"All amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing and delivery and other such like services." On September 27, 1963, this rule was recast thus :"All amounts falling under the following three heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing, that is to say, cost of packing materials and cost of labour;(iii) charges for delivery and other such like services."This rule was again recast on March 9, 1964. The rule reframed reads thus:"All amounts falling under the following three heads when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing, that is to say, cost of packing materials and cost of labour and other such like services;(iii) charges for delivery."In the above group of appeals, some relate to the assessment years 1962-63 and 1963-64.5. Mr. S. T. Desai, learned counsel appearing for the State of Tamil Nadu in this group of appeals contended that the rule as it stood till September 1963, merely provided for exemption of service charges for packing and not the cost of packing material. It is not disputed that the price of the packing materials was separately charged in the bills issued. In support of his contention that price of packing material is not covered by the rule in question. Mr. Desai relied on the decision of the Madras High Court in State of Madras v. K. Damodaran Chettiar and Co., (1966) 18 STC 451 (Mad) . This decision undoubtedly supports Mr. Desais contention; but the learned Judges who decided that case overlooked an earlier decision of that High Court in the State of Madras, In re, (1956) 7 STC 355 (Mad) . In that case Rajagopalan and Rajagopala Ayyangar, JJ. had taken the view that a rule identical in terms with Rule 6 (f) as it stood till September, 1963 exempted the price of the packing material as well. We are entirely in agreement with the view taken by the learned Judges in that case. The charges for packing include both the price of the packing material as well as the labour charges relating to packing. The words in sub-clause (ii) of rule 6 (f) "and other such like services" in our opinion refer to the word "delivery" immediately preceding those words. The subsequent changes effected in the rule merely clarified the intention of the rule-making authority. We hold that Damodaran Chettiars case (supra) was not correctly decided.6. At the hearing a new contention was sought to be raised by Mr. S. T. Desai. He sought to urge that the exemption given for packing material must be held to be not available in respect of the cases arising under the Central Sales Tax Act (some of the appeals relate to assessments under the Central Sales Tax Act) in view of certain amendments made in the Central Sales Tax in 1969, with retrospective effect after the disposal of the petitions by the High Court. We did not permit him to raise that totally new contention as the same was not raised either in the petitions of appeal or by any special application. Further the appellant did not serve any notice on the respondents informing them of its intention to raise that question at the hearing. | 0[ds]The Central Government by its letter dated December 26, 1959 informed the State Trading Corporation that it has accepted the Tariff Commissions recommendations in respect of the fixation of the packing charges and the principle that would be adopted was on the basis of the average of the maximum and minimum market price of the packing material during each week of the 9 months immediately preceding the quarter for which the charges were to be in force plus Rupees 1.25 per ton to cover incidental charges. By its telegram dated February 17, 1961, the Central Government informed all the State Governments that having regard to the prevailing jute bag price, the government was pleased to fix under Clause 6 (4) of the Cement Control Order, 1958 the charges for packing cement in D. W. as well as serviceable second hand D.W. Heavy Cases Jute Bags at Rupees 17/- per ton for the period effective from the 20th of February to the 31st March 1961.From these orders, it is clear that the Government of India was purporting to fix the price of the gunny bags in which the producers were required to supply cement to the State Trading Corporation.The learned Advocate-General of Tamil Nadu contended that the Central Government under Clause 6 (4) of the Cement Control Order, 1958 could have fixed only the maximum price of gunny bags and not the actual price; that being so, there was scope for bargaining between the producers of the cement and the State Trading Corporation.This contention has not been taken in the High Court nor in the appeal memo. The Central Government has not put in its appearance in this Court. Hence we cannot go into the question whether the Central Government had power to fix the actual price of the gunny bags. The fact remains, that the Central Government had fixed the actual price of the gunny bags. Its right to fix the price had not been disputed in the pleadings before the High Court nor does it appear from the judgment of the High Court that that question was urged before it. It is raised for the first time at theare entirely in agreement with the view taken by the learned Judges in that case. The charges for packing include both the price of the packing material as well as the labour charges relating to packing. The words in sub-clause (ii) of rule 6 (f) "and other such like services" in our opinion refer to the word "delivery" immediately preceding those words. The subsequent changes effected in the rule merely clarified the intention of the rule-making authority. We hold that Damodaran Chettiars case (supra) was not correctlydid not permit him to raise that totally new contention as the same was not raised either in the petitions of appeal or by any special application. Further the appellant did not serve any notice on the respondents informing them of its intention to raise that question at the hearing. | 0 | 1,715 | 537 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
it has accepted the Tariff Commissions recommendations in respect of the fixation of the packing charges and the principle that would be adopted was on the basis of the average of the maximum and minimum market price of the packing material during each week of the 9 months immediately preceding the quarter for which the charges were to be in force plus Rupees 1.25 per ton to cover incidental charges. By its telegram dated February 17, 1961, the Central Government informed all the State Governments that having regard to the prevailing jute bag price, the government was pleased to fix under Clause 6 (4) of the Cement Control Order, 1958 the charges for packing cement in D. W. as well as serviceable second hand D.W. Heavy Cases Jute Bags at Rupees 17/- per ton for the period effective from the 20th of February to the 31st March 1961.From these orders, it is clear that the Government of India was purporting to fix the price of the gunny bags in which the producers were required to supply cement to the State Trading Corporation. The learned Advocate-General of Tamil Nadu contended that the Central Government under Clause 6 (4) of the Cement Control Order, 1958 could have fixed only the maximum price of gunny bags and not the actual price; that being so, there was scope for bargaining between the producers of the cement and the State Trading Corporation. This contention has not been taken in the High Court nor in the appeal memo. The Central Government has not put in its appearance in this Court. Hence we cannot go into the question whether the Central Government had power to fix the actual price of the gunny bags. The fact remains, that the Central Government had fixed the actual price of the gunny bags. Its right to fix the price had not been disputed in the pleadings before the High Court nor does it appear from the judgment of the High Court that that question was urged before it. It is raised for the first time at the hearing.In the result, for the reasons mentioned above the contention that supplies of gunny bags by the producers amounted to "sales" must be rejected.4. Now coming to the contention raised in the other appeals which also arises in some of the appeals earlier considered, it relates to the interpretation of Rule 6 (f) of the rules framed under the Madras General Sales Tax Act, 1959. That rule as it stood upto September 1963 read thus:"All amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing and delivery and other such like services." On September 27, 1963, this rule was recast thus :"All amounts falling under the following three heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing, that is to say, cost of packing materials and cost of labour;(iii) charges for delivery and other such like services."This rule was again recast on March 9, 1964. The rule reframed reads thus:"All amounts falling under the following three heads when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) charges for packing, that is to say, cost of packing materials and cost of labour and other such like services;(iii) charges for delivery."In the above group of appeals, some relate to the assessment years 1962-63 and 1963-64.5. Mr. S. T. Desai, learned counsel appearing for the State of Tamil Nadu in this group of appeals contended that the rule as it stood till September 1963, merely provided for exemption of service charges for packing and not the cost of packing material. It is not disputed that the price of the packing materials was separately charged in the bills issued. In support of his contention that price of packing material is not covered by the rule in question. Mr. Desai relied on the decision of the Madras High Court in State of Madras v. K. Damodaran Chettiar and Co., (1966) 18 STC 451 (Mad) . This decision undoubtedly supports Mr. Desais contention; but the learned Judges who decided that case overlooked an earlier decision of that High Court in the State of Madras, In re, (1956) 7 STC 355 (Mad) . In that case Rajagopalan and Rajagopala Ayyangar, JJ. had taken the view that a rule identical in terms with Rule 6 (f) as it stood till September, 1963 exempted the price of the packing material as well. We are entirely in agreement with the view taken by the learned Judges in that case. The charges for packing include both the price of the packing material as well as the labour charges relating to packing. The words in sub-clause (ii) of rule 6 (f) "and other such like services" in our opinion refer to the word "delivery" immediately preceding those words. The subsequent changes effected in the rule merely clarified the intention of the rule-making authority. We hold that Damodaran Chettiars case (supra) was not correctly decided.6. At the hearing a new contention was sought to be raised by Mr. S. T. Desai. He sought to urge that the exemption given for packing material must be held to be not available in respect of the cases arising under the Central Sales Tax Act (some of the appeals relate to assessments under the Central Sales Tax Act) in view of certain amendments made in the Central Sales Tax in 1969, with retrospective effect after the disposal of the petitions by the High Court. We did not permit him to raise that totally new contention as the same was not raised either in the petitions of appeal or by any special application. Further the appellant did not serve any notice on the respondents informing them of its intention to raise that question at the hearing.
### Response:
0
### Explanation:
The Central Government by its letter dated December 26, 1959 informed the State Trading Corporation that it has accepted the Tariff Commissions recommendations in respect of the fixation of the packing charges and the principle that would be adopted was on the basis of the average of the maximum and minimum market price of the packing material during each week of the 9 months immediately preceding the quarter for which the charges were to be in force plus Rupees 1.25 per ton to cover incidental charges. By its telegram dated February 17, 1961, the Central Government informed all the State Governments that having regard to the prevailing jute bag price, the government was pleased to fix under Clause 6 (4) of the Cement Control Order, 1958 the charges for packing cement in D. W. as well as serviceable second hand D.W. Heavy Cases Jute Bags at Rupees 17/- per ton for the period effective from the 20th of February to the 31st March 1961.From these orders, it is clear that the Government of India was purporting to fix the price of the gunny bags in which the producers were required to supply cement to the State Trading Corporation.The learned Advocate-General of Tamil Nadu contended that the Central Government under Clause 6 (4) of the Cement Control Order, 1958 could have fixed only the maximum price of gunny bags and not the actual price; that being so, there was scope for bargaining between the producers of the cement and the State Trading Corporation.This contention has not been taken in the High Court nor in the appeal memo. The Central Government has not put in its appearance in this Court. Hence we cannot go into the question whether the Central Government had power to fix the actual price of the gunny bags. The fact remains, that the Central Government had fixed the actual price of the gunny bags. Its right to fix the price had not been disputed in the pleadings before the High Court nor does it appear from the judgment of the High Court that that question was urged before it. It is raised for the first time at theare entirely in agreement with the view taken by the learned Judges in that case. The charges for packing include both the price of the packing material as well as the labour charges relating to packing. The words in sub-clause (ii) of rule 6 (f) "and other such like services" in our opinion refer to the word "delivery" immediately preceding those words. The subsequent changes effected in the rule merely clarified the intention of the rule-making authority. We hold that Damodaran Chettiars case (supra) was not correctlydid not permit him to raise that totally new contention as the same was not raised either in the petitions of appeal or by any special application. Further the appellant did not serve any notice on the respondents informing them of its intention to raise that question at the hearing.
|
The Management of Regional Chief Engineer P.H.E.D. Ranchi Vs. Their Workmen | The Appellant is the Department of the State of Jharkhand [Public Health and Engineering Department (PHED)] whereas the Respondent is the Workmen Union representing the interest of the workmen working in the Public Health and Engineering Department (PHED). 5. The State made a reference Under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the Respondent Union to decide the following dispute: Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule K in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to?6. By award dated 29.06.2005, the Labour Court (Annex. P1) answered the reference in Respondent-Unions favour and directed reinstatement of 37 workmen with payment of full back-wages in Reference Case No. 6 of 2002. 7. The Appellant (employer), felt aggrieved by the award of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, dismissed the writ petition filed by the Appellant and affirmed the award passed by the Labour Court. 8. Being aggrieved by the order of the Single Judge, the Appellant filed intra court appeal. By impugned order, the Division Bench of the High Court dismissed the appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the Appellant-employer in this Court. 9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back-wages to the workmen in place of full wages. 10. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.) (2003) 6 SCC 141 , G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 , U.P. State Brassware Corporation v. Uday Narain Pandey (2006) 1 SCC 479 , J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. (2007) 2 SCC 433 , Metropolitan Transport Corporation v. Venkatesan (2009) 9 SCC 601 , Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. (2009) 15 SCC 327 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) (2013) 10 SCC 324. 13. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 14. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back-wages enabling the Court to award the back-wages. 15. On the other hand, we find that the Labour Court in one line simply directed the Appellant (employer) to pay full back-wages for a long period to 37 workmen while directing their reinstatement in service. 16. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case. In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase (supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the Appellant (employer). | 1[ds]9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back-wages to the workmen in place of full wages.10. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.) (2003) 6 SCC 141 , G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 , U.P. State Brassware Corporation v. Uday Narain Pandey (2006) 1 SCC 479 , J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. (2007) 2 SCC 433 , Metropolitan Transport Corporation v. Venkatesan (2009) 9 SCC 601 , Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. (2009) 15 SCC 327 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) (2013) 10 SCC 324. 13. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.14. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back-wages enabling the Court to award the back-wages.15. On the other hand, we find that the Labour Court in one line simply directed the Appellant (employer) to pay full back-wages for a long period to 37 workmen while directing their reinstatement in service.16. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case. In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase (supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject.17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the Appellant (employer). | 1 | 1,360 | 845 | ### 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 Appellant is the Department of the State of Jharkhand [Public Health and Engineering Department (PHED)] whereas the Respondent is the Workmen Union representing the interest of the workmen working in the Public Health and Engineering Department (PHED). 5. The State made a reference Under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the Respondent Union to decide the following dispute: Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule K in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to?6. By award dated 29.06.2005, the Labour Court (Annex. P1) answered the reference in Respondent-Unions favour and directed reinstatement of 37 workmen with payment of full back-wages in Reference Case No. 6 of 2002. 7. The Appellant (employer), felt aggrieved by the award of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, dismissed the writ petition filed by the Appellant and affirmed the award passed by the Labour Court. 8. Being aggrieved by the order of the Single Judge, the Appellant filed intra court appeal. By impugned order, the Division Bench of the High Court dismissed the appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the Appellant-employer in this Court. 9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back-wages to the workmen in place of full wages. 10. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.) (2003) 6 SCC 141 , G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 , U.P. State Brassware Corporation v. Uday Narain Pandey (2006) 1 SCC 479 , J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. (2007) 2 SCC 433 , Metropolitan Transport Corporation v. Venkatesan (2009) 9 SCC 601 , Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. (2009) 15 SCC 327 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) (2013) 10 SCC 324. 13. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 14. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back-wages enabling the Court to award the back-wages. 15. On the other hand, we find that the Labour Court in one line simply directed the Appellant (employer) to pay full back-wages for a long period to 37 workmen while directing their reinstatement in service. 16. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case. In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase (supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the Appellant (employer).
### Response:
1
### Explanation:
9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back-wages to the workmen in place of full wages.10. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee (Smt.) (2003) 6 SCC 141 , G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591 , U.P. State Brassware Corporation v. Uday Narain Pandey (2006) 1 SCC 479 , J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. (2007) 2 SCC 433 , Metropolitan Transport Corporation v. Venkatesan (2009) 9 SCC 601 , Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. (2009) 15 SCC 327 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) (2013) 10 SCC 324. 13. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.14. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back-wages enabling the Court to award the back-wages.15. On the other hand, we find that the Labour Court in one line simply directed the Appellant (employer) to pay full back-wages for a long period to 37 workmen while directing their reinstatement in service.16. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case. In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase (supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject.17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the Appellant (employer).
|
Union of India (UOI) and Ors Vs. Krishna Kumar and Ors | fundamental rights Under Articles 14 and 16 of the Constitution. Learned Counsel submits that under the Rules, as they prevailed prior to the restructuring of Assam Rifles, promotion for Havildars lay to the post of Warrant Officer. While the Respondents have not challenged the Recruitment Rules, as noted by the High Court, they urge that vacancies which have arisen prior to 2011 must be filled up by promoting Havildars eligible for promotion to the post of Naib Subedars.11. In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no Rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal v. Union of India (1997) 11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two-Judge Bench of this Court held thus:"...Such an introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created prospectively for future promotions from Group-B Class-II to Group-A Class-I. If, before these Rules of 1981 came into force, these officers were eligible to be directly promoted as Commandant under the 1974 Rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights."12. In Deepak Agarwal v. State of Uttar Pradesh (2011) 6 SCC 725 , this Court observed thus:"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the rules in force on the date the consideration took place. There is no Rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old Rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiahs case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the Appellants have been taken away by the amendment. The judgments cited by learned Counsel for the Appellants namely B.L. Gupta v. MCD (supra), P. Ganeshwar Rao v. State of Andhra Pradesh (supra) and N.T. Devin Katti and Ors. v. Karnataka Public Service Commission and Ors. (supra) are reiterations of a principle laid down in Y.V. Rangaiahs case (supra)."13. Recently, in State of Tripura v. Nikhil Ranjan Chakraborty (2017) 3 SCC 646 , another two-Judge Bench of this Court held thus:"The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no Rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ Petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion. | 1[ds]11. In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no Rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal v. Union of India (1997) 11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two-Judge Bench of this Court heldan introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created prospectively for future promotions from Group-B Class-II to Group-A Class-I. If, before these Rules of 1981 came into force, these officers were eligible to be directly promoted as Commandant under the 1974 Rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights.In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion. | 1 | 2,064 | 509 | ### 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:
fundamental rights Under Articles 14 and 16 of the Constitution. Learned Counsel submits that under the Rules, as they prevailed prior to the restructuring of Assam Rifles, promotion for Havildars lay to the post of Warrant Officer. While the Respondents have not challenged the Recruitment Rules, as noted by the High Court, they urge that vacancies which have arisen prior to 2011 must be filled up by promoting Havildars eligible for promotion to the post of Naib Subedars.11. In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no Rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal v. Union of India (1997) 11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two-Judge Bench of this Court held thus:"...Such an introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created prospectively for future promotions from Group-B Class-II to Group-A Class-I. If, before these Rules of 1981 came into force, these officers were eligible to be directly promoted as Commandant under the 1974 Rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights."12. In Deepak Agarwal v. State of Uttar Pradesh (2011) 6 SCC 725 , this Court observed thus:"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the rules in force on the date the consideration took place. There is no Rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old Rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiahs case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the Appellants have been taken away by the amendment. The judgments cited by learned Counsel for the Appellants namely B.L. Gupta v. MCD (supra), P. Ganeshwar Rao v. State of Andhra Pradesh (supra) and N.T. Devin Katti and Ors. v. Karnataka Public Service Commission and Ors. (supra) are reiterations of a principle laid down in Y.V. Rangaiahs case (supra)."13. Recently, in State of Tripura v. Nikhil Ranjan Chakraborty (2017) 3 SCC 646 , another two-Judge Bench of this Court held thus:"The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no Rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ Petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.
### Response:
1
### Explanation:
11. In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no Rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal v. Union of India (1997) 11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two-Judge Bench of this Court heldan introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created prospectively for future promotions from Group-B Class-II to Group-A Class-I. If, before these Rules of 1981 came into force, these officers were eligible to be directly promoted as Commandant under the 1974 Rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights.In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.
|
Dindyal & Anr Vs. Rajaram | period of limitation so prescribed shall be dismissed. Article 1 of the Second Schedule is as follows : Description of suit or Application. Period of limitation. Time from which period begins to run For possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person. Three years. The date of dispossession or exclusion. 10. Admittedly the suit properties were held on tenancy right. Girdharilal was the protected tenant of those properties. Under the gift mentioned earlier, the plaintiffs became the tenants of those properties. In view of Article 1 of the Second Schedule read with Section 104(1) of the Act, the plaintiffs as tenants could not have sued for possession of the suit properties after June 1, 1954. It was urged on behalf of the appellants that in view of the principle underlying Section 28 of the Indian Limitation Act, 1908, which principle is not confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiffs right to the suit properties must be held to have been extinguished. In other words, the contention was that in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself had been extinguished. It is well settled that the principle underlying Section 28 of the Indian Limitation Act, 1908 (same as Section 27 of the Indian Limitation Act, 1963) is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act. 10. Article 1 of the second schedule to the Act applies only to suits brought by a person claiming to be a tenant for possession of a holding from which he has been dispossessed or excluded from possession by any person. In other words before this Article can apply, the following conditions must be fulfilled.(1) The plaintiffs must claim to be the tenant of the holding which is the subject matter of the suit; (2) The suit must be one for possession and (3) The suit must be on the ground that he had been dispossessed or excluded from possession by any person. 11. Though the plaintiffs in this suit were at one time the tenants in the suit holding in view of the gift in favour of their mother, they have not brought the present suit as tenants of that holding. They have brought it on the strength of their title as the nearest reversioners to Girdharilal. Nor is their dispossession in 1951 a part of the cause of action for the present suit. This is not a suit for possession on the ground that the plaintiffs had been earlier dispossessed. This is a suit for possession on the strength of the new title acquired by the plaintiffs after the death of Ladli Bahu. Therefore Article 1 of the second schedule does not apply to the present suit. The limitation for this suit is governed by the provisions of the Limitation Act, 1908. 12. Further it is one thing to say that a tenant who was in possession of the tenancy holding at the time of dispossession had lost his rights in the holding but it is another thing to say that a trespasser had become the tenant of that holding at the end of the prescribed period.It must be remembered that C. P. Tenancy Act is a special Act. It only governs those matters for which provisions is made therein. In other respects the general law continues to apply. The Act does say that a tenants right in respect of any property can be acquired by adverse possession. We do not think that the provisions of the Act enabled (The Act has been repealed) a trespasser to impose himself as a tenant on the landlord by means of adverse possession of the holding as against the tenant of a period of three years. Similarly, it is not possible to hold that a tenancy right could have been acquired in a holding so as to affect the rights of third parties by being in wrongful possession of that holding for a period of three years. If it is otherwise, valuable rights of third parties could have been jeopardised for no fault of theirs.Take the case of a widow, who was in possession of a tenancy holding. The prospective reversioners to her husbands estate would have had no right in that holding during her life time. Is it reasonable to hold that the reversioner would have lost his rights in the holding even before he acquired them because some one was in possession of that holding adversely to the widow for a period of three years? That would not have been the position even under Article 144 of the Limitation Act, 1908. It could not be different under the Act.A right cannot be barred even before it accrues. The fact that the tenant dispossessed happened to become the reversioner on the death of the widow cannot make any difference in law. 13. In 1951, the plaintiffs had two different rights over the suit properties - one under the gift referred to earlier and the other as reversioner. One was an existing right, the other was a prospective one. Their right under the gift must be held to have been extinguished under Article 1, "Sch. II read with Section 104 of the Act.But their right to those properties, as reversioners arose only after the death of Ladli Bahu. That right could not have been barred even before it accrued. As against the prospective reversioners Ladli Bahu was holding the suit properties as a trespasser. She had acquired no rights in those properties as against them. Till her death, it was not possible under law to predicate who would have been her husbands nearest revisioner on the date of her death. 14. In | 0[ds]7. The High Court and the courts below have come to the conclusion that the gift made by Ladli Bahu in favour of Nanni Bai is a valid gift and that Nanni Bai came into possession of the suit properties on the strength of that gift. Hence she must be held to have had no interest in those properties thereafter. Therefore when Ladli Bahu took possession of those properties in 1951, she did so as a trespasser. This conclusion, in our opinion, is unassailable.If we come to the conclusion that she continued as a trespasser on the date the Hindu Succession Act, came into force and even thereafter till her death then she cannot be held to have acquired any right under the Hindu Succession Act because before, any property can be said to be "possessed" by a Hindu woman, as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively - See S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp (2) SCR 418 = (AIR 1962 SC 1493 ); Kuldip Singh v. Surain Singh, Civil Appeal No. 138 of 1964 D/- 1-5-1967 (SC)14. In1951, the plaintiffs had two different rights over the suit properties - one under the gift referred to earlier and the other as reversioner. One was an existing right, the other was a prospective one. Their right under the gift must be held to have been extinguished under Article 1, "Sch. II read with Section 104 of the Act.But their right to those properties, as reversioners arose only after the death of Ladli Bahu. That right could not have been barred even before it accrued. As against the prospective reversioners Ladli Bahu was holding the suit properties as a trespasser. She had acquired no rights in those properties as against them. Till her death, it was not possible under law to predicate who would have been her husbands nearest revisioner on the date of her death. | 0 | 2,230 | 403 | ### 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:
period of limitation so prescribed shall be dismissed. Article 1 of the Second Schedule is as follows : Description of suit or Application. Period of limitation. Time from which period begins to run For possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person. Three years. The date of dispossession or exclusion. 10. Admittedly the suit properties were held on tenancy right. Girdharilal was the protected tenant of those properties. Under the gift mentioned earlier, the plaintiffs became the tenants of those properties. In view of Article 1 of the Second Schedule read with Section 104(1) of the Act, the plaintiffs as tenants could not have sued for possession of the suit properties after June 1, 1954. It was urged on behalf of the appellants that in view of the principle underlying Section 28 of the Indian Limitation Act, 1908, which principle is not confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiffs right to the suit properties must be held to have been extinguished. In other words, the contention was that in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself had been extinguished. It is well settled that the principle underlying Section 28 of the Indian Limitation Act, 1908 (same as Section 27 of the Indian Limitation Act, 1963) is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act. 10. Article 1 of the second schedule to the Act applies only to suits brought by a person claiming to be a tenant for possession of a holding from which he has been dispossessed or excluded from possession by any person. In other words before this Article can apply, the following conditions must be fulfilled.(1) The plaintiffs must claim to be the tenant of the holding which is the subject matter of the suit; (2) The suit must be one for possession and (3) The suit must be on the ground that he had been dispossessed or excluded from possession by any person. 11. Though the plaintiffs in this suit were at one time the tenants in the suit holding in view of the gift in favour of their mother, they have not brought the present suit as tenants of that holding. They have brought it on the strength of their title as the nearest reversioners to Girdharilal. Nor is their dispossession in 1951 a part of the cause of action for the present suit. This is not a suit for possession on the ground that the plaintiffs had been earlier dispossessed. This is a suit for possession on the strength of the new title acquired by the plaintiffs after the death of Ladli Bahu. Therefore Article 1 of the second schedule does not apply to the present suit. The limitation for this suit is governed by the provisions of the Limitation Act, 1908. 12. Further it is one thing to say that a tenant who was in possession of the tenancy holding at the time of dispossession had lost his rights in the holding but it is another thing to say that a trespasser had become the tenant of that holding at the end of the prescribed period.It must be remembered that C. P. Tenancy Act is a special Act. It only governs those matters for which provisions is made therein. In other respects the general law continues to apply. The Act does say that a tenants right in respect of any property can be acquired by adverse possession. We do not think that the provisions of the Act enabled (The Act has been repealed) a trespasser to impose himself as a tenant on the landlord by means of adverse possession of the holding as against the tenant of a period of three years. Similarly, it is not possible to hold that a tenancy right could have been acquired in a holding so as to affect the rights of third parties by being in wrongful possession of that holding for a period of three years. If it is otherwise, valuable rights of third parties could have been jeopardised for no fault of theirs.Take the case of a widow, who was in possession of a tenancy holding. The prospective reversioners to her husbands estate would have had no right in that holding during her life time. Is it reasonable to hold that the reversioner would have lost his rights in the holding even before he acquired them because some one was in possession of that holding adversely to the widow for a period of three years? That would not have been the position even under Article 144 of the Limitation Act, 1908. It could not be different under the Act.A right cannot be barred even before it accrues. The fact that the tenant dispossessed happened to become the reversioner on the death of the widow cannot make any difference in law. 13. In 1951, the plaintiffs had two different rights over the suit properties - one under the gift referred to earlier and the other as reversioner. One was an existing right, the other was a prospective one. Their right under the gift must be held to have been extinguished under Article 1, "Sch. II read with Section 104 of the Act.But their right to those properties, as reversioners arose only after the death of Ladli Bahu. That right could not have been barred even before it accrued. As against the prospective reversioners Ladli Bahu was holding the suit properties as a trespasser. She had acquired no rights in those properties as against them. Till her death, it was not possible under law to predicate who would have been her husbands nearest revisioner on the date of her death. 14. In
### Response:
0
### Explanation:
7. The High Court and the courts below have come to the conclusion that the gift made by Ladli Bahu in favour of Nanni Bai is a valid gift and that Nanni Bai came into possession of the suit properties on the strength of that gift. Hence she must be held to have had no interest in those properties thereafter. Therefore when Ladli Bahu took possession of those properties in 1951, she did so as a trespasser. This conclusion, in our opinion, is unassailable.If we come to the conclusion that she continued as a trespasser on the date the Hindu Succession Act, came into force and even thereafter till her death then she cannot be held to have acquired any right under the Hindu Succession Act because before, any property can be said to be "possessed" by a Hindu woman, as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively - See S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp (2) SCR 418 = (AIR 1962 SC 1493 ); Kuldip Singh v. Surain Singh, Civil Appeal No. 138 of 1964 D/- 1-5-1967 (SC)14. In1951, the plaintiffs had two different rights over the suit properties - one under the gift referred to earlier and the other as reversioner. One was an existing right, the other was a prospective one. Their right under the gift must be held to have been extinguished under Article 1, "Sch. II read with Section 104 of the Act.But their right to those properties, as reversioners arose only after the death of Ladli Bahu. That right could not have been barred even before it accrued. As against the prospective reversioners Ladli Bahu was holding the suit properties as a trespasser. She had acquired no rights in those properties as against them. Till her death, it was not possible under law to predicate who would have been her husbands nearest revisioner on the date of her death.
|
Govt. Of State Of Bihar & Ors Vs. Ram Bharosa Singh & Anr | 2, on the other. The District Magistrate, Patna, notified that a public auction of the ferries would be held on 22-12-1952, for the grant of a lease for a period of three years with effect from 1-4-1953, to 31-3-1956. But later, he withdrew the tolls from public auction, as it was decided to extend the term of the already existing lease of the ferries in favour of respondent 2 for a further period of two years with effect from 1-4-1953. A fresh lease deed was executed on 20-12-1952 for a period of two years and it was also registered. Complaints to the District Magistrate, the Commissioner and to the Government by respondent 1 proved of no. avail and therefore he moved the High Court of Patna under Art. 226 for a writ of mandamus. The High Court granted the petition, holding that the action of the District Magistrate in withdrawing the public auction under orders of the State Government was not lawful, as it was not on his own initiative, which is what is required by the statute, and that there was no. right under the Act or the rules to extend the term of a subsisting lease. A writ was, therefore, issued canceling the order of the Direct Magistrate, Patna, withdrawing the public auction and commanding him to issue a fresh notification for holding a public auction.3. After the expiry of the two years term on 20-12-1954, there was a fresh auction in which both respondents 1 and 2 became lessees.4. So, we are not now concerned, therefore, with any rights inter se between the two respondents. The Government of the State of Bihar is interested only in the question of the correctness of the construction placed upon the Act and the Rules by the High Court. The learned Advocate-General for the State invited us to express our view on the question whether the District Magistrate has any power to extend the term of a lease granted as the result of a public auction. This he wanted for the future guidance of the State.5. We are in full agreement with the view taken by the High Court. Sections 7, 8, and 9 of the Bengal Ferries Act run thus : --"7. The control of all public ferries shall be vested in the magistrate of the district, subject to the direction of the Commissioner.""8. The immediate superintendence of every public ferry shall be vested in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint.Any such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorised tolls leviable thereat.""9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct. The Magistrate of the district or the officer authorised by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfillment, "6. The rule making power is conferred on the District Magistrate by Section 15 and it is sufficient for our present purposes to set out only the earlier part of the section in these terms : --"The Magistrate of the district, with the approval of the Commissioner may from time to time make rules consistent with this Act : -- (a) for the management of all public ferries within such district, and for regulating the traffic at such ferries; (b) for regulating the time and manner at and in which the terms in which and the person by whom, the tolls of such ferries may be leased by auction ; (c) for compensating persons who have compounded for tolls payable for the use of any such ferry when such ferry has been discontinued before the expiration of the period compounded for ; and (d) generally to carry out the purposes of this Act : "Rule 2 says : -"Every Patna - Ganges ferry shall either be held khas by the Magistrate or be leased by public auction ."Rule 7 (d) on which the learned Advocate-General relied provides : --"The maximum period for which a lease may be granted shall not exceed three years at a time."7. The intendment or the scheme of the Act and the rules is either to have khas possession of the ferries in the District Magistrate or to hold a public auction for the grant of a lease. There is no. power express or implied for extension of a term of lease already granted. It is no. doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept another bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure. The maximum term cannot exceed three years and at the end of it there has to be a public auction to ascertain the bids, the reason for insistence on a public auction can be guessed. As is pointed out in The State of Assam v. Keshab Prasad Singh, 1953 S. C R 865 : (A I R 1955 S. C 309) (A) it is probably a statutory safeguard against arbitrary executive action. | 0[ds]5. We are in full agreement with the view taken by the High Court. Sections 7, 8, and 9 of the Bengal Ferries Act run thusThe control of all public ferries shall be vested in the magistrate of the district, subject to the direction of the Commissioner.""8. The immediate superintendence of every public ferry shall be vested in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint.Any such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorised tolls leviable thereat.""9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct. The Magistrate of the district or the officer authorised by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfillment, "6. The rule making power is conferred on the District Magistrate by Section 15 and it is sufficient for our present purposes to set out only the earlier part of the section in these termsMagistrate of the district, with the approval of the Commissioner may from time to time make rules consistent with this Actfor the management of all public ferries within such district, and for regulating the traffic at such ferries; (b) for regulating the time and manner at and in which the terms in which and the person by whom, the tolls of such ferries may be leased by auction ; (c) for compensating persons who have compounded for tolls payable for the use of any such ferry when such ferry has been discontinued before the expiration of the period compounded for ; and (d) generally to carry out the purposes of this Act : "Rule 2 saysPatna - Ganges ferry shall either be held khas by the Magistrate or be leased by public auction ."Rule 7 (d) on which the learned Advocate-General relied providesmaximum period for which a lease may be granted shall not exceed three years at a time."7. The intendment or the scheme of the Act and the rules is either to have khas possession of the ferries in the District Magistrate or to hold a public auction for the grant of a lease. There is no. power express or implied for extension of a term of lease already granted. It is no. doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept another bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure. The maximum term cannot exceed three years and at the end of it there has to be a public auction to ascertain the bids, the reason for insistence on a public auction can be guessed. As is pointed out in The State of Assam v. Keshab Prasad Singh, 1953 S. C R 865 : (A I R 1955 S. C 309) (A) it is probably a statutory safeguard against arbitrary executive action. | 0 | 1,188 | 711 | ### 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:
2, on the other. The District Magistrate, Patna, notified that a public auction of the ferries would be held on 22-12-1952, for the grant of a lease for a period of three years with effect from 1-4-1953, to 31-3-1956. But later, he withdrew the tolls from public auction, as it was decided to extend the term of the already existing lease of the ferries in favour of respondent 2 for a further period of two years with effect from 1-4-1953. A fresh lease deed was executed on 20-12-1952 for a period of two years and it was also registered. Complaints to the District Magistrate, the Commissioner and to the Government by respondent 1 proved of no. avail and therefore he moved the High Court of Patna under Art. 226 for a writ of mandamus. The High Court granted the petition, holding that the action of the District Magistrate in withdrawing the public auction under orders of the State Government was not lawful, as it was not on his own initiative, which is what is required by the statute, and that there was no. right under the Act or the rules to extend the term of a subsisting lease. A writ was, therefore, issued canceling the order of the Direct Magistrate, Patna, withdrawing the public auction and commanding him to issue a fresh notification for holding a public auction.3. After the expiry of the two years term on 20-12-1954, there was a fresh auction in which both respondents 1 and 2 became lessees.4. So, we are not now concerned, therefore, with any rights inter se between the two respondents. The Government of the State of Bihar is interested only in the question of the correctness of the construction placed upon the Act and the Rules by the High Court. The learned Advocate-General for the State invited us to express our view on the question whether the District Magistrate has any power to extend the term of a lease granted as the result of a public auction. This he wanted for the future guidance of the State.5. We are in full agreement with the view taken by the High Court. Sections 7, 8, and 9 of the Bengal Ferries Act run thus : --"7. The control of all public ferries shall be vested in the magistrate of the district, subject to the direction of the Commissioner.""8. The immediate superintendence of every public ferry shall be vested in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint.Any such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorised tolls leviable thereat.""9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct. The Magistrate of the district or the officer authorised by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfillment, "6. The rule making power is conferred on the District Magistrate by Section 15 and it is sufficient for our present purposes to set out only the earlier part of the section in these terms : --"The Magistrate of the district, with the approval of the Commissioner may from time to time make rules consistent with this Act : -- (a) for the management of all public ferries within such district, and for regulating the traffic at such ferries; (b) for regulating the time and manner at and in which the terms in which and the person by whom, the tolls of such ferries may be leased by auction ; (c) for compensating persons who have compounded for tolls payable for the use of any such ferry when such ferry has been discontinued before the expiration of the period compounded for ; and (d) generally to carry out the purposes of this Act : "Rule 2 says : -"Every Patna - Ganges ferry shall either be held khas by the Magistrate or be leased by public auction ."Rule 7 (d) on which the learned Advocate-General relied provides : --"The maximum period for which a lease may be granted shall not exceed three years at a time."7. The intendment or the scheme of the Act and the rules is either to have khas possession of the ferries in the District Magistrate or to hold a public auction for the grant of a lease. There is no. power express or implied for extension of a term of lease already granted. It is no. doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept another bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure. The maximum term cannot exceed three years and at the end of it there has to be a public auction to ascertain the bids, the reason for insistence on a public auction can be guessed. As is pointed out in The State of Assam v. Keshab Prasad Singh, 1953 S. C R 865 : (A I R 1955 S. C 309) (A) it is probably a statutory safeguard against arbitrary executive action.
### Response:
0
### Explanation:
5. We are in full agreement with the view taken by the High Court. Sections 7, 8, and 9 of the Bengal Ferries Act run thusThe control of all public ferries shall be vested in the magistrate of the district, subject to the direction of the Commissioner.""8. The immediate superintendence of every public ferry shall be vested in the Magistrate of the district in which such ferry is situated, or in such other officer as the State Government may, from time to time, either by name or by official designation, appoint.Any such Magistrate or officer shall, except when the tolls at such ferry are leased, make all necessary arrangements for the supply of boats for such ferry, and for the collection of the authorised tolls leviable thereat.""9. The tolls of any public ferry may, from time to time, be leased by public auction for such term as the Magistrate of the district in which such ferry is situated may, with the approval of the Commissioner, direct. The Magistrate of the district or the officer authorised by him to conduct such auction may, for sufficient reason to be recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. The lessee of the tolls of every ferry which have been leased under this section shall execute a contract setting forth the conditions on which the tolls of such ferry are to be held, and shall give security for its due fulfillment, "6. The rule making power is conferred on the District Magistrate by Section 15 and it is sufficient for our present purposes to set out only the earlier part of the section in these termsMagistrate of the district, with the approval of the Commissioner may from time to time make rules consistent with this Actfor the management of all public ferries within such district, and for regulating the traffic at such ferries; (b) for regulating the time and manner at and in which the terms in which and the person by whom, the tolls of such ferries may be leased by auction ; (c) for compensating persons who have compounded for tolls payable for the use of any such ferry when such ferry has been discontinued before the expiration of the period compounded for ; and (d) generally to carry out the purposes of this Act : "Rule 2 saysPatna - Ganges ferry shall either be held khas by the Magistrate or be leased by public auction ."Rule 7 (d) on which the learned Advocate-General relied providesmaximum period for which a lease may be granted shall not exceed three years at a time."7. The intendment or the scheme of the Act and the rules is either to have khas possession of the ferries in the District Magistrate or to hold a public auction for the grant of a lease. There is no. power express or implied for extension of a term of lease already granted. It is no. doubt true that the Magistrate is empowered to refuse to accept the highest bid and accept another bid or even withdraw the tolls from auction, but this does not mean that the process of holding an auction and ascertaining the bids could be abandoned altogether and that it is open to the District Magistrate to extend the term indefinitely and at his sweet will and pleasure. The maximum term cannot exceed three years and at the end of it there has to be a public auction to ascertain the bids, the reason for insistence on a public auction can be guessed. As is pointed out in The State of Assam v. Keshab Prasad Singh, 1953 S. C R 865 : (A I R 1955 S. C 309) (A) it is probably a statutory safeguard against arbitrary executive action.
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State of Andhra Pradesh & Ors Vs. S. Pitchi Reddy & Ors | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Orders passed by the High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh dated 13.11.2017 in Writ Petition No.37515 of 2017; Writ Petition No.37516 of 2017; Writ Petition No.37504 of 2017 and Writ Petition No.37498 of 2017 by which the High Court has allowed the said writ petitions preferred by the respondents herein – original assessees and has quashed the respective assessment orders passed by the Assessing Officer – Commercial Tax Officer, Brodipet Circle, Guntur, the State of Andhra Pradesh and others have preferred the present appeals. 2. That the respective respondents are the registered dealers holding VAT Registration. The Assessing Officer passed the assessment orders for the respective assessment years and assessed the tax by order dated 25.07.2012. The particulars in a tabular form are as under: Civil Appeal No. Assessment Year Assessed Tax Date of Order Civil Appeal No.7768 of 2021 2010-2011 9,10,608/- 25.07.2012 Civil Appeal No.7771 of 2021 2008-2009 7,07,031/- 25.07.2012 Civil Appeal No.7770 of 2021 2009-2010 10,73,119/- 25.07.2012 Civil Appeal No.7669-2021 2008-2009 10,25,321/- 25.07.2012 3. Feeling aggrieved and dissatisfied with the respective Assessment Orders, the dealers/assesses preferred the appeals before the Appellate Deputy Commissioner (CT), Guntur. The First Appellate Authority remanded the case to the Assessing Officer. Thereafter the Commissioner of Commercial Taxes exercised suo moto revisional powers vide its proceedings dated 27.07.2014 against the order by the First Appellate Authority remanding the matter to the AO. The respective dealers submitted their objections. Pending the revisional proceedings before the Commissioner of Commercial Taxes, the Assessing Officer issued show cause notices for making fresh assessment orders consequent to the remand of the cases by the First Appellate Authority. The respective dealers submitted their objections, inter alia, to the effect that when the suo moto revisions are pending before the Commissioner, the Assessing officer has no jurisdiction to make a fresh assessment in pursuance of the remand order. Thereafter the Assessing Officer passed fresh assessment orders consequent upon the remand of the case by the First Appellate Authority. Instead of preferring an appeal/appeals before the First Appellate Authority against the fresh assessment orders, the dealers straight way filed writ petitions before the High Court and by impugned judgment and orders, the High Court has allowed the said writ petitions and quashed the fresh assessment orders, solely on the ground that pending suo moto revisional proceedings, the Assessing Officer ought not to have proceeded further with the fresh assessment. 4. Feeling aggrieved and dissatisfied with the impugned judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders, the State has preferred the present appeals. As per the Office Report, though served, nobody appears on behalf of the respondent(s). Therefore, the hearing is proceeded ex-parte. 5. Having heard learned counsel appearing for the State and considering the impugned judgment and orders passed by the High Court, we are of the opinion that the impugned judgment and orders passed by the High Court, quashing and setting aside the fresh assessment orders are unsustainable. 5.1 Firstly, the High Court ought not to have directly entertained the writ petitions challenging the fresh assessment orders. The respective dealers – assessees ought to have availed the alternative remedy of appeals before the First Appellate Authority which were availed earlier when the earlier assessment orders were passed. 5.2 Secondly, because the fresh assessment orders were passed consequent upon the remand of the case by the First Appellate Authority pending the revisional proceedings against the order of remand, merely on that ground alone the fresh assessment orders could not have been set aside. 5.3 Nothing has been observed by the High Court on the merits of the fresh assessment orders. If the fresh assessment orders would have gone against the State, in that case the State would have been the aggrieved party and the State could have raised the objection that pending suo moto revisional proceedings against the order of remand, the Assessing Officer ought not to have proceeded further with the fresh assessments. However, in the present case the fresh assessments have gone against the respective dealers. Therefore, as such the respective dealers were required to prefer the appeals before the First Appellate Authority against the fresh assessment orders. 5.4 In view of the above, the judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders in the writ petitions under Article 226 of the Constitution of India are unsustainable. | 1[ds]5. Having heard learned counsel appearing for the State and considering the impugned judgment and orders passed by the High Court, we are of the opinion that the impugned judgment and orders passed by the High Court, quashing and setting aside the fresh assessment orders are unsustainable.5.1 Firstly, the High Court ought not to have directly entertained the writ petitions challenging the fresh assessment orders. The respective dealers – assessees ought to have availed the alternative remedy of appeals before the First Appellate Authority which were availed earlier when the earlier assessment orders were passed.5.2 Secondly, because the fresh assessment orders were passed consequent upon the remand of the case by the First Appellate Authority pending the revisional proceedings against the order of remand, merely on that ground alone the fresh assessment orders could not have been set aside.5.3 Nothing has been observed by the High Court on the merits of the fresh assessment orders. If the fresh assessment orders would have gone against the State, in that case the State would have been the aggrieved party and the State could have raised the objection that pending suo moto revisional proceedings against the order of remand, the Assessing Officer ought not to have proceeded further with the fresh assessments. However, in the present case the fresh assessments have gone against the respective dealers. Therefore, as such the respective dealers were required to prefer the appeals before the First Appellate Authority against the fresh assessment orders.5.4 In view of the above, the judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders in the writ petitions under Article 226 of the Constitution of India are unsustainable. | 1 | 823 | 301 | ### 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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M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Orders passed by the High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh dated 13.11.2017 in Writ Petition No.37515 of 2017; Writ Petition No.37516 of 2017; Writ Petition No.37504 of 2017 and Writ Petition No.37498 of 2017 by which the High Court has allowed the said writ petitions preferred by the respondents herein – original assessees and has quashed the respective assessment orders passed by the Assessing Officer – Commercial Tax Officer, Brodipet Circle, Guntur, the State of Andhra Pradesh and others have preferred the present appeals. 2. That the respective respondents are the registered dealers holding VAT Registration. The Assessing Officer passed the assessment orders for the respective assessment years and assessed the tax by order dated 25.07.2012. The particulars in a tabular form are as under: Civil Appeal No. Assessment Year Assessed Tax Date of Order Civil Appeal No.7768 of 2021 2010-2011 9,10,608/- 25.07.2012 Civil Appeal No.7771 of 2021 2008-2009 7,07,031/- 25.07.2012 Civil Appeal No.7770 of 2021 2009-2010 10,73,119/- 25.07.2012 Civil Appeal No.7669-2021 2008-2009 10,25,321/- 25.07.2012 3. Feeling aggrieved and dissatisfied with the respective Assessment Orders, the dealers/assesses preferred the appeals before the Appellate Deputy Commissioner (CT), Guntur. The First Appellate Authority remanded the case to the Assessing Officer. Thereafter the Commissioner of Commercial Taxes exercised suo moto revisional powers vide its proceedings dated 27.07.2014 against the order by the First Appellate Authority remanding the matter to the AO. The respective dealers submitted their objections. Pending the revisional proceedings before the Commissioner of Commercial Taxes, the Assessing Officer issued show cause notices for making fresh assessment orders consequent to the remand of the cases by the First Appellate Authority. The respective dealers submitted their objections, inter alia, to the effect that when the suo moto revisions are pending before the Commissioner, the Assessing officer has no jurisdiction to make a fresh assessment in pursuance of the remand order. Thereafter the Assessing Officer passed fresh assessment orders consequent upon the remand of the case by the First Appellate Authority. Instead of preferring an appeal/appeals before the First Appellate Authority against the fresh assessment orders, the dealers straight way filed writ petitions before the High Court and by impugned judgment and orders, the High Court has allowed the said writ petitions and quashed the fresh assessment orders, solely on the ground that pending suo moto revisional proceedings, the Assessing Officer ought not to have proceeded further with the fresh assessment. 4. Feeling aggrieved and dissatisfied with the impugned judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders, the State has preferred the present appeals. As per the Office Report, though served, nobody appears on behalf of the respondent(s). Therefore, the hearing is proceeded ex-parte. 5. Having heard learned counsel appearing for the State and considering the impugned judgment and orders passed by the High Court, we are of the opinion that the impugned judgment and orders passed by the High Court, quashing and setting aside the fresh assessment orders are unsustainable. 5.1 Firstly, the High Court ought not to have directly entertained the writ petitions challenging the fresh assessment orders. The respective dealers – assessees ought to have availed the alternative remedy of appeals before the First Appellate Authority which were availed earlier when the earlier assessment orders were passed. 5.2 Secondly, because the fresh assessment orders were passed consequent upon the remand of the case by the First Appellate Authority pending the revisional proceedings against the order of remand, merely on that ground alone the fresh assessment orders could not have been set aside. 5.3 Nothing has been observed by the High Court on the merits of the fresh assessment orders. If the fresh assessment orders would have gone against the State, in that case the State would have been the aggrieved party and the State could have raised the objection that pending suo moto revisional proceedings against the order of remand, the Assessing Officer ought not to have proceeded further with the fresh assessments. However, in the present case the fresh assessments have gone against the respective dealers. Therefore, as such the respective dealers were required to prefer the appeals before the First Appellate Authority against the fresh assessment orders. 5.4 In view of the above, the judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders in the writ petitions under Article 226 of the Constitution of India are unsustainable.
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5. Having heard learned counsel appearing for the State and considering the impugned judgment and orders passed by the High Court, we are of the opinion that the impugned judgment and orders passed by the High Court, quashing and setting aside the fresh assessment orders are unsustainable.5.1 Firstly, the High Court ought not to have directly entertained the writ petitions challenging the fresh assessment orders. The respective dealers – assessees ought to have availed the alternative remedy of appeals before the First Appellate Authority which were availed earlier when the earlier assessment orders were passed.5.2 Secondly, because the fresh assessment orders were passed consequent upon the remand of the case by the First Appellate Authority pending the revisional proceedings against the order of remand, merely on that ground alone the fresh assessment orders could not have been set aside.5.3 Nothing has been observed by the High Court on the merits of the fresh assessment orders. If the fresh assessment orders would have gone against the State, in that case the State would have been the aggrieved party and the State could have raised the objection that pending suo moto revisional proceedings against the order of remand, the Assessing Officer ought not to have proceeded further with the fresh assessments. However, in the present case the fresh assessments have gone against the respective dealers. Therefore, as such the respective dealers were required to prefer the appeals before the First Appellate Authority against the fresh assessment orders.5.4 In view of the above, the judgment and orders passed by the High Court quashing and setting aside the fresh assessment orders in the writ petitions under Article 226 of the Constitution of India are unsustainable.
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SADANAND PUTHRAN Vs. UNITED INDIA INSURANCE CO. LTD | dated 4.4.2013 seeking pension on the basis of the 1995 Scheme, resting his case on the aforesaid judgment. There was no response to this representation, resulting in the appellant filing a writ petition before the Bombay High Court. The Division Bench of the Bombay High Court, in terms of the impugned judgment dated 07.04.2016 rejected the same. The reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporation (Employees’) Pension Fund while refunding the amount of Provident Fund contributed by the insurance company. These two aspects were stated to be absent in the case of the appellant, who had never opted for voluntary retirement within the requisite period nor refunded the amount, which were pre-requisites for availing the benefit of the new pension scheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance. The said clause reads as under: “(4A) Not-withstanding anything contained in the foregoing sub- paragraphs, an Officer or a person of the Development staff may be permitted, subject to vigilance clearance, to seek voluntary retirement, - (a) on completion of 55 years of age or at any time thereafter on giving ninety days notice in writing to the appointing authority of his intention to retire; or Provided that on a written request from an officer or a person of the Development Staff, such notice may be waived in full or in part by the appointing authority; or (b) in accordance with the provisions contained in paragraph 30 of the General Insurance (Employees’) Pension Scheme, 1995, made under section 17A of the General Insurance Business (Nationalisation) Act, 1972, (57 of 1972) and published under notification of the Government of India, in the Ministry of Finance (Department of Economic Affairs) Insurance Division number S.O. 585 (E) dated 28th June, 1995.” 30. The last relevant aspect is that the 1995 Scheme provided in clause 22 as under: “22. Forfeiture of service - Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.” 31. Thus, once again, there is this clause of forfeiture of service in case of resignation. 32. In order to elucidate the legal principle further, we may note that Sheel Kumar Jain took note of the judgment of the three Judges’ Bench in Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. & Ors. (1984) 3 SCC 369 An uncovenanted employee of respondent-Company, paid on a monthly basis, sought to recover a sum as gratuity, for continued service rendered over 29 years, under the Retiring Gratuity Rules, 1937, after having resigned from service. The employee was paid the provident fund dues. The High Court of Patna opined against the employee. When the matter reached this Court, one of the contentions raised by the respondent- Company was that the employee had resigned and not retired from service. It was noticed that Rule 1(g) defines ‘retirement’ as “the termination of service by reason of any cause other than removal by discharge due to misconduct.” The employee had not been removed by discharge due to misconduct. The termination of service, being on account of resignation, it was held to qualify within the definition of ‘retirement’ under the Rules. The rest of the judgment, dealing with the principles as to how gratuity should be treated, is not relevant. 33. We, thus, notice that all that was opined by the three Judges’ Bench in the aforesaid case was based on the definition of ‘retirement’ as per the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation as “premature retirement” is of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment. | 0[ds]12. A reading of the aforesaid clause shows that there is a specific exclusion of an employee in whose case the twin conditions of havingbefore the commencement of the Pension Rules and drawing of pension under the Staff Regulations is satisfied.Thus, the definition ofenvisages two eventualities – first a person who had retired in terms of the Staff Regulations; and secondly, a voluntary retirement under the provisions of the Pension Rules themselves.The aforesaid Rules, thus, show that resignation entails forfeiture of the entire past service and consequently would not qualify for pensionary benefits. Rule 31 deals with ‘Pension on voluntarywhich is admissible on completion of 20 years of qualifying service, with a notice of not less than 90 days inthe Pension Rules been only prospective in application, there is no doubt that Shree Lal Meena could not even have endeavoured to prefer a claim. In order to appreciate this aspect, the extent to which retrospectivity applies would have to be analysed, strictly on the basis of these Pension Rules, which are also contributory in their character.17. The undisputed fact is that as on the date when Shree Lal Meena was revolving the thought in his mind of voluntary retirement, there was no such provision in the Staff Regulations applicable. Thus, his repeated communications setting forth a thought process for ‘voluntaryhad no legal backing on that date. It is in these circumstances that no response was forthcoming to his letters, when he talked about a concept which did not exist. Conscious of this aspect and wanting to leave the services of the LIC, Shree Lal Meena took recourse to what was permissible on that date, i.e.,Section 3 of the Staff Regulations has a headingThe other expression used before the relevant Regulation 18 is ‘Determination ofThe Regulation itself uses the expression ‘leave orservice. In whatever manner these expressions are understood, in legal and common parlance, they amount to, first a unilateral act on the part of an employee, desirous of not continuing with her/his service with the employer and then, the acceptance of the same by the employer, subject to a notice period, which, in the present facts, had been waived at the request of the employee. Thus, on the relevant date he took a conscious decision to dis- engage himself from the services of the appellant, on the terms & conditions as prevalent on that date. As to what happened five years hence, in our view, would have no bearing on any benefit, which can accrue to such employee as a respondent, except to the extent which is specifically made applicable to him.What is most material is that the employee in this case had resigned. When the Pension Rules are applicable, and an employee resigns, the consequences are forfeiture of service, under Rule 23 of the Pension Rules. In our view, attempting to apply the Pension Rules to the respondent would be a self-defeating argument. As, suppose, the Pension Rules were applicable and the employee like the respondent was in service and sought to resign, the entire past service would be forfeited, and consequently, he would not qualify for pensionary benefits. To hold otherwise would imply that an employee resigning during the currency of the Rules would be deprived of pensionary benefits, while an employee who resigns when these Rules were not even in existence, would be given the benefit of these Rules.20. Now turning to the discussion of the judicial pronouncements in this behalf, we are of the view that any judgment has to be read for the law it lays down, by reference given to a factual matrix. Lines or sentences here and there should not be read in absolute terms, de hors the factual matrix in the context of which those observations were made.CIT v. Sun Engineering Works (P.) Ltd. (1992) 4 SCC 363. 21. The judgment in JK Cotton Spinning & Weaving Mills Co. Ltd., Kanpur has, thus, to be considered in that context. What was the issue in that case? The first paragraph of the judgment itself clarifies that aspect. Whether determination of an employer-employee relationship amounted to retrenchment, within the meaning of the provisions of the Act applicable is what was being looked into. We have already noticed, while referring to the facts of that case hereinbefore, that the employee in question tried to act clever by half. He firstly resigned. The resignation was accepted and the consequent monetary benefit flowed to him. Thereafter, he sought to bring his resignation within the meaning ofunder Section 2(s) read with Section 6N of the Uttar Pradesh Industrial Disputes Act, 1947. The definition ofitself clearly excluded voluntary retirement of the workman. The employee, having voluntarily resigned, the termination of relationship of employer and employee could not come within the meaning ofThis Court analysed the difference between the meaning of resignation and retrenchment. The resignation was voluntary. It is in this context that it was observed that a voluntary tendering of resignation would be similar to voluntary retirement and not retrenchment. Nothingmore and nothing less. Thus, in our view, the High Court, both the learned Single Judge and the Division Bench, appeared to have read much more into this judgment than the legal proposition which it sought to propound. The principles in the context of the controversy before us are well enunciated in the judgment of this Court in Reserve Bank of India & Anr. v. Cecil Dennis Solomon & Anr.On a similar factual matrix, the employees had resigned some time in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination.In our view, the aforesaid principles squarely apply in the facts of the present case and the relevant legal principles is that voluntary retirement is a concept read into a condition of service, which has to be created by a statutory provision, while resignation is the unilateral determination of an employer-employee relationship, whereby an employee cannot be a bonded labour.We may only note that in the above discussed judgement, an argument assailing the Regulation for forfeiture of service, based on Article 14 of the Constitution of India was repelled. The provisions under the new Regulations were held not to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service and, thus, being disentitled from having become a member of the fund. There are other judgments also in the same line, but not laying down any additional principles and, thus, it would suffice to just mention them, i.e. M.R. Prabhakar & Ors. v. Canara Bank & Ors. (2012) 9 SCC 671 and J.M. Singh v. Life Insurance Corporation of India & Ors. (2012) 9 SCC 671 25. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations.Shashikalav. Central Bank of India, (2014) 16 SCC 260 ; Asger Ibrahim Amin v. Life Insurance Corporation of India (2016) 13 SCC 797We 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 inThe reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporationscheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance.Thus, once again, there is this clause of forfeiture of service in case of resignation.We, thus, notice that all that was opined by the threeBench in the aforesaid case was based on the definition ofper the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation asis of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the41. A Division Bench of the Andhra Pradesh High Court, in terms of the impugned order dated 09.10.2015 rejected the petition filed by the appellants on the ground that when the appellants resigned, there was no Pension Regulations providing for voluntary retirement in existence, and merely because the Pension Regulations have been made applicable for persons retiring within a past period of window, it would not give the same benefit to the employees who had resigned from service. The reasoning of the judgment is predicated on M.R. Prabhakar & Ors. v. Canara Bank & Ors.It is relevant to note that M.R. Prabhakar & Ors. dealt with a similar scheme for employees of the Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once again, the principle was of differentiation between the concept of ‘voluntaryRegulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in ‘voluntaryin the definition ofbut had not considered it appropriate to bring in the concept ofService jurisprudence, recognising the concept ofas different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations. | 0 | 7,017 | 2,142 | ### 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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dated 4.4.2013 seeking pension on the basis of the 1995 Scheme, resting his case on the aforesaid judgment. There was no response to this representation, resulting in the appellant filing a writ petition before the Bombay High Court. The Division Bench of the Bombay High Court, in terms of the impugned judgment dated 07.04.2016 rejected the same. The reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporation (Employees’) Pension Fund while refunding the amount of Provident Fund contributed by the insurance company. These two aspects were stated to be absent in the case of the appellant, who had never opted for voluntary retirement within the requisite period nor refunded the amount, which were pre-requisites for availing the benefit of the new pension scheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance. The said clause reads as under: “(4A) Not-withstanding anything contained in the foregoing sub- paragraphs, an Officer or a person of the Development staff may be permitted, subject to vigilance clearance, to seek voluntary retirement, - (a) on completion of 55 years of age or at any time thereafter on giving ninety days notice in writing to the appointing authority of his intention to retire; or Provided that on a written request from an officer or a person of the Development Staff, such notice may be waived in full or in part by the appointing authority; or (b) in accordance with the provisions contained in paragraph 30 of the General Insurance (Employees’) Pension Scheme, 1995, made under section 17A of the General Insurance Business (Nationalisation) Act, 1972, (57 of 1972) and published under notification of the Government of India, in the Ministry of Finance (Department of Economic Affairs) Insurance Division number S.O. 585 (E) dated 28th June, 1995.” 30. The last relevant aspect is that the 1995 Scheme provided in clause 22 as under: “22. Forfeiture of service - Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.” 31. Thus, once again, there is this clause of forfeiture of service in case of resignation. 32. In order to elucidate the legal principle further, we may note that Sheel Kumar Jain took note of the judgment of the three Judges’ Bench in Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. & Ors. (1984) 3 SCC 369 An uncovenanted employee of respondent-Company, paid on a monthly basis, sought to recover a sum as gratuity, for continued service rendered over 29 years, under the Retiring Gratuity Rules, 1937, after having resigned from service. The employee was paid the provident fund dues. The High Court of Patna opined against the employee. When the matter reached this Court, one of the contentions raised by the respondent- Company was that the employee had resigned and not retired from service. It was noticed that Rule 1(g) defines ‘retirement’ as “the termination of service by reason of any cause other than removal by discharge due to misconduct.” The employee had not been removed by discharge due to misconduct. The termination of service, being on account of resignation, it was held to qualify within the definition of ‘retirement’ under the Rules. The rest of the judgment, dealing with the principles as to how gratuity should be treated, is not relevant. 33. We, thus, notice that all that was opined by the three Judges’ Bench in the aforesaid case was based on the definition of ‘retirement’ as per the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation as “premature retirement” is of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment.
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had resigned some time in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination.In our view, the aforesaid principles squarely apply in the facts of the present case and the relevant legal principles is that voluntary retirement is a concept read into a condition of service, which has to be created by a statutory provision, while resignation is the unilateral determination of an employer-employee relationship, whereby an employee cannot be a bonded labour.We may only note that in the above discussed judgement, an argument assailing the Regulation for forfeiture of service, based on Article 14 of the Constitution of India was repelled. The provisions under the new Regulations were held not to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service and, thus, being disentitled from having become a member of the fund. There are other judgments also in the same line, but not laying down any additional principles and, thus, it would suffice to just mention them, i.e. M.R. Prabhakar & Ors. v. Canara Bank & Ors. (2012) 9 SCC 671 and J.M. Singh v. Life Insurance Corporation of India & Ors. (2012) 9 SCC 671 25. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations.Shashikalav. Central Bank of India, (2014) 16 SCC 260 ; Asger Ibrahim Amin v. Life Insurance Corporation of India (2016) 13 SCC 797We 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 inThe reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporationscheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance.Thus, once again, there is this clause of forfeiture of service in case of resignation.We, thus, notice that all that was opined by the threeBench in the aforesaid case was based on the definition ofper the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation asis of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the41. A Division Bench of the Andhra Pradesh High Court, in terms of the impugned order dated 09.10.2015 rejected the petition filed by the appellants on the ground that when the appellants resigned, there was no Pension Regulations providing for voluntary retirement in existence, and merely because the Pension Regulations have been made applicable for persons retiring within a past period of window, it would not give the same benefit to the employees who had resigned from service. The reasoning of the judgment is predicated on M.R. Prabhakar & Ors. v. Canara Bank & Ors.It is relevant to note that M.R. Prabhakar & Ors. dealt with a similar scheme for employees of the Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once again, the principle was of differentiation between the concept of ‘voluntaryRegulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in ‘voluntaryin the definition ofbut had not considered it appropriate to bring in the concept ofService jurisprudence, recognising the concept ofas different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations.
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Naib Subedar Lachhman Dass Vs. Union of India | CHANDRACHUD, J. 1. The appellant was dismissed from service by an order of the Court Martial dated May 17, 1966. He filed an appeal from that order to the Chief of Army Staff, who by his order dated December 21, 1966 set aside the order of dismissal and substituted in its place an order of discharge with retrospective effect from July 11, 1966. Four years thereafter, the appellant filed a writ petition in the Delhi High Court on September 22, 1970 which was dismissed in limine by the High Court on November 25, 1970. This appeal by special leave is directed against that order. 2. The writ petition filed by the appellant in the High Court shows that various ill-conceived remedies were adopted by him after the Chief of Army Staff passed the order dated December 21, 1966. In December, 1968, which itself was two years later, the appellant filed a writ petition in this Court under Article 32 of the Constitution which he withdrew on March 19, 1969. In May, 1969 he filed another writ petition under Article 32 which was dismissed by this Court on September 1, 1969. He then filed a review petition on August 3, 1969 which was dismissed by this Court on December 19, 1969. In February, 1970 he again moved this Court under Article 32 but, for a change, he alleged on this occasion that Order XV of the Supreme Court Rules was ultra vires. That petition was dismissed on August 3, 1970 and one month thereafter he filed the present writ petition in the High Court. 3. It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares one in the face is that it was for the first time in September, 1970 that the appellant invoked the extraordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated December 21, 1966. The writ petition was filed after a gross delay for which there is no satisfactory explanation and, therefore, the High Court was justified in dismissing it summarily. | 0[ds]2. The writ petition filed by the appellant in the High Court shows that variousd remedies were adopted by him after the Chief of Army Staff passed the order dated December 21, 1966. In December, 1968, which itself was two years later, the appellant filed a writ petition in this Court under Article 32 of the Constitution which he withdrew on March 19, 1969. In May, 1969 he filed another writ petition under Article 32 which was dismissed by this Court on September 1, 1969. He then filed a review petition on August 3, 1969 which was dismissed by this Court on December 19, 1969. In February, 1970 he again moved this Court under Article 32 but, for a change, he alleged on this occasion that Order XV of the Supreme Court Rules was ultra vires. That petition was dismissed on August 3, 1970 and one month thereafter he filed the present writ petition in the High Court3. It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares one in the face is that it was for the first time in September, 1970 that the appellant invoked the extraordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated December 21, 1966. The writ petition was filed after a gross delay for which there is no satisfactory explanation and, therefore, the High Court was justified in dismissing it summarily. | 0 | 398 | 281 | ### Instruction:
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CHANDRACHUD, J. 1. The appellant was dismissed from service by an order of the Court Martial dated May 17, 1966. He filed an appeal from that order to the Chief of Army Staff, who by his order dated December 21, 1966 set aside the order of dismissal and substituted in its place an order of discharge with retrospective effect from July 11, 1966. Four years thereafter, the appellant filed a writ petition in the Delhi High Court on September 22, 1970 which was dismissed in limine by the High Court on November 25, 1970. This appeal by special leave is directed against that order. 2. The writ petition filed by the appellant in the High Court shows that various ill-conceived remedies were adopted by him after the Chief of Army Staff passed the order dated December 21, 1966. In December, 1968, which itself was two years later, the appellant filed a writ petition in this Court under Article 32 of the Constitution which he withdrew on March 19, 1969. In May, 1969 he filed another writ petition under Article 32 which was dismissed by this Court on September 1, 1969. He then filed a review petition on August 3, 1969 which was dismissed by this Court on December 19, 1969. In February, 1970 he again moved this Court under Article 32 but, for a change, he alleged on this occasion that Order XV of the Supreme Court Rules was ultra vires. That petition was dismissed on August 3, 1970 and one month thereafter he filed the present writ petition in the High Court. 3. It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares one in the face is that it was for the first time in September, 1970 that the appellant invoked the extraordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated December 21, 1966. The writ petition was filed after a gross delay for which there is no satisfactory explanation and, therefore, the High Court was justified in dismissing it summarily.
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2. The writ petition filed by the appellant in the High Court shows that variousd remedies were adopted by him after the Chief of Army Staff passed the order dated December 21, 1966. In December, 1968, which itself was two years later, the appellant filed a writ petition in this Court under Article 32 of the Constitution which he withdrew on March 19, 1969. In May, 1969 he filed another writ petition under Article 32 which was dismissed by this Court on September 1, 1969. He then filed a review petition on August 3, 1969 which was dismissed by this Court on December 19, 1969. In February, 1970 he again moved this Court under Article 32 but, for a change, he alleged on this occasion that Order XV of the Supreme Court Rules was ultra vires. That petition was dismissed on August 3, 1970 and one month thereafter he filed the present writ petition in the High Court3. It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares one in the face is that it was for the first time in September, 1970 that the appellant invoked the extraordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated December 21, 1966. The writ petition was filed after a gross delay for which there is no satisfactory explanation and, therefore, the High Court was justified in dismissing it summarily.
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N.D. Jayal & Another Vs. Union of India & Others | be provided for common property resources and forest lands that may be acquired from their dependants. 8. The DPs/PAPs are defined in a way as to include not only land owners but also those who depend on it without owning it, and those who have common property resources as their sustenance. 134. This Court in the case of Karjan Jalasay Yojana Assargrasth Sahkar Ane Snagharsh Samiti v. State of Gujarat (AIR 1987 SC 532 ) has held thus: "Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be provided either alternative land of equal qualify but not exceeding three acres in area and it that is not possible, then alternative employment where he would be assured a minimum wane. .......... No possession of any part of the acquired land shell be taken from any person unless and until he is either provided with alternative land or alternative employment which is not temporary in character so that he and the members of his family do not remain without means of subsistence ..... if for any reason the State Government is not able to provide alternative land or arrange for alternative employment, the State Government will subject to the same exception, pay to the head of the family at the latter" place of residence compensation equivalent to minimum wage every fortnight during the period alternative land or employment is not provided." 135. The above directions of this Court in the case of Karjan Jalasay (supra) were based on the factual realities that for most marginal farmers and tribals monetary compensation for acquisition of land can never be sustainable source of dignified living. A new place of alternative land of equal quality should be given to those dispossessed from land due to acquisition for public purpose. In the last affidavit submitted by Ministry of Environment and Forests before us to show the status of the progress of rehabilitation as on 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,943 families and 250 families affected by Koteshwar Darn have also not received cash compensation. 136. For providing agricultural land to farmers who have been ousted it is stated that land is being acquired down the valley in the vicinity of Dehradun city. The Government has thus been involved in exercise of rehabilitating the dam oustees on acquired land from other land holders who in turn will have to be ousted. This win give rise to chain reaction of making other people landless. The process has not yet been completed and according to the affidavit of the Ministry itself the work of resettlement and rehabilitation is underway. 137. When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as a natural adverse consequence, Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down-stream who need water and electricity for their homes, Industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble, Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood. 138. Mistakes in resettlement and rehabilitation of people ousted by other similar Projects committed in the past have to be avoided. The construction of dam cannot be allowed to proceed and be completed leaving the oustees high and dry. 139. The oustees of Tehri Dam Project who are used to valley life in Himalayas are proposed to be resettled and rehabilitated in newly built Tehri Town and those depending on forest and agriculture are proposed to be given cash compensation or land down-stream near Dehradun city. The Ministry of Environment and Forests (MoEF) in their last affidavit has given a status report to show that resettlement work is in progress but not completed. In the affidavit it is promised as under:- "The Project authority shall ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the Reservoir; evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment area and treatment of direct draining areas etc. shall be completed. The Project Authority shall obtain clearance from MoEF before closing the outlet at EL 700 m." 140. The RIO declaration of environment and development in the United Nations Conference held in June 1992 to which India was a party and signatory and on which the Environment Protection Act, its Rules and Policies are modeled, obligates the Authorities of India by the norms fixed in International end Domestic Law that "the environmental and natural resources of people under operation, domination and occupation shall be protected," A mention has already been made above of the latest rehabilitation policy framed by the Government of India and relevant part has been quoted. These legal and policy obligations are enforceable against the State. | 1[ds]16. From the documents before us, it could be gathered that the Government also referred the matter to Seismic Expert, Prof. Jai Krishna who was the former President of International Academy of Earthquake Engineering and alsoof the University of Roorkee. He examined the matter and opined that "the proposed dam section for the Tehri Project is safe from the point of view of seismicity of the region" and "since conservatism has entered at almost every step of decision making, the overall factor of safety of the dam is high enough to eliminate any risk from earthquake of the future." The next Expert Group that consisted of the Director General, Geological Survey of India, made a report on 25.7.1991 and recommended that the reports of the High Level Committee and the review given by Prof. Jai Krishna should be accepted. The seismic stability of the dam was further got tested through the Hydro Project Institute, Moscow, against actual accelerogram of the Gazli earthquake for the maximum vertical acceleration of 1.36g and horizontal acceleration of 0.72g both acting simultaneously and the dam design was again found to be safe. Even though the design of the dam had been earlier independently checked by two separate agencies, it was again examined and it was found that the project appears to be safe. Subsequently, during the pendency of this petition, in order to allay fears expressed in certain quarters, the Government of India in June 1996 appointed a Group of Five Experts to examine the relevant scientific and technical reports and other information relating to safety of the Tehri Dam and make its recommendations to the Government for consideration. In the selection of the experts Shri Sundarlal Bahuguna, who has been spearheading the movement against the construction of the Tehri Dam, was also associated and he recommended the inclusion of two engineers apart from the three seismologist. Thus the names of all the five Experts were suggested by Shri Bahuguna. The Group of Five Experts, after a detailed discussion on the various issues related to the seismic safety of the Tehri Dam, concluded that a comprehensive appraisal of the seismic safety of the dam required completion of the two key exercises by employing recent advances in conceptual and computational capabilities and they are, (i) quantitative estimation of seismic hazard at all the Tehri Dam site, and (ii) evaluation of the performance of the Tehri Dam as currently designed, if it was exposed to the estimated seismic hazard at the site. Accordingly, the Group or Experts got conducted the necessary exercises at their own decided parameters and methods. The Group also considered the International Commission on Large Dams Guidelines on Earthquake Analysis Procedure for Dams and Seismicity and Dam Design. Based on these materials the Group of Experts finally submitted the report on 18.2.1998. They concluded that the "present design of the Dam is expected to be structurally safe to withstand the maximum credible earthquake during the economic performance life of thesystem." The Group of Experts was unanimous in their recommendation as stated above. However, as a matter of abundant caution , four Experts suggested (i)3D Non Linearanalysis of the Dam to evaluate its performance against the maximum credible earthquake and (ii) a simulatedanalysis to ensure that in the unlikely event of an uncontrolled release of water, the consequences are minimum, be conducted. There was difference of opinion between the four Experts and the Fifth Expert only on the need to undertake these two additional studies as a matter of abundant caution. The Government of India, after receipt of the report of the Group of Experts, examined the further recommendation of the four out of five Experts in consultation with the Central Water Commission, which is a technical body of the Government and nodal agency in the country for planning and design of River Valley Projects who in turn referred the report of the Expert Group together with the need for carrying out the work recommended by way of abundant caution to the National Committee on Seismic Design Parameters which is a standing technical committee and it furnished its views. In addition, plethora of material has been placed by way of various text books and studies carried out by other agencies. We think that it is neither feasible nor proper for us to delve into these details. The Government of India, after considering the views thereof, finally decided that there was no necessity to undertake the work recommended further by the Four Experts by way of abundant caution and clearance to the project was given.In the present case the Government, even after the decision of this Court which did not interfere with the decision of the Government on safety aspects In Tehri Bandh Virodhi Sangarsh Samitis case (supra) again seriously examined safety aspects as a matter of precaution. The Office Memorandum dated 1/2/1999 of the Ministry of Power, Government of India, before us testifies this position. Green signal for further works was given by the Government after satisfying itself with the safety of the dam. A mere revisit to the earlier decision cannot be counted as a sign of doubt regarding the dam safety. If the Government so desires they could have abandoned the Project. The necessity or effectiveness of conducting3D Non LinearTest or Dam Break Analysis were taken into account by the Government and if the Government decided not to conduct such tests upon the opinion of the concerned expert bodies, then the Court cannot advice the Government to go for such tests unless malafides, arbitrariness or irrationality is attributed to that decision. The decision of the Government is not based on any financial constraints or uncertainty as to technical opinion. It was clearly of the view that the last Committee was unanimous that the Tehri Dam to be constructed is safe but the advice based on abundant caution was not accepted. As a result, we need not reexamine the safety aspects of the dam.In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right, May be in different context, the right to development is also declared as a component of Art.21 in cases like Samata v. State of Andhra Pradesh, 1997 (8) SCC 191 , and in Madhu Kishore v. State of Bihar, 1996 (5) SCC 125. 24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental human rights. The development is not related only to the growth of GNP, in the classic workDevelopment As Freedom the Nobel prize winner Amartya Sen pointed out that the issue of development cannot be separated from the conceptual framework of human right. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.25. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated an integral part of life under Art.21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, 1995 (6) SCC 363 ), public trust doctrine (M.C. Mehta v. Kamal Nath , 1997 (1) SCC 388 ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.It is no doubt true that in regard to certain aspects such as Catchment Area Treatment, conditions imposed are not fully implemented and it is not very clear from various affidavits filed whether in regard flora and fauna also the, conditions have been fulfilled or not. Whenconditions have been imposed, it is necessary that the conditions are fulfilled along with the construction of the engineering works. In refuting the contention of the petitioners that impoundment in the reservoir has been done before theimplementation of environment and forest conditional clearances, it is stated as follows:"Diversion tunnels on the right bank, T3/T4 have been closed in December 2001 for taking up construction of stilling basin and shaft spillway. The reduced levels of T3 and T4 tunnels are 606 M and 609 M respectively. Diversion tunnels on the left bank, T1/T2 have been kept open for discharging the water downstream. The reduced level of both T1 and T2 is the same viz., 632 M. The current quantity of discharge remains unabated from the discharge prior to the start of project construction. There is no alteration/reduction in quantity of water discharged from the river prior to taking up the project and as of now.The maximum discharge in the river observed during floods in the year 1978, that is 3669 cusecs.Impoundment in the reservoir is generally done for the purpose of deriving benefits from the storage by creating facility for irrigation, drinking water supply, power generation etc. As a matter of fact, none of the benefits are presently accruing from the project at the current stage. Diversion tunnels T3/T4 have been closed for taking up construction of stilling basin before they are permanently closed."78.It is submitted on behalf of the respondents that the initial impoundment in the reservoir will start with the closure of diversion tunnels T1/T2 and water level rising to EL 700 M. The maximum draw down level is EL 740 M, The reservoir spread at EL 700 M will be 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq. km. The present water spread of reservoir at EL 632 M is 1.2 sq. km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works related to Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disaster management plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion of project meant rise in water level in the reservoir and simultaneously increase in the water spread.It is made clear that the condition ofimplementation of conditions prior to the commissioning of the project shall be closely monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of diversion tunnels T1/T2 for Impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed In all respects. In addition, the catchment area treatment of direct draining areas shall be completed and the project authority will obtain clearance from MoEF before closing the outlet at EL 700 M. An additional affidavit has also been filed on behalf of the Union of India to the effect that a high level inter ministerial review committee Would be constituted consisting of Secretaries of all the concerned Ministries of the Central Government to examine various aspects and closely monitoring of the same. It is only after the completion of these conditions, impoundment would start. This categorical statement made by the respondents should assure the petitioners that no impoundment would be allowed until all the conditions in the Environmental Clearance Certificate of the Tehri Dam dated July 19, 1990 are complied with and stand fulfilled.80. The petitioners have disputed that the respondents have complied with the conditions of clearance. But a careful analysis of their pleadings will indicate the dispute is to the extent of compliance only and not that there is no compliance at all. On behalf of the Union of India, a status report supported by an affidavit is filed which indicates that there is substantial compliance with all the conditions. We have in detail discussed the various facts set out in the said affidavit and status in the earlier portion of this order.81. In this background, we find that the petitioners have not established or is there any material to conclude that the Project work is being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, they were taken care of by monitoring agencies. | 1 | 24,707 | 2,299 | ### Instruction:
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be provided for common property resources and forest lands that may be acquired from their dependants. 8. The DPs/PAPs are defined in a way as to include not only land owners but also those who depend on it without owning it, and those who have common property resources as their sustenance. 134. This Court in the case of Karjan Jalasay Yojana Assargrasth Sahkar Ane Snagharsh Samiti v. State of Gujarat (AIR 1987 SC 532 ) has held thus: "Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be provided either alternative land of equal qualify but not exceeding three acres in area and it that is not possible, then alternative employment where he would be assured a minimum wane. .......... No possession of any part of the acquired land shell be taken from any person unless and until he is either provided with alternative land or alternative employment which is not temporary in character so that he and the members of his family do not remain without means of subsistence ..... if for any reason the State Government is not able to provide alternative land or arrange for alternative employment, the State Government will subject to the same exception, pay to the head of the family at the latter" place of residence compensation equivalent to minimum wage every fortnight during the period alternative land or employment is not provided." 135. The above directions of this Court in the case of Karjan Jalasay (supra) were based on the factual realities that for most marginal farmers and tribals monetary compensation for acquisition of land can never be sustainable source of dignified living. A new place of alternative land of equal quality should be given to those dispossessed from land due to acquisition for public purpose. In the last affidavit submitted by Ministry of Environment and Forests before us to show the status of the progress of rehabilitation as on 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,943 families and 250 families affected by Koteshwar Darn have also not received cash compensation. 136. For providing agricultural land to farmers who have been ousted it is stated that land is being acquired down the valley in the vicinity of Dehradun city. The Government has thus been involved in exercise of rehabilitating the dam oustees on acquired land from other land holders who in turn will have to be ousted. This win give rise to chain reaction of making other people landless. The process has not yet been completed and according to the affidavit of the Ministry itself the work of resettlement and rehabilitation is underway. 137. When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as a natural adverse consequence, Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down-stream who need water and electricity for their homes, Industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble, Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood. 138. Mistakes in resettlement and rehabilitation of people ousted by other similar Projects committed in the past have to be avoided. The construction of dam cannot be allowed to proceed and be completed leaving the oustees high and dry. 139. The oustees of Tehri Dam Project who are used to valley life in Himalayas are proposed to be resettled and rehabilitated in newly built Tehri Town and those depending on forest and agriculture are proposed to be given cash compensation or land down-stream near Dehradun city. The Ministry of Environment and Forests (MoEF) in their last affidavit has given a status report to show that resettlement work is in progress but not completed. In the affidavit it is promised as under:- "The Project authority shall ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the Reservoir; evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment area and treatment of direct draining areas etc. shall be completed. The Project Authority shall obtain clearance from MoEF before closing the outlet at EL 700 m." 140. The RIO declaration of environment and development in the United Nations Conference held in June 1992 to which India was a party and signatory and on which the Environment Protection Act, its Rules and Policies are modeled, obligates the Authorities of India by the norms fixed in International end Domestic Law that "the environmental and natural resources of people under operation, domination and occupation shall be protected," A mention has already been made above of the latest rehabilitation policy framed by the Government of India and relevant part has been quoted. These legal and policy obligations are enforceable against the State.
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of GNP, in the classic workDevelopment As Freedom the Nobel prize winner Amartya Sen pointed out that the issue of development cannot be separated from the conceptual framework of human right. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.25. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated an integral part of life under Art.21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, 1995 (6) SCC 363 ), public trust doctrine (M.C. Mehta v. Kamal Nath , 1997 (1) SCC 388 ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.It is no doubt true that in regard to certain aspects such as Catchment Area Treatment, conditions imposed are not fully implemented and it is not very clear from various affidavits filed whether in regard flora and fauna also the, conditions have been fulfilled or not. Whenconditions have been imposed, it is necessary that the conditions are fulfilled along with the construction of the engineering works. In refuting the contention of the petitioners that impoundment in the reservoir has been done before theimplementation of environment and forest conditional clearances, it is stated as follows:"Diversion tunnels on the right bank, T3/T4 have been closed in December 2001 for taking up construction of stilling basin and shaft spillway. The reduced levels of T3 and T4 tunnels are 606 M and 609 M respectively. Diversion tunnels on the left bank, T1/T2 have been kept open for discharging the water downstream. The reduced level of both T1 and T2 is the same viz., 632 M. The current quantity of discharge remains unabated from the discharge prior to the start of project construction. There is no alteration/reduction in quantity of water discharged from the river prior to taking up the project and as of now.The maximum discharge in the river observed during floods in the year 1978, that is 3669 cusecs.Impoundment in the reservoir is generally done for the purpose of deriving benefits from the storage by creating facility for irrigation, drinking water supply, power generation etc. As a matter of fact, none of the benefits are presently accruing from the project at the current stage. Diversion tunnels T3/T4 have been closed for taking up construction of stilling basin before they are permanently closed."78.It is submitted on behalf of the respondents that the initial impoundment in the reservoir will start with the closure of diversion tunnels T1/T2 and water level rising to EL 700 M. The maximum draw down level is EL 740 M, The reservoir spread at EL 700 M will be 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq. km. The present water spread of reservoir at EL 632 M is 1.2 sq. km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works related to Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disaster management plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion of project meant rise in water level in the reservoir and simultaneously increase in the water spread.It is made clear that the condition ofimplementation of conditions prior to the commissioning of the project shall be closely monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of diversion tunnels T1/T2 for Impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed In all respects. In addition, the catchment area treatment of direct draining areas shall be completed and the project authority will obtain clearance from MoEF before closing the outlet at EL 700 M. An additional affidavit has also been filed on behalf of the Union of India to the effect that a high level inter ministerial review committee Would be constituted consisting of Secretaries of all the concerned Ministries of the Central Government to examine various aspects and closely monitoring of the same. It is only after the completion of these conditions, impoundment would start. This categorical statement made by the respondents should assure the petitioners that no impoundment would be allowed until all the conditions in the Environmental Clearance Certificate of the Tehri Dam dated July 19, 1990 are complied with and stand fulfilled.80. The petitioners have disputed that the respondents have complied with the conditions of clearance. But a careful analysis of their pleadings will indicate the dispute is to the extent of compliance only and not that there is no compliance at all. On behalf of the Union of India, a status report supported by an affidavit is filed which indicates that there is substantial compliance with all the conditions. We have in detail discussed the various facts set out in the said affidavit and status in the earlier portion of this order.81. In this background, we find that the petitioners have not established or is there any material to conclude that the Project work is being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, they were taken care of by monitoring agencies.
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R.S. Makashi and Others Vs. I.M. Menon and Others | High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of the Constitution. 39. It now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated No vember 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles. The first point urged before us is that the effect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable t o merged government servants and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1, 1963. This argument is based on a to tal misconception of the scope and effect of rule 7 (b). What that rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Governm ent Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the preservation and maintenance of the pre-existing inter se seniority as between the CFD personnel even after their absorpt ion in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in t he BRO. A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear. The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejected. 40. There is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid down in clause (a) rule 4, many persons who were juniors t o the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors / Senior Clerks/Deputy Accountants. There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate- gory in that organisation. We do not find anything i n rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFD. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the lim itation specified therein, namely, that in the case of merged Government servants their inter se seniority will be preserved in tact. Hence, no person who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspe ctors in the CFD can be assigned seniority or rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO. Similarly, no person who has been taken into the BRO as a clerk from the CFD can un der any circumstances be placed above the writ petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO. It is clear from the averments contained in the counter-affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit A produced along with the counter-affidavit of the first respondent herein shows that as many as 30 persons, wh o had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975. Similarly, Exhibit B gives the names and par ticulars of persons who were appointed as supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corres ponding cadre in the BRO. We have already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was ju nior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors.In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in devitation from the legal position explained above call for immediate revision. We would accordingly dire ct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgment. 41. | 1[ds]we have unhesitatingly come to the conclusion that the view expressed by the High Court that clauses (a) and (c) of rule 4 and the proviso to rule 7 of the impugned Government Resolution dated March 22, 1968 are violative of the provisions of Articles 14 and 16 of the Constitution, is unsustainable in law and that the direction given by the High Court to the State Government to prepare a fresh seniority list without taking into consi deration the aforesaid provisions of the impugned Government Resolution and to give to the writ petitioners consequential benefits, including promotions and the emoluments on the n basis of such revised seniority gradation list was not called for. W e are also of opinion that the High Court was wrong in over- ruling the preliminary objection raised before it by the present appellants that the writ petition in so far it sought to challenge the legality of the Government Resolution dated March 22, 1968, was highly belated and was liable to be dismissed on the ground of laches and delayIt is said that if this was the practice the guarantee of Art. 32 would be destroyed. But the article no where says that a petition, howsoever late, should be entertained and a writ or order or direction granted, howsoever remote the date of infringement of the fundamental right. In pr actice this Court has not been entertaining stale claims by persons who have slept over their rightsThe learned Counsel for the petitioners strong ly urges that the decision of this Court in M/s. Tilokchand Motichands (2) case needs review. But after care fully considering the matter, we are of the view that no relief should be given to petitioners who, with out any reasonable explanation, approach this Court under Art. 32 of the Constitution after inordinate delay. The highest A Court in this land has been given original Jurisdiction to entertain petitions under Art. 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of yearsIt is said that Art. 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entit led to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of yearsThe Government Re solution of March 22, 1968 must have come to the knowledge of the writ petitioners at least when the provisional seniority list dated May 28, 1971 was circulated amongst the staff of the BRO. Thereafter, in November 1972, a final Gradat ion List of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 had been published and the said list was circulated to all the members borne on the concerned categories of the organisation. It was expres sly stated in both the aforesaid lists that the ranking of personnel had been effected in accordance with the principles laid down in the Government Resolution dated March 22, 1968. The writ petitioners did not file any objections against th e provisional list despite representations having been invited, nor did they take any steps to question the validity of the final gradation list or the seniority principles laid down in the Government Resolution of 1968, on the bas is of which the said list had beenl later, in April 1973, another provisional Gradation List of personnel working in the aforesaid categories was published by the Controller of Rationing and the said list, which was a lso drawn up in accordance with the seniority principles enunciated in the Government Resolution of March 22, 1968, had been admittedly brought to the knowledge of the writ petitioners. They did not file any objections against the said list within the time prescribed. And what is more significant is that even in the earlier representations filed by writ petitioners 1 to 3, which they filed in November 1973, no objection or protest was raised by them against the principles for determina tion of seniority laid down in the Government Resolution of 1968. The Controller of Rationing informed writ petitioners 1 to 3 in December 1973 itself that the representations stood rejected since the seniority and rank assigned to them in the provisional Gradation List were in strict conformity with the principles laid down in the Government Resolution of1968.Eventhere after, the petitioners did not wake up and it was only on January 31, 1976 that they approached the High Court by filing the present writ petition out of which this appeal has arisen seeking to quash the Government Resolution of 1968 and the Gradation Lists of November 18, 1975 and November 27, 1975.The petitioners have not furnished any valid explanati on whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of1968.As already indicated by us, the fact that the Government had subsequentl y passed a Resolution dated March l, 1974 directing the regularisation of the temporary appointments of non-P.S.Cs. clerical personnel working in Ministerial posts in the different Government Departments in Greater Bombay, has no relevancy at a ll in this context of dealing with the question of delay and laches on the part of the petitioners in taking steps to challenge against the Government Resolution of1968.The inter se seniority between the petitioners and the other personnel regularly absorbed in the BRO who have come over to the BRO as "released Government servants" is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has been expressly made clear therein that the temporary pe rsonnel who are entitled to the benefit of regularisation thereunder were to be assigned seniority only on the basis that regular appointments were effected on the date of issue of the said order. The learned Single Judge of the High Court was, th erefore, clearly in error in thinking that the passing of the Government Resolution of 1974 furnished a fresh cause of action for the petitioners for agitating their contentions regarding the invalidity of the Government Resolution of1968.We ar e unable to appreciate the further reason stated by the learned Single Judge, that the respondents had not placed on record any factual data to show the extent of promotions made on the basis of the seniority list of 1972 and the manner in which the promotees would be affected if the relief was granted to the writ petitioners, and the same we find to be is based on a totally incorrect approach. It is to be noticed that there was no dispute before the High Court that from t he date of publication of the provisional list of May 28, 1971, which was expressly based on the principles laid down in the Government Resolution of 1968, the seniority and rank of all the personnel in concerned categories had been fixed in a ccordance with the principles laid down in the impugned Resolution. In the counter-affidavits filed in the High Court on behalf of the State Government and the Controller of Rationing as well as in the affidavits filed by the other r espondents, it had been specifically averred that innumerable promotions had been made during the period of six years on the basis of seniority as fixed in accordance with the impugned rules and many officers had gone up by two or three sta ges as a result of such promotions. Further, there is the clinching fact that the writ petitioners themselves had impleaded as many as 162 officers as respondents on the ground that they were all likely to be affected in case the re liefs claimed in the writ petition were granted. In these circumstances, we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened b etween the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, ]968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have beenn the merits also , we do not find any substance in the attack levelled by the petitioners against the legality and validity of the seniority principles laid down in the impugned Government Resolution of March 22,1968.We shall briefly indicate our reasons for reaching this conclusion. The BRO was a totally new Department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February 11, 1966. Under the said Resolution, it was directed that the staff for manning the new organisation should consist of:(a) the skeleton staff already sanctioned under an earlier Government Resolution dated October 21, 1965 for carrying out the preliminary work in connection with the establi shment of the new organisation (BRO);(d) the existing staff under the Controller of Foodgarins distribution, Bombay, Consisting of 384 posts which were to be merged with a new Bombay Rationin g office (BRO) with effect from March 1, 1956;(c) personnel drawn on deputation from other departments of the State Governments; and(d) persons directly recruited to the BROThe Government Re solution of March 22, 1968 must have come to the knowledge of the writ petitioners at least when the provisional seniority list dated May 28, 1971 was circulated amongst the staff of the BRO. Thereafter, in November 1972, a final Gradat ion List of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 had been published and the said list was circulated to all the members borne on the concerned categories of the organisation. It was expres sly stated in both the aforesaid lists that the ranking of personnel had been effected in accordance with the principles laid down in the Government Resolution dated March 22,1968.The writ petitioners did not file any objections against th e provisional list despite representations having been invited, nor did they take any steps to question the validity of the final gradation list or the seniority principles laid down in the Government Resolution of 1968, on the bas is of which the said list had beenl later, in April 1973, another provisional Gradation List of personnel working in the aforesaid categories was published by the Controller of Rationing and the said list, which was a lso drawn up in accordance with the seniority principles enunciated in the Government Resolution of March 22, 1968, had been admittedly brought to the knowledge of the writ petitioners. They did not file any objections against the said list within the time prescribed. And what is more significant is that even in the earlier representations filed by writ petitioners 1 to 3, which they filed in November 1973, no objection or protest was raised by them against the principles for determina tion of seniority laid down in the Government Resolution of1968.The Controller of Rationing informed writ petitioners 1 to 3 in December 1973 itself that the representations stood rejected since the seniority and rank assigned to them in the provisional Gradation List were in strict conformity with the principles laid down in the Government Resolution of1968.Eventhere after, the petitioners did not wake up and it was only on January 31, 1976 that they approached the High Court by filing the present writ petition out of which this appeal has arisen seeking to quash the Government Resolution of 1968 and the Gradation Lists of November 18, 1975 and November 27, 1975.The petitioners have not furnished any valid explanati on whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of1968.As already indicated by us, the fact that the Government had subsequentl y passed a Resolution dated March l, 1974 directing the regularisation of the temporary appointments of non-P.S.Cs. clerical personnel working in Ministerial posts in the different Government Departments in Greater Bombay, has no relevancy at a ll in this context of dealing with the question of delay and laches on the part of the petitioners in taking steps to challenge against the Government Resolution of1968.The inter se seniority between the petitioners and the other personnel regularly absorbed in the BRO who have come over to the BRO as "released Government servants" is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has been expressly made clear therein that the temporary pe rsonnel who are entitled to the benefit of regularisation thereunder were to be assigned seniority only on the basis that regular appointments were effected on the date of issue of the said order. The learned Single Judge of the High Court was, th erefore, clearly in error in thinking that the passing of the Government Resolution of 1974 furnished a fresh cause of action for the petitioners for agitating their contentions regarding the invalidity of the Government Resolution of1968.We ar e unable to appreciate the further reason stated by the learned Single Judge, that the respondents had not placed on record any factual data to show the extent of promotions made on the basis of the seniority list of 1972 and the manner in which the promotees would be affected if the relief was granted to the writ petitioners, and the same we find to be is based on a totally incorrect approach. It is to be noticed that there was no dispute before the High Court that from t he date of publication of the provisional list of May 28, 1971, which was expressly based on the principles laid down in the Government Resolution of 1968, the seniority and rank of all the personnel in concerned categories had been fixed in a ccordance with the principles laid down in the impugned Resolution. In the counter-affidavits filed in the High Court on behalf of the State Government and the Controller of Rationing as well as in the affidavits filed by the other r espondents, it had been specifically averred that innumerable promotions had been made during the period of six years on the basis of seniority as fixed in accordance with the impugned rules and many officers had gone up by two or three sta ges as a result of such promotions. Further, there is the clinching fact that the writ petitioners themselves had impleaded as many as 162 officers as respondents on the ground that they were all likely to be affected in case the re liefs claimed in the writ petition were granted. In these circumstances, we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened b etween the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, ]968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have beenn the merits also , we do not find any substance in the attack levelled by the petitioners against the legality and validity of the seniority principles laid down in the impugned Government Resolution of March 22,1968.We shall briefly indicate our reasons for reaching this conclusion. The BRO was a totally new Department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February 11, 1966. Under the said Resolution, it was directed that the staff for manning the new organisation should consist of:(a) the skeleton staff already sanctioned under an earlier Government Resolution dated October 21, 1965 for carrying out the preliminary work in connection with the establi shment of the new organisation (BRO);(d) the existing staff under the Controller of Foodgarins distribution, Bombay, Consisting of 384 posts which were to be merged with a new Bombay Rationin g office (BRO) with effect from March 1, 1956;(c) personnel drawn on deputation from other departments of the State Governments; and(d) persons directly recruited to the BROThe Government Re solution of March 22, 1968 must have come to the knowledge of the writ petitioners at least when the provisional seniority list dated May 28, 1971 was circulated amongst the staff of the BRO. Thereafter, in November 1972, a final Gradat ion List of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 had been published and the said list was circulated to all the members borne on the concerned categories of the organisation. It was expres sly stated in both the aforesaid lists that the ranking of personnel had been effected in accordance with the principles laid down in the Government Resolution dated March 22,1968.The writ petitioners did not file any objections against th e provisional list despite representations having been invited, nor did they take any steps to question the validity of the final gradation list or the seniority principles laid down in the Government Resolution of 1968, on the bas is of which the said list had beenl later, in April 1973, another provisional Gradation List of personnel working in the aforesaid categories was published by the Controller of Rationing and the said list, which was a lso drawn up in accordance with the seniority principles enunciated in the Government Resolution of March 22, 1968, had been admittedly brought to the knowledge of the writ petitioners. They did not file any objections against the said list within the time prescribed. And what is more significant is that even in the earlier representations filed by writ petitioners 1 to 3, which they filed in November 1973, no objection or protest was raised by them against the principles for determina tion of seniority laid down in the Government Resolution of1968.The Controller of Rationing informed writ petitioners 1 to 3 in December 1973 itself that the representations stood rejected since the seniority and rank assigned to them in the provisional Gradation List were in strict conformity with the principles laid down in the Government Resolution of1968.Eventhere after, the petitioners did not wake up and it was only on January 31, 1976 that they approached the High Court by filing the present writ petition out of which this appeal has arisen seeking to quash the Government Resolution of 1968 and the Gradation Lists of November 18, 1975 and November 27, 1975.The petitioners have not furnished any valid explanati on whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of1968.As already indicated by us, the fact that the Government had subsequentl y passed a Resolution dated March l, 1974 directing the regularisation of the temporary appointments of non-P.S.Cs. clerical personnel working in Ministerial posts in the different Government Departments in Greater Bombay, has no relevancy at a ll in this context of dealing with the question of delay and laches on the part of the petitioners in taking steps to challenge against the Government Resolution of1968.The inter se seniority between the petitioners and the other personnel regularly absorbed in the BRO who have come over to the BRO as "released Government servants" is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has been expressly made clear therein that the temporary pe rsonnel who are entitled to the benefit of regularisation thereunder were to be assigned seniority only on the basis that regular appointments were effected on the date of issue of the said order. The learned Single Judge of the High Court was, th erefore, clearly in error in thinking that the passing of the Government Resolution of 1974 furnished a fresh cause of action for the petitioners for agitating their contentions regarding the invalidity of the Government Resolution of1968.We ar e unable to appreciate the further reason stated by the learned Single Judge, that the respondents had not placed on record any factual data to show the extent of promotions made on the basis of the seniority list of 1972 and the manner in which the promotees would be affected if the relief was granted to the writ petitioners, and the same we find to be is based on a totally incorrect approach. It is to be noticed that there was no dispute before the High Court that from t he date of publication of the provisional list of May 28, 1971, which was expressly based on the principles laid down in the Government Resolution of 1968, the seniority and rank of all the personnel in concerned categories had been fixed in a ccordance with the principles laid down in the impugned Resolution. In the counter-affidavits filed in the High Court on behalf of the State Government and the Controller of Rationing as well as in the affidavits filed by the other r espondents, it had been specifically averred that innumerable promotions had been made during the period of six years on the basis of seniority as fixed in accordance with the impugned rules and many officers had gone up by two or three sta ges as a result of such promotions. Further, there is the clinching fact that the writ petitioners themselves had impleaded as many as 162 officers as respondents on the ground that they were all likely to be affected in case the re liefs claimed in the writ petition were granted. In these circumstances, we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened b etween the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, ]968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have beenn the merits also , we do not find any substance in the attack levelled by the petitioners against the legality and validity of the seniority principles laid down in the impugned Government Resolution of March 22,1968.We shall briefly indicate our reasons for reaching this conclusion. The BRO was a totally new Department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February 11, 1966. Under the said Resolution, it was directed that the staff for manning the new organisation should consist of:(a) the skeleton staff already sanctioned under an earlier Government Resolution dated October 21, 1965 for carrying out the preliminary work in connection with the establi shment of the new organisation (BRO);(d) the existing staff under the Controller of Foodgarins distribution, Bombay, Consisting of 384 posts which were to be merged with a new Bombay Rationin g office (BRO) with effect from March 1, 1956;(c) personnel drawn on deputation from other departments of the State Governments; and(d) persons directly recruited to the BROClause (c) of rule 4 which is the next provision that has been struck down by the High Court merely states that the seniority of Government servants in the cadre of Senior Clerks/Ra tioning Inspectors/Deputy Accountants shall be refixed in accordance with the principles laid down in clauses (a) and (b) of rule4.We have repelled the challenge against clause (a) of rule 4 and no challenge has been raised by th e petitioners before us against clause (b) of the said rule. It must automatically follow that the aforesaid provision contained in clause (c) of rule 4 is perfectly valid and constitutionalThat takes us on to the proviso to rule 7 which i s the only other provision struck down by the High Court. Clause (a) of rule 7 lays down that in the case of Government servants taken into the BRO on release from one and the same office, their seniority inter se in their former office shall be maintained in the BRO. Clause (b) is a similar provision relating to the "merged Government servants" (ex- CFD personnel). Clause (c) of rule 7 lays down that the inter se seniority of persons directly recruited in the former CFD organi sation shall be governed by the principles set out in the Government Resolution dated April l,. It isfurther stated in the said clause that in regard to persons who were taken to the CFD from one and the same Government office/department, they shall take their rank according to their inter se seniority in the office/ department from which they were drawn. Thereafter, follows the impugned proviso which lays down that where there is a clash of principles contained in the Gov ernment Resolution dated April 1, 1963 with the seniority inter se in the former department, the seniority inter se in the former Department shall prevail. The principles for fixation of inter se seniority of personnel working in the CFD ha d been enunciated by the Government in the Resolution dated April 1,. Whathas done under the impugned proviso is only to state that with respect to persons who have been drafted into the CFD organisation from one and the same Government depar tment on deputation basis, their inter se seniority in the former department shall not be disturbed and that to the said extent a deviation should be made from the principles laid down in the Government Resolution dated April 1,. Wefail to see how the said direction contained in the impugned proviso for preservation of the inter se seniority of deputationists who have been drawn from one and the same Government department to serve the CFD can be said to be arbitrary or unreasonable. I t is a just and whole- some principle commonly applied in such situations where persons from other departments are drafted to serve on deputation their inter se seniority in the parent department should be respected and preserved during the period of such deputation to the new, therefore, consider that the High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of thet now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated No vember 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles.The first point urged before us is that the effect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable t o merged government servants and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1,This argument is based on a to tal misconception of the scope and effect of rule 7. Whatthat rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Governm ent Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the preservation and maintenance of the pre-existing inter se seniority as between the CFD personnel even after their absorpt ion in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in t he BRO. A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear. The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejectedThere is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid down in clause (a) rule 4, many persons who were juniors t o the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors / Senior Clerks/Deputy Accountants. There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate- gory in thatorganisation.Wedo not find anything i n rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFD. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the lim itation specified therein, namely, that in the case of merged Government servants their inter se seniority will be preserved in tact. Hence, no person who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspe ctors in the CFD can be assigned seniority or rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO. Similarly, no person who has been taken into the BRO as a clerk from the CFD can un der any circumstances be placed above the writ petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of theBRO.It isclear from the averments contained in the counter-affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit A produced along with the counter-affidavit of the first respondent herein shows that as many as 30 persons, wh o had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975. Similarly, Exhibit B gives the names and par ticulars of persons who were appointed as supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corres ponding cadre in theBRO.Wehave already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was ju nior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors.In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in devitation from the legal position explained above call for immediatee wouldaccordingly dire ct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgmentAfter giving our anxious consideration to the arguments addressed by counsel appearing on both sides, | 1 | 14,704 | 5,977 | ### 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:
High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of the Constitution. 39. It now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated No vember 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles. The first point urged before us is that the effect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable t o merged government servants and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1, 1963. This argument is based on a to tal misconception of the scope and effect of rule 7 (b). What that rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Governm ent Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the preservation and maintenance of the pre-existing inter se seniority as between the CFD personnel even after their absorpt ion in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in t he BRO. A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear. The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejected. 40. There is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid down in clause (a) rule 4, many persons who were juniors t o the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors / Senior Clerks/Deputy Accountants. There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate- gory in that organisation. We do not find anything i n rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFD. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the lim itation specified therein, namely, that in the case of merged Government servants their inter se seniority will be preserved in tact. Hence, no person who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspe ctors in the CFD can be assigned seniority or rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO. Similarly, no person who has been taken into the BRO as a clerk from the CFD can un der any circumstances be placed above the writ petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO. It is clear from the averments contained in the counter-affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit A produced along with the counter-affidavit of the first respondent herein shows that as many as 30 persons, wh o had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975. Similarly, Exhibit B gives the names and par ticulars of persons who were appointed as supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corres ponding cadre in the BRO. We have already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was ju nior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors.In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in devitation from the legal position explained above call for immediate revision. We would accordingly dire ct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgment. 41.
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such deputation to the new, therefore, consider that the High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of thet now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated No vember 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles.The first point urged before us is that the effect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable t o merged government servants and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1,This argument is based on a to tal misconception of the scope and effect of rule 7. Whatthat rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Governm ent Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the preservation and maintenance of the pre-existing inter se seniority as between the CFD personnel even after their absorpt ion in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in t he BRO. A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear. The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejectedThere is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid down in clause (a) rule 4, many persons who were juniors t o the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors / Senior Clerks/Deputy Accountants. There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate- gory in thatorganisation.Wedo not find anything i n rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFD. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the lim itation specified therein, namely, that in the case of merged Government servants their inter se seniority will be preserved in tact. Hence, no person who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspe ctors in the CFD can be assigned seniority or rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO. Similarly, no person who has been taken into the BRO as a clerk from the CFD can un der any circumstances be placed above the writ petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of theBRO.It isclear from the averments contained in the counter-affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit A produced along with the counter-affidavit of the first respondent herein shows that as many as 30 persons, wh o had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975. Similarly, Exhibit B gives the names and par ticulars of persons who were appointed as supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corres ponding cadre in theBRO.Wehave already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was ju nior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors.In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in devitation from the legal position explained above call for immediatee wouldaccordingly dire ct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgmentAfter giving our anxious consideration to the arguments addressed by counsel appearing on both sides,
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Ram Gopal & Another Vs. Alladia & Others | Hegde, J.1. This is an appeal by special leave. The plaintiff is the appellant. He sued for the possession of the suit properties after issuing a notice purporting to terminate the tenancy of the defendants (respondents in this appeal). The case of the plaintiff is that t he defendants are monthly tenants. The trial Court as well as the 1st appellate Court upheld the contention of the appellant and decreed the suit for possession. In Second Appeal, the High Court reversed the decree and judgement of the Courts below and dismissed the suit on two grounds. It firstly held that as the defendants have become Bhumidars under the provisions of the U. P. Urban Areas Zamindari Abolition and Land Reforms Act (U. P. Act 9 of 1957), they cannot be evicted. Secondly it came to the conclusion that the defendants are licensees, and not lessees and as such they could not be evicted.2. One Mst. Isa Bela and her children were the owners of the suit properties. They entered into a registered agreement with Masita, the father of the defendants under which they permitted Masita to construct a house on the suit properties. The agreement in question was entered into in the year 1911. It is marked as Exh. Ka-6 in the case. That document was signed only by Masita. Admittedly Isa Bela and her children agreed to the terms embodied in the document. Under the document Masita was to pay rent to Isa Bela and her children at the rate of Rs. 4/- per annum. The document further says:"Firstly that I shall continue to pay the rent annually in the office of the proprietors, aforesaid, at mauza Mussorie or to their karinda. I shall take a receipt for the same from the Manager, duly signed by him. Without the receipt any objection regarding the payment of rent shall be invalid. If the rent, aforesaid, remains unpaid, I shall immediately be liable to be ejected. Secondly that I shall take away the entire material existing in the house, within one month after I vacate the same. I shall, thereafter, vacate the land. If during this period, I, the executant or my representative and successors do not remove the materials or do not vacate the land, the proprietors, aforesaid shall have the right to take the materials in their proprietary possession and occupation. I, the executant, my representatives or successors or the owner of the materials shall have no claim to any cost or material against the proprietors, aforesaid. Thirdly, that I shall not sublet the house aforesaid to any other person on rent on my own behalf and on my own authority nor I shall allow any one to settle therein. If I do so, the proprietors aforesaid shall at all times, have the right to get their house vacated under these circumstances and eject us therefrom. I shall have no objection."3. In pursuance of the afore-mentioned agreement the suit property was put in the possession of Masita. The house put up by Masita was reconstructed by the defendants. The defendants have been regularly paying Rs. 4/- per annum to the owners of the suit property. It is not said that they had contravened and of the terms in the agreement. The original owner sold the suit property to one Babu Ram who in turn sold the same to the plaintiffs. The plaintiffs have brought this suit on the basis of the agreement entered into in 1911.4. The principal question debated before the High Court and the Courts below is whether Exh. Ka-6 evidences a lease or license? It may be noted that the agreement was entered into in the year 1911 long before the third paragraph of Section 107 of the Transfer of Property Act was incorporated into that section. But for our present purpose, it is not necessary for us to go into the question whether under the law as it stood in 1911 Exh. Ka-6 can be considered as a valid lease as only Masita had signed that document. On that question some of the High Courts have differed. But what is clear is that right from 1911, the defendants are enjoying the suit property on the strength of the agreement entered into between them and the original owner. From that agreement it is clear that the original owner had agreed not to evict Masita and his descendants from the suit property so long as they conform to the terms of the agreement.5. Under these circumstances we think that the claim made by the plaintiffs is a highly unjust one. Hence we do not think that we will be justified in exercising our discretionary power under Article 136 of the Constitution in interfering with the judgment of the High Court. In this view of the matter there is no need to go into the correctness of the decision of the High Court that the defendants have acquired Bhumidari rights in the suit property. That question is left open to be decided in future, if necessary. | 0[ds]4. The principal question debated before the High Court and the Courts below is whether Exh.evidences a lease or license? It may be noted that the agreement was entered into in the year 1911 long before the third paragraph of Section 107 of the Transfer of Property Act was incorporated into that section. But for our present purpose, it is not necessary for us to go into the question whether under the law as it stood in 1911 Exh.can be considered as a valid lease as only Masita had signed that document. On that question some of the High Courts have differed. But what is clear is that right from 1911, the defendants are enjoying the suit property on the strength of the agreement entered into between them and the original owner. From that agreement it is clear that the original owner had agreed not to evict Masita and his descendants from the suit property so long as they conform to the terms of the agreement.5. Under these circumstances we think that the claim made by the plaintiffs is a highly unjust one. Hence we do not think that we will be justified in exercising our discretionary power under Article 136 of the Constitution in interfering with the judgment of the High Court. In this view of the matter there is no need to go into the correctness of the decision of the High Court that the defendants have acquired Bhumidari rights in the suit property. That question is left open to be decided in future, if necessary. | 0 | 924 | 276 | ### 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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Hegde, J.1. This is an appeal by special leave. The plaintiff is the appellant. He sued for the possession of the suit properties after issuing a notice purporting to terminate the tenancy of the defendants (respondents in this appeal). The case of the plaintiff is that t he defendants are monthly tenants. The trial Court as well as the 1st appellate Court upheld the contention of the appellant and decreed the suit for possession. In Second Appeal, the High Court reversed the decree and judgement of the Courts below and dismissed the suit on two grounds. It firstly held that as the defendants have become Bhumidars under the provisions of the U. P. Urban Areas Zamindari Abolition and Land Reforms Act (U. P. Act 9 of 1957), they cannot be evicted. Secondly it came to the conclusion that the defendants are licensees, and not lessees and as such they could not be evicted.2. One Mst. Isa Bela and her children were the owners of the suit properties. They entered into a registered agreement with Masita, the father of the defendants under which they permitted Masita to construct a house on the suit properties. The agreement in question was entered into in the year 1911. It is marked as Exh. Ka-6 in the case. That document was signed only by Masita. Admittedly Isa Bela and her children agreed to the terms embodied in the document. Under the document Masita was to pay rent to Isa Bela and her children at the rate of Rs. 4/- per annum. The document further says:"Firstly that I shall continue to pay the rent annually in the office of the proprietors, aforesaid, at mauza Mussorie or to their karinda. I shall take a receipt for the same from the Manager, duly signed by him. Without the receipt any objection regarding the payment of rent shall be invalid. If the rent, aforesaid, remains unpaid, I shall immediately be liable to be ejected. Secondly that I shall take away the entire material existing in the house, within one month after I vacate the same. I shall, thereafter, vacate the land. If during this period, I, the executant or my representative and successors do not remove the materials or do not vacate the land, the proprietors, aforesaid shall have the right to take the materials in their proprietary possession and occupation. I, the executant, my representatives or successors or the owner of the materials shall have no claim to any cost or material against the proprietors, aforesaid. Thirdly, that I shall not sublet the house aforesaid to any other person on rent on my own behalf and on my own authority nor I shall allow any one to settle therein. If I do so, the proprietors aforesaid shall at all times, have the right to get their house vacated under these circumstances and eject us therefrom. I shall have no objection."3. In pursuance of the afore-mentioned agreement the suit property was put in the possession of Masita. The house put up by Masita was reconstructed by the defendants. The defendants have been regularly paying Rs. 4/- per annum to the owners of the suit property. It is not said that they had contravened and of the terms in the agreement. The original owner sold the suit property to one Babu Ram who in turn sold the same to the plaintiffs. The plaintiffs have brought this suit on the basis of the agreement entered into in 1911.4. The principal question debated before the High Court and the Courts below is whether Exh. Ka-6 evidences a lease or license? It may be noted that the agreement was entered into in the year 1911 long before the third paragraph of Section 107 of the Transfer of Property Act was incorporated into that section. But for our present purpose, it is not necessary for us to go into the question whether under the law as it stood in 1911 Exh. Ka-6 can be considered as a valid lease as only Masita had signed that document. On that question some of the High Courts have differed. But what is clear is that right from 1911, the defendants are enjoying the suit property on the strength of the agreement entered into between them and the original owner. From that agreement it is clear that the original owner had agreed not to evict Masita and his descendants from the suit property so long as they conform to the terms of the agreement.5. Under these circumstances we think that the claim made by the plaintiffs is a highly unjust one. Hence we do not think that we will be justified in exercising our discretionary power under Article 136 of the Constitution in interfering with the judgment of the High Court. In this view of the matter there is no need to go into the correctness of the decision of the High Court that the defendants have acquired Bhumidari rights in the suit property. That question is left open to be decided in future, if necessary.
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4. The principal question debated before the High Court and the Courts below is whether Exh.evidences a lease or license? It may be noted that the agreement was entered into in the year 1911 long before the third paragraph of Section 107 of the Transfer of Property Act was incorporated into that section. But for our present purpose, it is not necessary for us to go into the question whether under the law as it stood in 1911 Exh.can be considered as a valid lease as only Masita had signed that document. On that question some of the High Courts have differed. But what is clear is that right from 1911, the defendants are enjoying the suit property on the strength of the agreement entered into between them and the original owner. From that agreement it is clear that the original owner had agreed not to evict Masita and his descendants from the suit property so long as they conform to the terms of the agreement.5. Under these circumstances we think that the claim made by the plaintiffs is a highly unjust one. Hence we do not think that we will be justified in exercising our discretionary power under Article 136 of the Constitution in interfering with the judgment of the High Court. In this view of the matter there is no need to go into the correctness of the decision of the High Court that the defendants have acquired Bhumidari rights in the suit property. That question is left open to be decided in future, if necessary.
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Sunil Bharti Mittal Vs. Cbi | Court has correctly noted that issuance of summons against Respondents 2 to 7 is illegal and amounts to abuse of process of law. The order of the High Court, therefore, needs no interference by this Court.” 41. We have already mentioned above that even if the CBI did not implicate the appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of first class (and in those cases where Magistrate of the second class is specially empowered to do so) may take cognizance of any offence under the following three eventualities: (a) upon receiving a complaint of facts which constitute such offence;(b) upon a police report of such facts; and(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 42. This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression “taking cognizance” has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors. ((2008) 2 SCC 492 )in the following words: “19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of: and when used with reference to a court or a Judge, it connoted “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.20. “Taking Cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence....” Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. 43. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards. 44. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (See SWIL Ltd. v. State of Delhi ((2001) 6 SCC 670 )). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and another ((2003) 6 SCC 195 )). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer. 45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.47. However, the words “sufficient grounds for proceeding” appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. | 1[ds]30. In the first instance, we make it clear that there is no denying the legal position that even when a person is not named in the charge sheet as an accused person, the trial court has adequate powers to summon such a non-named person as well, if the trial court finds that the charge sheet and the documents/material placed along with the charge-sheet disclose sufficient prima facie material to proceed against such a person as. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of theof the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they areof the company.36. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company is attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a direction of a company can be held liable.No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.38. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.47. However, the wordsappearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. | 1 | 15,105 | 606 | ### 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:
Court has correctly noted that issuance of summons against Respondents 2 to 7 is illegal and amounts to abuse of process of law. The order of the High Court, therefore, needs no interference by this Court.” 41. We have already mentioned above that even if the CBI did not implicate the appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of first class (and in those cases where Magistrate of the second class is specially empowered to do so) may take cognizance of any offence under the following three eventualities: (a) upon receiving a complaint of facts which constitute such offence;(b) upon a police report of such facts; and(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 42. This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression “taking cognizance” has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors. ((2008) 2 SCC 492 )in the following words: “19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of: and when used with reference to a court or a Judge, it connoted “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.20. “Taking Cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence....” Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. 43. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards. 44. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (See SWIL Ltd. v. State of Delhi ((2001) 6 SCC 670 )). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and another ((2003) 6 SCC 195 )). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer. 45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.47. However, the words “sufficient grounds for proceeding” appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself.
### Response:
1
### Explanation:
30. In the first instance, we make it clear that there is no denying the legal position that even when a person is not named in the charge sheet as an accused person, the trial court has adequate powers to summon such a non-named person as well, if the trial court finds that the charge sheet and the documents/material placed along with the charge-sheet disclose sufficient prima facie material to proceed against such a person as. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of theof the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they areof the company.36. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company is attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a direction of a company can be held liable.No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.38. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.47. However, the wordsappearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself.
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Hindustan Lever Limited Vs. Ram Mohan Ray and Others (With connected appeal) | be made in such cases as the remedy available was under Section 33C. We are not able to appreciate this argument. Indeed payment of wages is one of the most important among the workers conditions of service. The worker works essentially only for the wages to be paid to him. Therefore, the question that would really have to be answered is whether the refusal of the worker to work was justified or not. It is in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Section 33A.14. Even apart from that it was urged by Mr. Gupte relying upon the decision in National Coal Co. v. L. P. Dave, AIR 1956 Pat 294 that non-payment of wages was neither an alteration in the conditions of service nor is it a punishment and as such cannot come within the mischief of Section 33 of the Act. The Patna High Court relied also for its decision on the decision in Shama Biscuit Co. v. Their Workmen, (1952) 2 Lab LJ 353. The facts of that case are not quite clear. The Court gives no reason for its view that the non-payment of wages is not an alteration of conditions of service applicable to workmen and that it was only a case of default of payment of wages on the pay day falling under Payment of Wages Act. The facts there were in any case different from the facts of the present case. We may refer to the decision of the Allahabad High Court in Ram Nath Koeri v. Lakshmi Devi Sugar Mills, (1956) 2 Lab LJ 11 (All) where it was observed that the payment of wages is one of the essential ingredients of the contract of employment and that the word conditions includes the idea conveyed by the word terms but goes beyond it and is not confined to what is included in that word. The Court also held that term and conditions of employment is wider in scope than the expression terms and conditions of labour.But as we have already observed failure or refusal to pay wages for a certain period may necessitate proceeding under Section 33C, but refusal to pay wages indefinitely on the refusal of the workers to work according to a scheme of reorganisation which was not a valid one, because of the failure to give notice under Section 9A, cannot but be considered to be an alteration in the conditions of service of the workers.15. Mr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) that non-payment of wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A. | 0[ds]7. He also urged that rationalisation and standardisation per se would fall under item 10 even if they were not likely to lead to retrenchment of workmen and only improvement of plant or technique would require that they should lead to retrenchment of workmen in order to fall under item 10. A further submission of his was that standardisation merely meant standardisation of wages.We are not able to accept this argument. It appears to us that the arrangement of words and phrases in that item shows that only rationalisation or standardisation or improvement of plant or technique, which is likely to lead to retrenchment of workmen would fall under that item. In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment ofare of opinion that the retrenchment contemplated under item 10 is retrenchment as defined in clause (oo) of Section 2 where it is defined as the termination by the employer of the service of a workmen for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include voluntary retirement of the workmen. The workers cannot, therefore, make a grievance of the voluntary retirement andof vacancies and try to bring it under item 10.8. As regards item 11 it was urged that as one department out of three has been abolished, this item applies. Though to bring the matter under this item the workmen are not required to show that there is increase in the workload, it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to be given and Section 9A requires the employer to give notice under that section to the workmen likely to be affected by such change.The word affected in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely effected the workers it cannot be brought under item 11. The same consideration applies to the question of change in usage under item 8. Let us, therefore, see what was the scheme of reorganisation to which the workers tooksee no reason to differ from the finding of the Tribunal that there has been no change in usage adversely affecting the workers, and that as there has been no retrenchment item 10 of Schedule IV is not attracted nor is itemclose scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notis in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Sectione scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notMr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) thatof wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A. | 0 | 5,083 | 1,421 | ### 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:
be made in such cases as the remedy available was under Section 33C. We are not able to appreciate this argument. Indeed payment of wages is one of the most important among the workers conditions of service. The worker works essentially only for the wages to be paid to him. Therefore, the question that would really have to be answered is whether the refusal of the worker to work was justified or not. It is in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Section 33A.14. Even apart from that it was urged by Mr. Gupte relying upon the decision in National Coal Co. v. L. P. Dave, AIR 1956 Pat 294 that non-payment of wages was neither an alteration in the conditions of service nor is it a punishment and as such cannot come within the mischief of Section 33 of the Act. The Patna High Court relied also for its decision on the decision in Shama Biscuit Co. v. Their Workmen, (1952) 2 Lab LJ 353. The facts of that case are not quite clear. The Court gives no reason for its view that the non-payment of wages is not an alteration of conditions of service applicable to workmen and that it was only a case of default of payment of wages on the pay day falling under Payment of Wages Act. The facts there were in any case different from the facts of the present case. We may refer to the decision of the Allahabad High Court in Ram Nath Koeri v. Lakshmi Devi Sugar Mills, (1956) 2 Lab LJ 11 (All) where it was observed that the payment of wages is one of the essential ingredients of the contract of employment and that the word conditions includes the idea conveyed by the word terms but goes beyond it and is not confined to what is included in that word. The Court also held that term and conditions of employment is wider in scope than the expression terms and conditions of labour.But as we have already observed failure or refusal to pay wages for a certain period may necessitate proceeding under Section 33C, but refusal to pay wages indefinitely on the refusal of the workers to work according to a scheme of reorganisation which was not a valid one, because of the failure to give notice under Section 9A, cannot but be considered to be an alteration in the conditions of service of the workers.15. Mr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) that non-payment of wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A.
### Response:
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11. The same consideration applies to the question of change in usage under item 8. Let us, therefore, see what was the scheme of reorganisation to which the workers tooksee no reason to differ from the finding of the Tribunal that there has been no change in usage adversely affecting the workers, and that as there has been no retrenchment item 10 of Schedule IV is not attracted nor is itemclose scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notis in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Sectione scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notMr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) thatof wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A.
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Krishna Bus Service Ltd Vs. Smt. Mangli & Ors | an afterthought.22. Even if it is assumed for the sake of argument that one wheel of the bus had fallen into the pit, and the resultant shock broke the tie-rod causing the vehicle to go out of control, then also that would not, when viewed in the light of the other circumstances of the case, negative the inference of negligence on the part of defendants Nos. 1 and 3. The pit was according to Gordhan, DW 2, hardly four feet in length and 6 inches deep. It was not in the metalled part of the road but in the kacha berm. The bus was negotiating a turn. There, the road runs through the habitation of village. It was drizzling and the road was wet and slippery. The speed of the bus at the relevant time, according to PW 6, was 30 miles per hour, and according to DWs 2, 4 and 5 it was 25 miles per hour. The bus was overloaded. In these peculiar circumstances, a duty as cast on the driver to go dead slow. A speed of 25 to 30 miles per hour, in these conditions and in this situation, at the turning of the road, would be imprudently excessive. Had the bus been properly maintained in a sound roadworthy condition, and used with due care and driven with due caution, the tie-rod should not have broken loose by the fall of the wheel in a pit hardly six inches deep, particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall. The pit was in the kacha berm and not right in the metalled portion. The driver could have with ordinary care and diligence avoided it. Thus, the breaking of the tie-rod - assuming it did break - was, at best, a neutral circumstance.23. As rightly pointed out by the High Court, buses in sound road-worthy condition, driven with ordinary care, do not normally overturn. It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle overturned. The maxim res ipsa loquitur would be attracted to such a case. Defendants Nos. 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case.24. In Barkway v. South Wales Transport Co. Ltd ((1948) 2 All ER 460), a motor omnibus loaded with passengers was passing through a village when the offside front tyre burst; the omnibus went over to the offside of the road, mounted the pavement, crashed into some railings, and fell down an embankment, killing four of the passengers, including the plaintiffs husband. On these facts, Asquith, L. J. summarised the position as to the onus of proof thus :"(i) If the defendants omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption.(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. Ltd. ((1942) 46 TLR 1 KBCA), where not a tyre-burst but a skid was involved.(iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not cannot negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres."25. The above observations apply with greater force to the facts of the present case.26. Shyam Sunders case (supra), cited by Mr. Mehta does not advance his case. There, the radiator of the vehicle was getting heated frequently and the driver was pouring water therein after every 6 or 7 miles of journey. It took the vehicle 9 hours to cover a distance of 70 miles and thereafter it suddenly caught fire. On these facts this Court, speaking through Mathew, J., held that there was some defect in the mechanism and the driver was negligent in putting the vehicle on the road. Since the driver could not explain the cause of the accident which was within his exclusive knowledge and it was not possible for the plaintiff to give any evidence as to the cause of the accident, the maxim res ipsa loquitur was attracted to the case.27. Coming back to the instant case, it may be observed that the driver was admittedly an employee of the appellant company, and at the relevant time he was acting in the course of his employment. The vehicle was the property of the appellant company under whose management defendant No. 3 was working at the material time. It is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us. | 0[ds]27. Coming back to the instant case, it may be observed that the driver was admittedly an employee of the appellant company, and at the relevant time he was acting in the course of his employment. The vehicle was the property of the appellant company under whose management defendant No. 3 was working at the material time. It is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us. | 0 | 3,629 | 185 | ### Instruction:
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an afterthought.22. Even if it is assumed for the sake of argument that one wheel of the bus had fallen into the pit, and the resultant shock broke the tie-rod causing the vehicle to go out of control, then also that would not, when viewed in the light of the other circumstances of the case, negative the inference of negligence on the part of defendants Nos. 1 and 3. The pit was according to Gordhan, DW 2, hardly four feet in length and 6 inches deep. It was not in the metalled part of the road but in the kacha berm. The bus was negotiating a turn. There, the road runs through the habitation of village. It was drizzling and the road was wet and slippery. The speed of the bus at the relevant time, according to PW 6, was 30 miles per hour, and according to DWs 2, 4 and 5 it was 25 miles per hour. The bus was overloaded. In these peculiar circumstances, a duty as cast on the driver to go dead slow. A speed of 25 to 30 miles per hour, in these conditions and in this situation, at the turning of the road, would be imprudently excessive. Had the bus been properly maintained in a sound roadworthy condition, and used with due care and driven with due caution, the tie-rod should not have broken loose by the fall of the wheel in a pit hardly six inches deep, particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall. The pit was in the kacha berm and not right in the metalled portion. The driver could have with ordinary care and diligence avoided it. Thus, the breaking of the tie-rod - assuming it did break - was, at best, a neutral circumstance.23. As rightly pointed out by the High Court, buses in sound road-worthy condition, driven with ordinary care, do not normally overturn. It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle overturned. The maxim res ipsa loquitur would be attracted to such a case. Defendants Nos. 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case.24. In Barkway v. South Wales Transport Co. Ltd ((1948) 2 All ER 460), a motor omnibus loaded with passengers was passing through a village when the offside front tyre burst; the omnibus went over to the offside of the road, mounted the pavement, crashed into some railings, and fell down an embankment, killing four of the passengers, including the plaintiffs husband. On these facts, Asquith, L. J. summarised the position as to the onus of proof thus :"(i) If the defendants omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption.(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. Ltd. ((1942) 46 TLR 1 KBCA), where not a tyre-burst but a skid was involved.(iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not cannot negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres."25. The above observations apply with greater force to the facts of the present case.26. Shyam Sunders case (supra), cited by Mr. Mehta does not advance his case. There, the radiator of the vehicle was getting heated frequently and the driver was pouring water therein after every 6 or 7 miles of journey. It took the vehicle 9 hours to cover a distance of 70 miles and thereafter it suddenly caught fire. On these facts this Court, speaking through Mathew, J., held that there was some defect in the mechanism and the driver was negligent in putting the vehicle on the road. Since the driver could not explain the cause of the accident which was within his exclusive knowledge and it was not possible for the plaintiff to give any evidence as to the cause of the accident, the maxim res ipsa loquitur was attracted to the case.27. Coming back to the instant case, it may be observed that the driver was admittedly an employee of the appellant company, and at the relevant time he was acting in the course of his employment. The vehicle was the property of the appellant company under whose management defendant No. 3 was working at the material time. It is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us.
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27. Coming back to the instant case, it may be observed that the driver was admittedly an employee of the appellant company, and at the relevant time he was acting in the course of his employment. The vehicle was the property of the appellant company under whose management defendant No. 3 was working at the material time. It is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us.
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HEMKUNWAR BAI Vs. SUMERSINGH AND ORS | Deepak Gupta, J. 1. This appeal is directed against the judgment of the High Court whereby it reversed the judgment and decree of the Trial Court decreeing the suit of the Plaintiff- Appellant before us. Devisingh was the original owner of the suit property. On the death of Devisingh in the year 1961, the property was mutated in favour of his widow Ratankuwarbai in terms of the Madhya Pradesh Land Revenue Code. 2. On 06.04.1995, Ratankuwarbai executed two sale-deeds [Exhibit D-1 and D-2] in favour of her nephews - Manohar Singh and Sumer Singh. On the same day, as far as his entire remaining property which was not the subject matter of the two sale deeds, she executed a Will in favour of Inder Singh. It would be pertinent to mention that Manohar Singh, Sumer Singh and Inder Singh are real brothers being the sons of sister of Devisingh. 3. It is an admitted fact that Ratankuwarbai was suffering from throat cancer and had undergone some treatment and a document dated 17.04.1995 has been placed on record. Unfortunately, Ratankuwarbai expired on 21.07.1995. Soon thereafter, on 18.09.1995 Hemkuwarbai filed a civil suit for declaration that the two sale-deeds and the Will are sham and fraudulent documents and not binding upon her. She claimed to be in possession of the property and she prayed for a declaration that she be declared to be the owner in possession of the suit property and also prayed that the Respondents be injuncted from interfering in her possession. The Defendants contested the suit and the entire defence is based on the sale deeds and the Will being validly executed documents. 4. Both sides led evidence and the Trial Court, on consideration of the evidence, came to the conclusion that the Defendants had failed to prove the source of the consideration for the sale deeds and transfer of the consideration to Ratankuwarbai. There were also some discrepancies with regard to time as to when the possession of the suit property was allegedly handed over to the Defendants. There are some other discrepancies pointed out but those are minor in nature. 5. The main issue is whether Ratankuwarbai, who was an illiterate lady and suffering from cancer, has executed these documents or not. The Defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale-deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration. 6. We are not going into the factual aspect of the matter at this stage which is in the nature of the second appeal. The findings were given by the Trial Court which findings have been upset by the High Court. It may be possible to urge both the views but it cannot be said that the finding of the High Court is a perverse finding which could not be given in the facts and circumstances of the case. On the basis of the evidence, the High Court has taken a view which is a possible view. | 0[ds]The Defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale-deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration.6. We are not going into the factual aspect of the matter at this stage which is in the nature of the second appeal. The findings were given by the Trial Court which findings have been upset by the High Court. It may be possible to urge both the views but it cannot be said that the finding of the High Court is a perverse finding which could not be given in the facts and circumstances of the case. On the basis of the evidence, the High Court has taken a view which is a possible view. | 0 | 677 | 269 | ### Instruction:
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Deepak Gupta, J. 1. This appeal is directed against the judgment of the High Court whereby it reversed the judgment and decree of the Trial Court decreeing the suit of the Plaintiff- Appellant before us. Devisingh was the original owner of the suit property. On the death of Devisingh in the year 1961, the property was mutated in favour of his widow Ratankuwarbai in terms of the Madhya Pradesh Land Revenue Code. 2. On 06.04.1995, Ratankuwarbai executed two sale-deeds [Exhibit D-1 and D-2] in favour of her nephews - Manohar Singh and Sumer Singh. On the same day, as far as his entire remaining property which was not the subject matter of the two sale deeds, she executed a Will in favour of Inder Singh. It would be pertinent to mention that Manohar Singh, Sumer Singh and Inder Singh are real brothers being the sons of sister of Devisingh. 3. It is an admitted fact that Ratankuwarbai was suffering from throat cancer and had undergone some treatment and a document dated 17.04.1995 has been placed on record. Unfortunately, Ratankuwarbai expired on 21.07.1995. Soon thereafter, on 18.09.1995 Hemkuwarbai filed a civil suit for declaration that the two sale-deeds and the Will are sham and fraudulent documents and not binding upon her. She claimed to be in possession of the property and she prayed for a declaration that she be declared to be the owner in possession of the suit property and also prayed that the Respondents be injuncted from interfering in her possession. The Defendants contested the suit and the entire defence is based on the sale deeds and the Will being validly executed documents. 4. Both sides led evidence and the Trial Court, on consideration of the evidence, came to the conclusion that the Defendants had failed to prove the source of the consideration for the sale deeds and transfer of the consideration to Ratankuwarbai. There were also some discrepancies with regard to time as to when the possession of the suit property was allegedly handed over to the Defendants. There are some other discrepancies pointed out but those are minor in nature. 5. The main issue is whether Ratankuwarbai, who was an illiterate lady and suffering from cancer, has executed these documents or not. The Defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale-deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration. 6. We are not going into the factual aspect of the matter at this stage which is in the nature of the second appeal. The findings were given by the Trial Court which findings have been upset by the High Court. It may be possible to urge both the views but it cannot be said that the finding of the High Court is a perverse finding which could not be given in the facts and circumstances of the case. On the basis of the evidence, the High Court has taken a view which is a possible view.
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### Explanation:
The Defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale-deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration.6. We are not going into the factual aspect of the matter at this stage which is in the nature of the second appeal. The findings were given by the Trial Court which findings have been upset by the High Court. It may be possible to urge both the views but it cannot be said that the finding of the High Court is a perverse finding which could not be given in the facts and circumstances of the case. On the basis of the evidence, the High Court has taken a view which is a possible view.
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Shri Kishan Singh And Others Vs. The State Of Rajasthan And Others | operation from a date earlier than the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both Art. 19 (1) (1) and Art. 31(2). The argument with reference to Art. 19(1)(f) is that S. 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within Art. 19(5), that it is only a law of a regulatory character that is protected by Art. 19(5), that there could be regulation only with reference to rights to be exercised in future, and that a law giving retrospective operation is consequently outside Art. 19(5).This contention rests on an assumption for which there is no basis. The question whether a law is valid under Art. 19(5) can arise only when there is a violation of the fundamental right declared in Art. 19(1)(f), and if the right to hold property imports, as we have held it does, only a right to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future - and that is conceded - it cannot be an encroachment as regards the past.A consideration, therefore, of the question whether a law under Art. 19 (5) should be regulatory, and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controvercy.8. The argument in support of the contention that S. 86 is repugant to Art. 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within Art. 31(2), even though it had the effect of reducing his rights.In - Jagannath Baksh Singh v. United Provinces, AIR 1943 FC 29 (D), the question arose for decision whether the provisions of Act 17 of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to S. 299 (2), Government of India Act, 1935, it was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in - Jagannath Baksh Singh v. United Provinces, AIR 1946 PC 127 (E) observed:"The appellant relies on certain express provisions of the Government of India, Act. Thus he relies on S. 299 of the Act, which provides that no person shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of land for public purposes save on the basis of providing for the payment of compensation.But in the present case there is no question of confiscatory legislation. To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the land lord in connection with his land, is different from compulsory acquisition of the land."9. It was finally urged that S. 86 in so far as it conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional. The decision in - Raghubir Singh v. Court of Wards, Ajmer, AIR 1953 SC 373 (F) was relied on, in support of this contention. There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a tenant."Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner, and that was final and not liable to be questioned in civil courts. It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under Art. 19(1)(f). and that it was not saved by Art. 19(5),But, in the present case, S. 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.There is no force in the contention that S. 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority. Discretion which is wide is not necessarily arbitrary.It was said that under S. 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under S. 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement. We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, and that it invades no fundamental rights of the landlord.10. For the reasons given above, we must hold that the scheme embodied in Ss. 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid. | 0[ds]3. The contention that Ss. 81 to 86 of the Act are void as being repugnant to Art. 14 is sought to be made out on two grounds. It is stated firstly that the Act applies only to what was prior to its merger the State of Marwar, that the present State of Rajasthan comprises Marwar and 17 other States which have merged in it, and that as the Act; as it stands is directed against the jagirdars in one area of the state and not the whole of it, it has become discriminatory any void.This contention is clearly untenable.What Art. 14 prohibits is the unequal treatment of persons similarly situated, and therefore before the petitioners can claim the protection of that Article, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar. But of this, there has been neither allegation norare no materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State ofCourt has also repeatedly held that classification, might properly be made on territorial basis if that was germane to the purposes of the enactment. Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene Art.are unable to agree with this contention. Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time.To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations.It was held by this Court inBiswambhar Singh v. State of Orissa, AIR 1954 SC 139 at pp.(B) and inAmar Singhji v. State of Rajasthan, (S) AIR 1955 SC 504 at pp.(C) that a provision authorising the taking over of estates on different dates was not repugnant to Art. 14, and the principle of those decisions would apply to the present case as well. The contention that the impugned provisions are in contravention of Art. 14 must, therefore, beare unable to agree with this contention. The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable rent cannot be said to invade that right. The contention that the provision in S. 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord. A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair aboutcontention rests on an assumption for which there is no basis. The question whether a law is valid under Art. 19(5) can arise only when there is a violation of the fundamental right declared in Art. 19(1)(f), and if the right to hold property imports, as we have held it does, only a right to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the futureand that is concededit cannot be an encroachment as regards the past.A consideration, therefore, of the question whether a law under Art. 19 (5) should be regulatory, and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controvercy.8. The argument in support of the contention that S. 86 is repugant to Art. 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within Art. 31(2), even though it had the effect of reducing hisbir Singh v. Court of Wards, Ajmer, AIR 1953 SC 373 (F) was relied on, in support of this contention.There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a tenant."Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner, and that was final and not liable to be questioned in civil courts. It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under Art. 19(1)(f). and that it was not saved by Art. 19(5),But, in the present case, S. 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.There is no force in the contention that S. 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority. Discretion which is wide is not necessarily arbitrary.It was said that under S. 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under S. 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement. We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, and that it invades no fundamental rights of the landlord.10. For the reasons given above, we must hold that the scheme embodied in Ss. 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid. | 0 | 3,201 | 1,294 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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operation from a date earlier than the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both Art. 19 (1) (1) and Art. 31(2). The argument with reference to Art. 19(1)(f) is that S. 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within Art. 19(5), that it is only a law of a regulatory character that is protected by Art. 19(5), that there could be regulation only with reference to rights to be exercised in future, and that a law giving retrospective operation is consequently outside Art. 19(5).This contention rests on an assumption for which there is no basis. The question whether a law is valid under Art. 19(5) can arise only when there is a violation of the fundamental right declared in Art. 19(1)(f), and if the right to hold property imports, as we have held it does, only a right to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future - and that is conceded - it cannot be an encroachment as regards the past.A consideration, therefore, of the question whether a law under Art. 19 (5) should be regulatory, and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controvercy.8. The argument in support of the contention that S. 86 is repugant to Art. 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within Art. 31(2), even though it had the effect of reducing his rights.In - Jagannath Baksh Singh v. United Provinces, AIR 1943 FC 29 (D), the question arose for decision whether the provisions of Act 17 of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to S. 299 (2), Government of India Act, 1935, it was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in - Jagannath Baksh Singh v. United Provinces, AIR 1946 PC 127 (E) observed:"The appellant relies on certain express provisions of the Government of India, Act. Thus he relies on S. 299 of the Act, which provides that no person shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of land for public purposes save on the basis of providing for the payment of compensation.But in the present case there is no question of confiscatory legislation. To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the land lord in connection with his land, is different from compulsory acquisition of the land."9. It was finally urged that S. 86 in so far as it conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional. The decision in - Raghubir Singh v. Court of Wards, Ajmer, AIR 1953 SC 373 (F) was relied on, in support of this contention. There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a tenant."Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner, and that was final and not liable to be questioned in civil courts. It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under Art. 19(1)(f). and that it was not saved by Art. 19(5),But, in the present case, S. 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.There is no force in the contention that S. 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority. Discretion which is wide is not necessarily arbitrary.It was said that under S. 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under S. 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement. We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, and that it invades no fundamental rights of the landlord.10. For the reasons given above, we must hold that the scheme embodied in Ss. 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid.
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materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State ofCourt has also repeatedly held that classification, might properly be made on territorial basis if that was germane to the purposes of the enactment. Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene Art.are unable to agree with this contention. Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time.To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations.It was held by this Court inBiswambhar Singh v. State of Orissa, AIR 1954 SC 139 at pp.(B) and inAmar Singhji v. State of Rajasthan, (S) AIR 1955 SC 504 at pp.(C) that a provision authorising the taking over of estates on different dates was not repugnant to Art. 14, and the principle of those decisions would apply to the present case as well. The contention that the impugned provisions are in contravention of Art. 14 must, therefore, beare unable to agree with this contention. The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable rent cannot be said to invade that right. The contention that the provision in S. 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord. A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair aboutcontention rests on an assumption for which there is no basis. The question whether a law is valid under Art. 19(5) can arise only when there is a violation of the fundamental right declared in Art. 19(1)(f), and if the right to hold property imports, as we have held it does, only a right to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the futureand that is concededit cannot be an encroachment as regards the past.A consideration, therefore, of the question whether a law under Art. 19 (5) should be regulatory, and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controvercy.8. The argument in support of the contention that S. 86 is repugant to Art. 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within Art. 31(2), even though it had the effect of reducing hisbir Singh v. Court of Wards, Ajmer, AIR 1953 SC 373 (F) was relied on, in support of this contention.There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a tenant."Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner, and that was final and not liable to be questioned in civil courts. It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under Art. 19(1)(f). and that it was not saved by Art. 19(5),But, in the present case, S. 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.There is no force in the contention that S. 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority. Discretion which is wide is not necessarily arbitrary.It was said that under S. 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under S. 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement. We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, and that it invades no fundamental rights of the landlord.10. For the reasons given above, we must hold that the scheme embodied in Ss. 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid.
|
State of Karnataka and Another Vs. H. Ganesh Kamath Etc | or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act.I | 0[ds]The Karnataka High Court in its judgment under appeal has held that: the impugned rule 5(2) is repugnant to the provisions o f sub-sections (7) and (8) of section 7 of the Act on the very same grounds upon which the original sub- rules (2) and (3) of Rule 5 were struck down by that Court in Cyril Lobos case. That there is a repugnancy between the said rule 5(2) and section 7 of the Act, is apparent on a plain reading of these provisions. The qualifications for obtaining a driving licence are laid down in sections 4 and 7 of the Act. Section 4 prescribes the qualification as to age. Under sub-section (8) of section 7 a person who is not disqualified under section 4 for driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act. | 0 | 3,731 | 1,278 | ### 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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or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act.I
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or obtaining a driving licence and who is not suffering from any disease or disability specified in the Second Schedule to the Act and has passed the test of competence to drive specified in the Third Schedule of the Act carried out in a vehicle of the type to which his application for a driving licence refers, is entitled, on payment of the prescribed fee, to be granted the driving licence applied for by him. It is pertinent to note that under section 7(7) the test of competence to drive is to be carried out in a vehicle of the type to which the application refers. Thus, what the Act contemplate s and requires is competence in driving the type of vehicle in respect of which the applicant is desirous of obtaining a driving licence. Further, so far as the test of competence set out in the Third Schedule to the Act is concerned, for the purpose of part I of the test, a person who passes the test in driving a heavy motor vehicle is also to be deemed to have passed the test in driving any medium motor vehicle or light motor vehicle. Thus, for the purpose of passing the test of competence to drive a heavy motor vehicle a person is not required to possess any experience in driving a medium motor vehicle. The requirement of the said sub-rule 5(2) that an applicant for a licence to drive a heavy motor vehicle should satisfy the concerned licensing authority that he has had at least two years experience in driving any medium motor vehicle necessarily implies that such applicant has possessed a licence to drive a medium motor vehicle for a period of at least two years. Thus, while from clause (a) of sub-section (7) of section 7 it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle, under the said sub-rule (2) of rule 5 he cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years which licence he could not obtain unless he has previously passed the test in driving a medium motor vehicle. Thus, the provisions of the said sub- rule (2) of rule 5 are obviously inconsistent with the provisions of sub-sections (7) and (8) of section 7. The sai d sub-rule does not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. Under sub- section (8) of section 7 on satisfying the conditions provided in sections 4 and 7 and on the payment of the requisite fee, the applicant becomes entitled to the grant of a driving licence. This right of an applicant for a licence to drive a heavy motor vehicle is sought to be whittled down by the said rule 5 (2) and that too by providing a condition contrary to the provisions of section 7(7) (a). Though the substituted clause (aa) inserted in sub-section (2) of section 21 confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. It is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is in consistent there with or repugnant thereto.On behalf of the Appellants reliance was placed upon the words "and who is not for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (1) of section 7 and upon the words "or is for the time being disqualified for holding or obtaining a driving licence" occurring in sub-section (8) of section 7. On the basis of these words it was submitted that the disqualification for holding or obtaining a driving licence would include not only disqualifications laid down in the Act but also a disqualification prescribed by a rule made by virtue of the power conferred by clause (aa) of section 21 (2). We are unable to accept this submission. Section s 15 to 17 of the Act prescribe the cases in which a person can be disqualified for holding or obtaining a driving licence. Section 18(1) provides that a person in respect of whom any disqualification order is made shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall case to be effective to such extent and during such period. The words in sub-sections (1) and (8) of section 7 relied upon by the Appellants, therefore, refer to a disqualification for holding or obtaining a driving licence incurred under sections 15 to 17 of the Act and not to any disqualification provided for in the rules. Had the intention of the Legislature been to provide also for a disqualification prescribed by the rules, sub-sections (1) and (8) of section 7 would have been suitably amended when clause (aa) was substituted for the old clause (aa) in section 21(2) by inserting in the said sub-sections the words "under this Act or the rules made thereunder" or by inserting other appropriate words.In our opinion, the Karnatka High Court was right in coming to the conclusion that sub-rule (2) inserted in rule 5 of the Karnataka Motor Vehicles Rules, 1963, by the said Notification No. HD 16 TMR 73 dated July 7, 1976 was ultra vires of the Act.
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Ram Krishan and Another Vs. State of Uttar Pradesh | FAZAL ALI, J. 1. The appellants have been convicted under Section 307/34 of IPC and sentenced to four years, under Section 324/34 of IPC to six months and under Section 323/34 of IPC to four months. All these sentences to run concurrently. The injuries were caused to the injured persons as a result of "fracus" between rival owners of a shop. The appellants were the tenants of that shop and chose to side their landlord, Munni Lal who was the ring leader of the whole group. The application of Munni Lal had been dismissed by this Court and special leave was granted only to the appellants. 2. It appears that on December 15, 1970 Manki and Sahdeo, who claim to be owner of the shop, closed the shop and went to rest. Sahdeo was sitting with his family in the upper storey. Soon thereafter, Munni Lal along with the appellants appeared on the scene and there was an altercation between the two, as a result of which the party of the appellants started assaulting Balkishun, Bajrangi, Rani Bindeshwari and Madan. Accused Munni Lal was armed with a sword; whereas the appellant Ganesh Prasad was armed with pharsa. Appellants Ram Brikesh and Ram Bhagat were only armed with lathis. A number of injuries were caused to the injured as a result of the quarrel. So far as merit of the case is concerned, we find that there is no case at all for our interference in this appeal by special leave. Mr. D. Mookerjee submitted that so far as the appellants Ram Brikesh, Ram Bhagat were concerned, there was a no legal evidence to substantiate the charge of Section 34 against them. Having regard to the fact that Ram Brikesh and Ram Bhagat, who were armed with lathis only and who did not take part in the assault, it cannot be said that they had any common intention to attempt to murder the injured persons. In our opinion, the contention of Mr. Mookerjee is well-founded and must prevail. It is true that Ram Brikesh and Ram Bhagat had accompanied the other accused but they had not participated in the assault and there is no clear evidence to show what part they took in the said assault. There, however, cannot be any doubt that they must be constructively liable for having shared the common intention of causing assault to the injured person. The conviction of Ram Brikesh and Ram Bhagat under Sections 324/34 and 323/34, therefore, must be maintained, but as there is no evidence of common intention of causing an offence under Section 307/34 of IPC they are acquitted of the charge under Section 307/34 of IPC. So far as Ganesh Prasad is concerned, he was undoubtedly armed with pharsa and in these circumstances we do not see any reason to interfere with the conviction as also the sentence passed against him. | 1[ds]2. It appears that on December 15, 1970 Manki and Sahdeo, who claim to be owner of the shop, closed the shop and went to rest. Sahdeo was sitting with his family in the upper storey. Soon thereafter, Munni Lal along with the appellants appeared on the scene and there was an altercation between the two, as a result of which the party of the appellants started assaulting Balkishun, Bajrangi, Rani Bindeshwari and Madan. Accused Munni Lal was armed with a sword; whereas the appellant Ganesh Prasad was armed with pharsa. Appellants Ram Brikesh and Ram Bhagat were only armed with lathis. A number of injuries were caused to the injured as a result of the quarrel. So far as merit of the case is concerned, we find that there is no case at all for our interference in this appeal by special leave. Mr. D. Mookerjee submitted that so far as the appellants Ram Brikesh, Ram Bhagat were concerned, there was a no legal evidence to substantiate the charge of Section 34 against them. Having regard to the fact that Ram Brikesh and Ram Bhagat, who were armed with lathis only and who did not take part in the assault, it cannot be said that they had any common intention to attempt to murder the injured persons. In our opinion, the contention of Mr. Mookerjee isd and must prevail. It is true that Ram Brikesh and Ram Bhagat had accompanied the other accused but they had not participated in the assault and there is no clear evidence to show what part they took in the said assault. There, however, cannot be any doubt that they must be constructively liable for having shared the common intention of causing assault to the injured person. The conviction of Ram Brikesh and Ram Bhagat under Sections 324/34 and 323/34, therefore, must be maintained, but as there is no evidence of common intention of causing an offence under Section 307/34 of IPC they are acquitted of the charge under Section 307/34 of IPC. So far as Ganesh Prasad is concerned, he was undoubtedly armed with pharsa and in these circumstances we do not see any reason to interfere with the conviction as also the sentence passed against him. | 1 | 530 | 415 | ### Instruction:
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FAZAL ALI, J. 1. The appellants have been convicted under Section 307/34 of IPC and sentenced to four years, under Section 324/34 of IPC to six months and under Section 323/34 of IPC to four months. All these sentences to run concurrently. The injuries were caused to the injured persons as a result of "fracus" between rival owners of a shop. The appellants were the tenants of that shop and chose to side their landlord, Munni Lal who was the ring leader of the whole group. The application of Munni Lal had been dismissed by this Court and special leave was granted only to the appellants. 2. It appears that on December 15, 1970 Manki and Sahdeo, who claim to be owner of the shop, closed the shop and went to rest. Sahdeo was sitting with his family in the upper storey. Soon thereafter, Munni Lal along with the appellants appeared on the scene and there was an altercation between the two, as a result of which the party of the appellants started assaulting Balkishun, Bajrangi, Rani Bindeshwari and Madan. Accused Munni Lal was armed with a sword; whereas the appellant Ganesh Prasad was armed with pharsa. Appellants Ram Brikesh and Ram Bhagat were only armed with lathis. A number of injuries were caused to the injured as a result of the quarrel. So far as merit of the case is concerned, we find that there is no case at all for our interference in this appeal by special leave. Mr. D. Mookerjee submitted that so far as the appellants Ram Brikesh, Ram Bhagat were concerned, there was a no legal evidence to substantiate the charge of Section 34 against them. Having regard to the fact that Ram Brikesh and Ram Bhagat, who were armed with lathis only and who did not take part in the assault, it cannot be said that they had any common intention to attempt to murder the injured persons. In our opinion, the contention of Mr. Mookerjee is well-founded and must prevail. It is true that Ram Brikesh and Ram Bhagat had accompanied the other accused but they had not participated in the assault and there is no clear evidence to show what part they took in the said assault. There, however, cannot be any doubt that they must be constructively liable for having shared the common intention of causing assault to the injured person. The conviction of Ram Brikesh and Ram Bhagat under Sections 324/34 and 323/34, therefore, must be maintained, but as there is no evidence of common intention of causing an offence under Section 307/34 of IPC they are acquitted of the charge under Section 307/34 of IPC. So far as Ganesh Prasad is concerned, he was undoubtedly armed with pharsa and in these circumstances we do not see any reason to interfere with the conviction as also the sentence passed against him.
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1
### Explanation:
2. It appears that on December 15, 1970 Manki and Sahdeo, who claim to be owner of the shop, closed the shop and went to rest. Sahdeo was sitting with his family in the upper storey. Soon thereafter, Munni Lal along with the appellants appeared on the scene and there was an altercation between the two, as a result of which the party of the appellants started assaulting Balkishun, Bajrangi, Rani Bindeshwari and Madan. Accused Munni Lal was armed with a sword; whereas the appellant Ganesh Prasad was armed with pharsa. Appellants Ram Brikesh and Ram Bhagat were only armed with lathis. A number of injuries were caused to the injured as a result of the quarrel. So far as merit of the case is concerned, we find that there is no case at all for our interference in this appeal by special leave. Mr. D. Mookerjee submitted that so far as the appellants Ram Brikesh, Ram Bhagat were concerned, there was a no legal evidence to substantiate the charge of Section 34 against them. Having regard to the fact that Ram Brikesh and Ram Bhagat, who were armed with lathis only and who did not take part in the assault, it cannot be said that they had any common intention to attempt to murder the injured persons. In our opinion, the contention of Mr. Mookerjee isd and must prevail. It is true that Ram Brikesh and Ram Bhagat had accompanied the other accused but they had not participated in the assault and there is no clear evidence to show what part they took in the said assault. There, however, cannot be any doubt that they must be constructively liable for having shared the common intention of causing assault to the injured person. The conviction of Ram Brikesh and Ram Bhagat under Sections 324/34 and 323/34, therefore, must be maintained, but as there is no evidence of common intention of causing an offence under Section 307/34 of IPC they are acquitted of the charge under Section 307/34 of IPC. So far as Ganesh Prasad is concerned, he was undoubtedly armed with pharsa and in these circumstances we do not see any reason to interfere with the conviction as also the sentence passed against him.
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Mohd. Mustafa Ali Khan Vs. Secretary, Department of Petroleum Central Government of India and Others | in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and other short-listed candidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewed vis-a-vis the candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment dated 31-1-96 issued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in June-July 1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed dated 24-5-1996 notwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time on 23-8-96. This time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. The affidavit-in-reply filed by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on the Nanded-Hyderabad Highway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constituted Nanded-Wagala Municipal Corporation. The affidavit-in-reply filed by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4. | 1[ds]We are not concerned with the allegations made against any individual, including the former Home Minister, Petroleum Minister, Members of the Oil Selection Board or any of the officials of respondent No. 3, or the Oil Company, by the petitioner and, in fact, the petitioner appears to have brought on record some statements regarding the allotments of dealership either for petrol or L.P.G. in favour of the family members or relations or the supporters of Shri S.B. Chavan, former Home Minister only for the purpose to prove the political proximity of respondent No. 4 which has allegedly influenced the selection. Respondent No. 4 has not denied his relationship with the family of Shri Shankarrao Chavan and has insisted that his selection by respondent No. 2 is in no way connected with this relationship or his proximity with the former Home Minister. We do not wish to consider any of these statements while examining the selection of respondent No. 4 for allotment of dealership and we are not influenced by any of these factors.Respondent No. 3 contends that once the applications found to be eligible, are furnished to the Oil Selection Board, it has no role to play in the selection process and after the Board submits a select panel pursuant to the selection process, the Oil Company is required to act accordingly and issue a letter of intent to the first candidate in merit, in the said select panel. If, however, the first allottee declines the offer or he is, for any reasons, found to be ineligible subsequently, the offer letter may be issued to the second applicant in the select panel. On issuing the letter of intent of such selected candidate at serial No. 1, he is required to comply with all the conditions and formalities including procurement of land and creating infrastructural facilities, within the period of 4 months and on completion of these requirements, the Oil Company appoints the said candidate as its dealer/distributor. Dealership agreement is subsequently executed between the Oil Company and the candidate. The Oil Selection Board had called 27 candidates for interview onat Mumbai and only 18 of them appeared.There is no dispute that at the relevant time, Shri Naresh Pugalia was a member of Parliament of the ruling party, i.e. Congress and, Shri Nautiyal represented the weaker sections of the society. As observed earlier, his wife was allotted a dealership from the discretionary quota of the Petroleum Minister at the relevant time and the said allotment was quashed and set aside by the Apex Court in the case of Common Cause a Registered Society v. Union of India (supra). The papers of selection procedure including the assessment sheets are placed before us. These papers consist of the consolidated assessment sheets and individual assessment sheets as made by the members. It is also evident that though all the three members participated in the interview process onShri Naresh Pugalia refused to handover mark sheets prepared by him in respect of the interviews held from 9 to 19th October, 1995 and, therefore, the panel of selection for dealership was prepared and signed by only two members, viz., Mr. Justice Parmeshar Dayal (Retd.) and Shri R.S. Nautiyal.It is pertinent to note at this stage that this fact of the select panel having been prepared on the basis of the only two members assessment, has not been stated either in thefiled on behalf of the respondent No. 2 or respondent No. 3 and, on the contrary, both these affidavits emphatically state that respondent No. 4 was selected by the Oil Selection Board as constituted and that the selection procedure was in order. If the Board consisted of three members, it is incumbent that the candidates are assessed by all the three members and their respective assessment is available on record. It is possible that the members may have different views in assessing the each candidate and all the three members assessment in respect of every factor is normally totalled altogether and averaged, so as to indicate the decision of the Board in such a selection. In the instant case, the third member Shri Naresh Pugalia had apparently refused to hand over the assessment sheets prepared by him and the select panel prepared and forwarded by the Oil Selection Board to respondent No. 3 Oil Company was only on the basis of the assessment made by only two members. This itself, without anything further, has vitiated the select panel and obviously the letter of allotment datedhad been issued by respondent No. 3 on such a vitiated selection and thus it was not a selection in the eyes of law.13. On perusal of the assessment record, as made available by the Oil Selection Board in respect of the interviews held from 9th to 19th October, 1995 at Mumbai, much is required to be said. However, we do not wish to comment upon these selections so far as they relate to other locations in Maharashtra and we confine our observations in respect of the interviews held on 19th October, 1995 and for the subject location which is Nanded.14. The second member Shri R.S. Nautiyal preferred not to write anything under the remarks column and the Chairman has noted some information under the said column in respect of most of the candidates interviewed onOne of the 18 candidates by name Shri Kinhalkar S.B. was not assessed because it was observed during the interview process that his father was already a dealer of B.P.C.L. Therefore, the assessment was in respect of only 17 candidates. As observed earlier, the assessment reproduced hereinabove, is in respect of the petitioner and other ten candidates who were either Graduates or Diploma holders, though Diploma holders have no preference as compared to graduates or graduates in Engineering as per the conditions stipulated in the advertisement that was released onThe assessment reproduced hereinabove, makes out a startling revelation regarding the marks given under each head. Shri Nautiyal assessed almost every candidates by giving total marks varying from 29 to 32; whereas for respondent No. 4 he gave 76 marks out of 100 marks. Under the personality, business ability and salesmanship column, he rated the above referred candidates by giving marks from 8 to 10 out of 30 marks; whereas, for respondent No. 4 he gave 24 marks inspite of the fact that he was not in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and othercandidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewedthe candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment datedissued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed datednotwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time onThis time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. Thefiled by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on theHighway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constitutedMunicipal Corporation. Thefiled by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4. | 1 | 5,602 | 2,244 | ### Instruction:
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in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and other short-listed candidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewed vis-a-vis the candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment dated 31-1-96 issued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in June-July 1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed dated 24-5-1996 notwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time on 23-8-96. This time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. The affidavit-in-reply filed by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on the Nanded-Hyderabad Highway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constituted Nanded-Wagala Municipal Corporation. The affidavit-in-reply filed by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.
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1
### Explanation:
of 30 marks; whereas, for respondent No. 4 he gave 24 marks inspite of the fact that he was not in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and othercandidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewedthe candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment datedissued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed datednotwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time onThis time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. Thefiled by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on theHighway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constitutedMunicipal Corporation. Thefiled by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.
|
Commissioner of Income Tax, Madras Vs. Managing Trustees, Nagore Durgha, Nagore | the said income in the hands of the managing trustee fell outside the scope of S. 41 of the Act. 7. There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in S. 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallies are brought under the section. A reasonable interpretation of the section is that all the categories of persons mentioned therein are deemed to receive the income on behalf of another person or persons or manage the same for his or their benefit. None of them has any beneficial interest in the income; he collects the income for the benefit of others. In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should be deemed to have received the income only on behalf of the Kasupangudars in definite shares. 8. The same conclusion will be reached even if the problem was approached from a different angle. In the well-known decision of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 315: (AIR 1922 PC 123 at p. 128), the inappropriateness of the use of the expression trustee to the manager of a Hindu or Mahommadan religious endowments was brought out. Therein their Lordships observed: Neither under the Hindu Law nor in the Mahommedan system is any property conveyed to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property be holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanjshin, or by any other name, is merely a manager. He is certainly not a trustee as understood in the English system. The Privy Council, in the context of a wakf property, reaffirmed the said observations, in Mt. Allah Rakhi v. Mohammad Abdur Rahim, 61 Ind App 50 : (AIR 1934 PC 77). The effect of the said decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests. The properties do not vest in them. They receive the income therefrom on behalf of both of them. After meeting the expenses of the Durgha they hold the balance on behalf of the kasupangudars and distribute the same in accordance with their shares. In this view, in terms of S. 41 of the Act the Nattamaigars are the managers of the properties on behalf of others and are entitled to receive the income therefrom on behalf of them. With the result, the income which they hold on behalf of the kasupangudars can be assessed only in their hands in the manner prescribed thereunder. But it is said that whatever may be the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattamaigars and therefore, they receive the income in their own right and not on behalf of the kasupangudars. A careful reading of the relevant part of the scheme does not countenance this argument. Clause 3 of the scheme, which is the material clause, reads: The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias and shrines connected therewith (mentioned in Schedule A hereunder) and all properties - movables and immovables - which belong to or have been or may hereafter be given, dedicated, endowed thereto, shall subject to the provisions thereof vest hereditarily in the eight trustees or Nattamaigars of the Durgha who shall constitute the Board of Trustees. Each trustee or Nattamaigar is entitled to hold office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custom prevailing in respect of such office in the Durgha. Under this clause the management and administration of the Nagore Durgha and its properties vest in the Nattamaigars. What vests in the Nattamaigars is not the properties of the Durgha but the management and administration thereof. Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of trust in derogation of Mohammadan law. We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars. 9. Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees. But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among the Board of Trustees. The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court. That apart, in the view, we have taken, namely, that the Nattamaigars are not interest in the English sense of the term, this question does not arise for consideration. | 0[ds]7. There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in S. 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallies are brought under the section. A reasonable interpretation of the section is that all the categories of persons mentioned therein are deemed to receive the income on behalf of another person or persons or manage the same for his or their benefit. None of them has any beneficial interest in the income; he collects the income for the benefit of others. In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should be deemed to have received the income only on behalf of the Kasupangudars in definite shares8. The same conclusion will be reached even if the problem was approached from a different angle. In the well-known decision of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 315: (AIR 1922 PC 123 at p. 128), the inappropriateness of the use of the expression trustee to the manager of a Hindu or Mahommadan religious endowments was brought out. Therein their Lordships observed:Neither under the Hindu Law nor in the Mahommedan system is any property conveyed to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property be holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanjshin, or by any other name, is merely a manager. He is certainly not a trustee as understood in the English systemThe Privy Council, in the context of a wakf property, reaffirmed the said observations, in Mt. Allah Rakhi v. Mohammad Abdur Rahim, 61 Ind App 50 : (AIR 1934 PC 77). The effect of the said decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests. The properties do not vest in them. They receive the income therefrom on behalf of both of them. After meeting the expenses of the Durgha they hold the balance on behalf of the kasupangudars and distribute the same in accordance with their shares. In this view, in terms of S. 41 of the Act the Nattamaigars are the managers of the properties on behalf of others and are entitled to receive the income therefrom on behalf of them. With the result, the income which they hold on behalf of the kasupangudars can be assessed only in their hands in the manner prescribed thereunder. But it is said that whatever may be the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattamaigars and therefore, they receive the income in their own right and not on behalf of the kasupangudars. A careful reading of the relevant part of the scheme does not countenance this argument. Clause 3 of the scheme, which is the material clause, reads:The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias and shrines connected therewith (mentioned in Schedule A hereunder) and all properties - movables and immovables - which belong to or have been or may hereafter be given, dedicated, endowed thereto, shall subject to the provisions thereof vest hereditarily in the eight trustees or Nattamaigars of the Durgha who shall constitute the Board of Trustees. Each trustee or Nattamaigar is entitled to hold office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custom prevailing in respect of such office in the DurghaUnder this clause the management and administration of the Nagore Durgha and its properties vest in the Nattamaigars. What vests in the Nattamaigars is not the properties of the Durgha but the management and administration thereof. Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of trust in derogation of Mohammadan law. We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars9. Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees. But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among the Board of Trustees. The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court. That apart, in the view, we have taken, namely, that the Nattamaigars are not interest in the English sense of the term, this question does not arise for consideration. | 0 | 2,176 | 1,067 | ### Instruction:
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the said income in the hands of the managing trustee fell outside the scope of S. 41 of the Act. 7. There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in S. 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallies are brought under the section. A reasonable interpretation of the section is that all the categories of persons mentioned therein are deemed to receive the income on behalf of another person or persons or manage the same for his or their benefit. None of them has any beneficial interest in the income; he collects the income for the benefit of others. In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should be deemed to have received the income only on behalf of the Kasupangudars in definite shares. 8. The same conclusion will be reached even if the problem was approached from a different angle. In the well-known decision of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 315: (AIR 1922 PC 123 at p. 128), the inappropriateness of the use of the expression trustee to the manager of a Hindu or Mahommadan religious endowments was brought out. Therein their Lordships observed: Neither under the Hindu Law nor in the Mahommedan system is any property conveyed to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property be holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanjshin, or by any other name, is merely a manager. He is certainly not a trustee as understood in the English system. The Privy Council, in the context of a wakf property, reaffirmed the said observations, in Mt. Allah Rakhi v. Mohammad Abdur Rahim, 61 Ind App 50 : (AIR 1934 PC 77). The effect of the said decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests. The properties do not vest in them. They receive the income therefrom on behalf of both of them. After meeting the expenses of the Durgha they hold the balance on behalf of the kasupangudars and distribute the same in accordance with their shares. In this view, in terms of S. 41 of the Act the Nattamaigars are the managers of the properties on behalf of others and are entitled to receive the income therefrom on behalf of them. With the result, the income which they hold on behalf of the kasupangudars can be assessed only in their hands in the manner prescribed thereunder. But it is said that whatever may be the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattamaigars and therefore, they receive the income in their own right and not on behalf of the kasupangudars. A careful reading of the relevant part of the scheme does not countenance this argument. Clause 3 of the scheme, which is the material clause, reads: The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias and shrines connected therewith (mentioned in Schedule A hereunder) and all properties - movables and immovables - which belong to or have been or may hereafter be given, dedicated, endowed thereto, shall subject to the provisions thereof vest hereditarily in the eight trustees or Nattamaigars of the Durgha who shall constitute the Board of Trustees. Each trustee or Nattamaigar is entitled to hold office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custom prevailing in respect of such office in the Durgha. Under this clause the management and administration of the Nagore Durgha and its properties vest in the Nattamaigars. What vests in the Nattamaigars is not the properties of the Durgha but the management and administration thereof. Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of trust in derogation of Mohammadan law. We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars. 9. Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees. But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among the Board of Trustees. The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court. That apart, in the view, we have taken, namely, that the Nattamaigars are not interest in the English sense of the term, this question does not arise for consideration.
### Response:
0
### Explanation:
7. There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in S. 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallies are brought under the section. A reasonable interpretation of the section is that all the categories of persons mentioned therein are deemed to receive the income on behalf of another person or persons or manage the same for his or their benefit. None of them has any beneficial interest in the income; he collects the income for the benefit of others. In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should be deemed to have received the income only on behalf of the Kasupangudars in definite shares8. The same conclusion will be reached even if the problem was approached from a different angle. In the well-known decision of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 315: (AIR 1922 PC 123 at p. 128), the inappropriateness of the use of the expression trustee to the manager of a Hindu or Mahommadan religious endowments was brought out. Therein their Lordships observed:Neither under the Hindu Law nor in the Mahommedan system is any property conveyed to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property be holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanjshin, or by any other name, is merely a manager. He is certainly not a trustee as understood in the English systemThe Privy Council, in the context of a wakf property, reaffirmed the said observations, in Mt. Allah Rakhi v. Mohammad Abdur Rahim, 61 Ind App 50 : (AIR 1934 PC 77). The effect of the said decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests. The properties do not vest in them. They receive the income therefrom on behalf of both of them. After meeting the expenses of the Durgha they hold the balance on behalf of the kasupangudars and distribute the same in accordance with their shares. In this view, in terms of S. 41 of the Act the Nattamaigars are the managers of the properties on behalf of others and are entitled to receive the income therefrom on behalf of them. With the result, the income which they hold on behalf of the kasupangudars can be assessed only in their hands in the manner prescribed thereunder. But it is said that whatever may be the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattamaigars and therefore, they receive the income in their own right and not on behalf of the kasupangudars. A careful reading of the relevant part of the scheme does not countenance this argument. Clause 3 of the scheme, which is the material clause, reads:The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias and shrines connected therewith (mentioned in Schedule A hereunder) and all properties - movables and immovables - which belong to or have been or may hereafter be given, dedicated, endowed thereto, shall subject to the provisions thereof vest hereditarily in the eight trustees or Nattamaigars of the Durgha who shall constitute the Board of Trustees. Each trustee or Nattamaigar is entitled to hold office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custom prevailing in respect of such office in the DurghaUnder this clause the management and administration of the Nagore Durgha and its properties vest in the Nattamaigars. What vests in the Nattamaigars is not the properties of the Durgha but the management and administration thereof. Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of trust in derogation of Mohammadan law. We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars9. Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees. But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among the Board of Trustees. The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court. That apart, in the view, we have taken, namely, that the Nattamaigars are not interest in the English sense of the term, this question does not arise for consideration.
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Kaloo Vs. State of Uttar Pradesh | Sikri, J.1. Leave to appeal in this case was limited to the question of sentence. The High Court, agreeing with the learned Sessions Judge, confirmed the conviction and sentence of death. The only question before us is whether the appellant should not be sentenced to imprisonment for life.2. The relevant facts for the determination of this point are as follows : The appellant was tried, along with Allah Bux, for murdering his wife, Jaddoo. According to the prosecution both Allah Bux and the appellant committed the murder but the High Court acquitted Allah Bux.3. The appellant and his wife lived in one room on the ground floor of the house situated in Gulaothi town in police circle Gulaothi, district Bulandshahr. Its owner, Asif, P.W. 1. lived on the first floor with his family. The murder of Jaddoo, was committed at about 11-30 a.m. on June 18, 1968. The post-mortem examination revealed that she died of two incised wounds, one on the left side and the other on the front of her neck. It appears that according to the prosecution there was illicit intimacy between the deceased and Allan Bux due to which the appellant was often heard quarreling with the deceased and Allah Bux. On the day of the occurrence at about 11-30 a.m. Asif, P.W. 1, on hearing shrieks of Jaddoo ran down-stairs and saw the appellant bending over the deceased and cutting her neck with a butchers holding her hands. Another witness, Rahmat, also came down the staircase hearing the shouts of the deceased and witnessed the incident. As we have already mentioned, the High Court has given the benefit of doubt to Allah Bux.4. There is no evidence as to the origin of the quarrel. Something must have happened between the appellant and the deceased and Allah Bux, which infuriated or led the appellant to commit the murder. None of the eye witnesses were present at the origin of the quarrel and it seems to us that in view of the intimacy between Allah Bux and the deceased it may be that something was said or happened which led the appellant to commit the murder. The High Court has not examined this aspect and we are of the view that in view of circumstances abovementioned the extreme penalty should not be inflicted on the appellant. | 1[ds]As we have already mentioned, the High Court has given the benefit of doubt to Allah Bux.4. There is no evidence as to the origin of the quarrel. Something must have happened between the appellant and the deceased and Allah Bux, which infuriated or led the appellant to commit the murder. None of the eye witnesses were present at the origin of the quarrel and it seems to us that in view of the intimacy between Allah Bux and the deceased it may be that something was said or happened which led the appellant to commit the murder. The High Court has not examined this aspect and we are of the view that in view of circumstances abovementioned the extreme penalty should not be inflicted on the appellant. | 1 | 426 | 139 | ### Instruction:
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Sikri, J.1. Leave to appeal in this case was limited to the question of sentence. The High Court, agreeing with the learned Sessions Judge, confirmed the conviction and sentence of death. The only question before us is whether the appellant should not be sentenced to imprisonment for life.2. The relevant facts for the determination of this point are as follows : The appellant was tried, along with Allah Bux, for murdering his wife, Jaddoo. According to the prosecution both Allah Bux and the appellant committed the murder but the High Court acquitted Allah Bux.3. The appellant and his wife lived in one room on the ground floor of the house situated in Gulaothi town in police circle Gulaothi, district Bulandshahr. Its owner, Asif, P.W. 1. lived on the first floor with his family. The murder of Jaddoo, was committed at about 11-30 a.m. on June 18, 1968. The post-mortem examination revealed that she died of two incised wounds, one on the left side and the other on the front of her neck. It appears that according to the prosecution there was illicit intimacy between the deceased and Allan Bux due to which the appellant was often heard quarreling with the deceased and Allah Bux. On the day of the occurrence at about 11-30 a.m. Asif, P.W. 1, on hearing shrieks of Jaddoo ran down-stairs and saw the appellant bending over the deceased and cutting her neck with a butchers holding her hands. Another witness, Rahmat, also came down the staircase hearing the shouts of the deceased and witnessed the incident. As we have already mentioned, the High Court has given the benefit of doubt to Allah Bux.4. There is no evidence as to the origin of the quarrel. Something must have happened between the appellant and the deceased and Allah Bux, which infuriated or led the appellant to commit the murder. None of the eye witnesses were present at the origin of the quarrel and it seems to us that in view of the intimacy between Allah Bux and the deceased it may be that something was said or happened which led the appellant to commit the murder. The High Court has not examined this aspect and we are of the view that in view of circumstances abovementioned the extreme penalty should not be inflicted on the appellant.
### Response:
1
### Explanation:
As we have already mentioned, the High Court has given the benefit of doubt to Allah Bux.4. There is no evidence as to the origin of the quarrel. Something must have happened between the appellant and the deceased and Allah Bux, which infuriated or led the appellant to commit the murder. None of the eye witnesses were present at the origin of the quarrel and it seems to us that in view of the intimacy between Allah Bux and the deceased it may be that something was said or happened which led the appellant to commit the murder. The High Court has not examined this aspect and we are of the view that in view of circumstances abovementioned the extreme penalty should not be inflicted on the appellant.
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THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA & ORS Vs. SHAJI POULOSE & ORS | dated 13.01.1989 does not take away the right of a Chartered Accountant to carry on profession, against which judgment, a Special Leave Petition No.21988 of 1995 was filed, in which leave was granted but Civil Appeal was dismissed as withdrawn by order dated 04.05.1999. Madras High Court vide its judgment dated 13.07.1998 had allowed the Writ Petition No.5925 of 1989 – K. Bhagavatheeswaran Vs. Vs. Institute of Chartered Accountants of India and Ors., which judgment was also confirmed by the Division Bench in a writ appeal. 11. The Chartered Accountants Act, 1949 was amended by the Parliament by the Chartered Accountants (Amendment) Act, 2006, after which amendment, the erstwhile Notifications were superseded by Guidelines dated 08.08.2008. After the above Guidelines, this Court by order dated 01.04.2013 dismissed the Civil Appeal Nos.7208-7209 of 2005 having become infructuous, which order was to the following effect:- In view of the above, we do not propose to hear the appeals on merit and the same are dismissed as having become infructuous. However, in case any member is aggrieved of the existing guidelines and files a representation before the appellant, the appellant shall consider it and pass appropriate order, and if any member is aggrieved thereof whether he has made representation or not, would have right to challenge it before the appropriate forum. 12. After issuance of the Guidelines dated 08.08.2008, various writ petitions have been filed in different High Courts, details of various writ petitions as given in the transfer petition are as follows:- (1) W.P. (C) No.25662/2016 titled as Shaji Poulose vs. The Institute of Chartered Accountants of India & Ors. Pending before the Honble High Court of Judicature of Kerala at Ernakulam; (2) W.P. (C) No.12963/2017 titled as T.R. Mohan Das vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (3) W.P. (C) No.19026/2017 titled as E. Hrishikesan vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (4) W.P. Nos.17956 to 17958/2017 titled as Mr. R. Murlidharan vs. The Comptroller & Auditor General of India & Ors. pending before the Honble High Court of Judicature at Madras; (5) W.P. NO.22771/2017 titled as Radha Kanta Das vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature at Calcutta; (6) W.P. (C) No.12273/2019 titled as C. Suresh Kumar vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (7) W.P. No.19162/2019 titled as Ms. V. Gayathri Devi vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature at Madras; (8) W.P. No.18124/2019 titled as Kamalesh Mitra vs. The Institute of Chartered Accountants of India & Ors. pending bolero the Honble High Court at Calcutta, and (9) W.P. No.18590/2019 titled as Pralay Chakraborty vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court at Calcutta. 13. In various writ petitions filed in different High Courts apart from challenging the guidelines dated 08.08.2008, disciplinary proceedings initiated against the writ petitioner for violation of the guidelines dated 08.08.2008 were also challenged. For example, in writ petition No.25662 of 2016, Shaji Poulose versus Institute of Chartered Accountant of India and others, the guidelines dated 08.08.2008 as well as communication dated 28.03.2015, 23.06.2016 and 13.07.2016 were under challenge. The High Court issued notice and stayed the disciplinary proceeding against the writ petitioner therein. 14. Learned counsel for the respondents have also relied on the judgment of this Court in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another, (2007) 15 SCC 649, in which case the Transfer petition was filed in this Court by the Institute of Chartered Accountants of India for transferring writ petitions filed in different High Courts challenging Constitutional validity of paragraph 33 of Accounting Standard 22 framed by Institute of Chartered Accountant of India. This Court allowed the Transfer petition and directed all the writ petitions to be heard by Calcutta High Court. Learned counsel for the respondent submits that this Court may consider transferring all the writ petitions to any one High Court in the present matter also. 15. The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. As noted above, with respect to the cap on the number of audits, there are conflicting judgments of different High Courts taking different views on the similar guidelines. Further, this Courts judgment in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another (supra), transferring the writ petition to one High Court i.e. Calcutta High Court does not preclude the consideration of prayer of the petitioner for transferring the writ petitions to this Court in present matter. 16. The guidelines which are impugned in the High Court and consequent disciplinary proceedings initiated against various chartered accountants throughout the country is an issue of public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits. We are satisfied that to settle the law and to clear the uncertainty among tax professionals and citizens, it is appropriate that this Court may transfer the writ petition, to authoritatively pronounce the law on the subject. 17. We, however, find substance in the submissions made by learned counsel for the respondents-writ petitioners that the interim orders operating in different writ petitions which are sought to be transferred should be allowed to be continued till this Court considers the matter and passes any other order. | 1[ds]13. In various writ petitions filed in different High Courts apart from challenging the guidelines dated 08.08.2008, disciplinary proceedings initiated against the writ petitioner for violation of the guidelines dated 08.08.2008 were also challenged. For example, in writ petition No.25662 of 2016, Shaji Poulose versus Institute of Chartered Accountant of India and others, the guidelines dated 08.08.2008 as well as communication dated 28.03.2015, 23.06.2016 and 13.07.2016 were under challenge. The High Court issued notice and stayed the disciplinary proceeding against the writ petitioner therein.15. The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. As noted above, with respect to the cap on the number of audits, there are conflicting judgments of different High Courts taking different views on the similar guidelines. Further, this Courts judgment in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another (supra), transferring the writ petition to one High Court i.e. Calcutta High Court does not preclude the consideration of prayer of the petitioner for transferring the writ petitions to this Court in present matter.16. The guidelines which are impugned in the High Court and consequent disciplinary proceedings initiated against various chartered accountants throughout the country is an issue of public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits. We are satisfied that to settle the law and to clear the uncertainty among tax professionals and citizens, it is appropriate that this Court may transfer the writ petition, to authoritatively pronounce the law on the subject.17. We, however, find substance in the submissions made by learned counsel for the respondents-writ petitioners that the interim orders operating in different writ petitions which are sought to be transferred should be allowed to be continued till this Court considers the matter and passes any other order. | 1 | 2,422 | 395 | ### 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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dated 13.01.1989 does not take away the right of a Chartered Accountant to carry on profession, against which judgment, a Special Leave Petition No.21988 of 1995 was filed, in which leave was granted but Civil Appeal was dismissed as withdrawn by order dated 04.05.1999. Madras High Court vide its judgment dated 13.07.1998 had allowed the Writ Petition No.5925 of 1989 – K. Bhagavatheeswaran Vs. Vs. Institute of Chartered Accountants of India and Ors., which judgment was also confirmed by the Division Bench in a writ appeal. 11. The Chartered Accountants Act, 1949 was amended by the Parliament by the Chartered Accountants (Amendment) Act, 2006, after which amendment, the erstwhile Notifications were superseded by Guidelines dated 08.08.2008. After the above Guidelines, this Court by order dated 01.04.2013 dismissed the Civil Appeal Nos.7208-7209 of 2005 having become infructuous, which order was to the following effect:- In view of the above, we do not propose to hear the appeals on merit and the same are dismissed as having become infructuous. However, in case any member is aggrieved of the existing guidelines and files a representation before the appellant, the appellant shall consider it and pass appropriate order, and if any member is aggrieved thereof whether he has made representation or not, would have right to challenge it before the appropriate forum. 12. After issuance of the Guidelines dated 08.08.2008, various writ petitions have been filed in different High Courts, details of various writ petitions as given in the transfer petition are as follows:- (1) W.P. (C) No.25662/2016 titled as Shaji Poulose vs. The Institute of Chartered Accountants of India & Ors. Pending before the Honble High Court of Judicature of Kerala at Ernakulam; (2) W.P. (C) No.12963/2017 titled as T.R. Mohan Das vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (3) W.P. (C) No.19026/2017 titled as E. Hrishikesan vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (4) W.P. Nos.17956 to 17958/2017 titled as Mr. R. Murlidharan vs. The Comptroller & Auditor General of India & Ors. pending before the Honble High Court of Judicature at Madras; (5) W.P. NO.22771/2017 titled as Radha Kanta Das vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature at Calcutta; (6) W.P. (C) No.12273/2019 titled as C. Suresh Kumar vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature of Kerala at Ernakulam; (7) W.P. No.19162/2019 titled as Ms. V. Gayathri Devi vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court of Judicature at Madras; (8) W.P. No.18124/2019 titled as Kamalesh Mitra vs. The Institute of Chartered Accountants of India & Ors. pending bolero the Honble High Court at Calcutta, and (9) W.P. No.18590/2019 titled as Pralay Chakraborty vs. The Institute of Chartered Accountants of India & Ors. pending before the Honble High Court at Calcutta. 13. In various writ petitions filed in different High Courts apart from challenging the guidelines dated 08.08.2008, disciplinary proceedings initiated against the writ petitioner for violation of the guidelines dated 08.08.2008 were also challenged. For example, in writ petition No.25662 of 2016, Shaji Poulose versus Institute of Chartered Accountant of India and others, the guidelines dated 08.08.2008 as well as communication dated 28.03.2015, 23.06.2016 and 13.07.2016 were under challenge. The High Court issued notice and stayed the disciplinary proceeding against the writ petitioner therein. 14. Learned counsel for the respondents have also relied on the judgment of this Court in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another, (2007) 15 SCC 649, in which case the Transfer petition was filed in this Court by the Institute of Chartered Accountants of India for transferring writ petitions filed in different High Courts challenging Constitutional validity of paragraph 33 of Accounting Standard 22 framed by Institute of Chartered Accountant of India. This Court allowed the Transfer petition and directed all the writ petitions to be heard by Calcutta High Court. Learned counsel for the respondent submits that this Court may consider transferring all the writ petitions to any one High Court in the present matter also. 15. The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. As noted above, with respect to the cap on the number of audits, there are conflicting judgments of different High Courts taking different views on the similar guidelines. Further, this Courts judgment in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another (supra), transferring the writ petition to one High Court i.e. Calcutta High Court does not preclude the consideration of prayer of the petitioner for transferring the writ petitions to this Court in present matter. 16. The guidelines which are impugned in the High Court and consequent disciplinary proceedings initiated against various chartered accountants throughout the country is an issue of public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits. We are satisfied that to settle the law and to clear the uncertainty among tax professionals and citizens, it is appropriate that this Court may transfer the writ petition, to authoritatively pronounce the law on the subject. 17. We, however, find substance in the submissions made by learned counsel for the respondents-writ petitioners that the interim orders operating in different writ petitions which are sought to be transferred should be allowed to be continued till this Court considers the matter and passes any other order.
### Response:
1
### Explanation:
13. In various writ petitions filed in different High Courts apart from challenging the guidelines dated 08.08.2008, disciplinary proceedings initiated against the writ petitioner for violation of the guidelines dated 08.08.2008 were also challenged. For example, in writ petition No.25662 of 2016, Shaji Poulose versus Institute of Chartered Accountant of India and others, the guidelines dated 08.08.2008 as well as communication dated 28.03.2015, 23.06.2016 and 13.07.2016 were under challenge. The High Court issued notice and stayed the disciplinary proceeding against the writ petitioner therein.15. The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. As noted above, with respect to the cap on the number of audits, there are conflicting judgments of different High Courts taking different views on the similar guidelines. Further, this Courts judgment in Institute of Chartered Accountants of India versus Southern Petrochemical Industries Corporation Limited and another (supra), transferring the writ petition to one High Court i.e. Calcutta High Court does not preclude the consideration of prayer of the petitioner for transferring the writ petitions to this Court in present matter.16. The guidelines which are impugned in the High Court and consequent disciplinary proceedings initiated against various chartered accountants throughout the country is an issue of public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits. We are satisfied that to settle the law and to clear the uncertainty among tax professionals and citizens, it is appropriate that this Court may transfer the writ petition, to authoritatively pronounce the law on the subject.17. We, however, find substance in the submissions made by learned counsel for the respondents-writ petitioners that the interim orders operating in different writ petitions which are sought to be transferred should be allowed to be continued till this Court considers the matter and passes any other order.
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Ram Charan Das Vs. Girjanandini Devi And Ors | deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. 11. The final contention of Mr. Sinha is based upon S. 37(a) of the U. P. Court of Wards Act, 1912. The relevant portion of this provision runs thus:"A ward shall not be competent- (a) to transfer or create any charge on, or interest in, any part of his property which is under the superintendence of the Court of Wards, or to enter into any contract which may involve him in pecuniary liability;................................" Here the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of S. 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain, ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhbati, 53 Ind App 11: (AIR 1926 PC 2 ).In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibis case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden, 46 Ind. App 72: (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender S. 60 of the Bihar Court of Wards Act upon which reliance was placed in that case would not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233: (AIR 1921 PC 107), in support of the appellants contention that the transaction was valid. While distinguishing this case the Privy Council observed:"In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in 46 Ind App 72: (AIR 1918 PC 196)." We may further point out that this decision does not refer to their decisions in AIR 1914 PC 44 and ILR 33 All 356 (PC), and it cannot be assumed that they intended to depart from their earlier view. 12. Apart from that it may be pointed out that the two suits which were then pending were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not entitled to press in aid the provisions of S. 37(a) of the U. P. Court of Wards Act. | 0[ds]In our case, however, there is fortunately only one transaction and we have definite evidence to show that there were disputes amongst the members of the family and it was avowedly for settling them that the transaction was entered into. Further we have material to show that all the persons who can be said to be interested in the property were joined as parties to the transaction. In that sense this case is stronger than the one which the Privy Council had to consider. We have therefore no hesitation in holding that the plaintiff who has taken benefit under the transaction is not now entitled to turn round and say that that transaction was of a kind which Kadma Kuar could not enter into and was therefore invalid. Moreover acting on the terms of that document Gopinath paid monies to the Court of Wards for obtaining release from its management of the properties which were allotted to him. The rule of estoppels embodied in S. 115 ofthe Indian Evidence Act, 1872 would, therefore, shut out such pleas of the plaintiff. Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagoudas case, 54 Ind App 396: (AIR 1927 PC 227 ), of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafterHere the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of S. 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain, ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhbati, 53 Ind App 11: (AIR 1926 PC 2 ).In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibis case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden, 46 Ind. App 72: (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender S. 60 of the Bihar Court of Wards Act upon which reliance was placed in that case would not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233: (AIR 1921 PC 107), in support of the appellants contention that the transaction was valid. While distinguishing this case the Privy Council observed:"In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in 46 Ind App 72: (AIR 1918 PC 196)We may further point out that this decision does not refer to their decisions in AIR 1914 PC 44 and ILR 33 All 356 (PC), and it cannot be assumed that they intended to depart from their earlier view12. Apart from that it may be pointed out that the two suits which were then pending were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not entitled to press in aid the provisions of S. 37(a) of the U. P. Court of Wards Act. | 0 | 5,493 | 1,349 | ### Instruction:
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deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. 11. The final contention of Mr. Sinha is based upon S. 37(a) of the U. P. Court of Wards Act, 1912. The relevant portion of this provision runs thus:"A ward shall not be competent- (a) to transfer or create any charge on, or interest in, any part of his property which is under the superintendence of the Court of Wards, or to enter into any contract which may involve him in pecuniary liability;................................" Here the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of S. 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain, ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhbati, 53 Ind App 11: (AIR 1926 PC 2 ).In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibis case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden, 46 Ind. App 72: (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender S. 60 of the Bihar Court of Wards Act upon which reliance was placed in that case would not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233: (AIR 1921 PC 107), in support of the appellants contention that the transaction was valid. While distinguishing this case the Privy Council observed:"In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in 46 Ind App 72: (AIR 1918 PC 196)." We may further point out that this decision does not refer to their decisions in AIR 1914 PC 44 and ILR 33 All 356 (PC), and it cannot be assumed that they intended to depart from their earlier view. 12. Apart from that it may be pointed out that the two suits which were then pending were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not entitled to press in aid the provisions of S. 37(a) of the U. P. Court of Wards Act.
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a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagoudas case, 54 Ind App 396: (AIR 1927 PC 227 ), of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafterHere the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of S. 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain, ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhbati, 53 Ind App 11: (AIR 1926 PC 2 ).In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibis case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden, 46 Ind. App 72: (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender S. 60 of the Bihar Court of Wards Act upon which reliance was placed in that case would not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233: (AIR 1921 PC 107), in support of the appellants contention that the transaction was valid. While distinguishing this case the Privy Council observed:"In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in 46 Ind App 72: (AIR 1918 PC 196)We may further point out that this decision does not refer to their decisions in AIR 1914 PC 44 and ILR 33 All 356 (PC), and it cannot be assumed that they intended to depart from their earlier view12. Apart from that it may be pointed out that the two suits which were then pending were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not entitled to press in aid the provisions of S. 37(a) of the U. P. Court of Wards Act.
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Sri Venkateswara Rice, Ginning & Groundnutoil Mill Contract Vs. State Of Andhra Pradesh & Ors | contained in Section 5 (the charging section), the sales or purchases of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase specified against each in the Third Schedule on his turnover of such sales or purchases for each year irrespective of the quantum of his turnover in such goods: and the tax shall be assessed, levied and collected in such manner as may be prescribed. Here again we need not refer to that part of Section 6 which deals with inter-state trade. The only other provision which we have to notice is item 6 of the Third Schedule which deals with groundnut. The point of levy in respect of that item is when purchased by a miller other than a decorticating miller in the State, at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State. The rate of tax is 2 paise in the rupee. 6. None of the assessees before us is a decorticating miller. Hence we have to see whether the purchases of groundnut made by them did not become taxable as soon as they made those purchases. It is now well settled that even under the Sales Tax laws, the charge in respect of a sale or purchase becomes effective as soon as the sale in the case of sales tax and purchase in the case of purchase tax is made, though the liability of the dealer can be computed only at the end of the year.The incurring of the charge is one thing and its computation is a totally different thing. Hence the turnover relating to the purchases with which we are concerned in these appeals became charged with the liability to pay tax as soon as those purchases were made by the assessee-millers. To restate the position, whenever, a miller purchases groundnut, the turnover relating to that purchase becomes exigible to tax subject to such exemptions as may be given under Act. This means that as soon as a first miller purchases groundnut, the turnover relating to that purchase, the question of exemption apart, becomes liable to tax. This is also the view taken by the High Court. 7. It was urged on behalf of the assessees that if we place that interpretation then even the turnovers relating to subsequent purchases of the same groundnut made by the other millers would become exigible to tax despite the fact that only a single point purchase tax is leviable under the Act. It was further urged that we should not read into item 6 of the Third Schedule the word first before the word miller under column 2 thereof.We see no merit in these contentions. Quite clearly in view of Section 14 and Section 15 of the Central Sales Tax Act and Section 6 of the Act, purchase of groundnut can be taxed only at one stage. Once a particular quantity of groundnut has been subjected to payment of tax, the States power to tax in respect of those goods gets exhausted and any further dealing in those goods cannot be brought to tax. This is clear from the scheme of the Act. There was no need for the legislature to say when purchased by first miller in column 2 of item 6 of the Third Schedule, because from the language employed therein, it is clear that first purchase becomes exigible to tax and in view of Section 6 of the Act, the subsequent purchases of the same goods cannot be subjected to tax.Therefore there is no question of adding any word into that item, as contended by Mr. M. C. Chagla on behalf of the assessees. 8. The next argument advanced on behalf of the assessees is that in the case of some of the assessees a part of the groundnut purchased had been sold to other millers; hence in those cases, the assessees must be taxed only in respect of that part of the turnover which relates to groundnut which they had crushed for extracting oil and in the case of remaining part, it is the last dealer who purchased the same should be taxed. This contention again is unacceptable. As mentioned earlier the event which attracted tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with that groundnut in any other manner. We have earlier mentioned that very act of purchase by a miller attracts the liability to pay tax under Section 5 read with Schedule 3 item 6. His subsequent dealings in those goods becomes irrelevant. In none of the cases before us it was shown that any of the assessees had purchased groundnut with a view to sell them. Hence we need not go into the question as to what would be the position in law where a miller purchases some groundnut for milling and the rest for sale. 9. Our approach to the question before us is similar to that adopted by the High Court in the decision under appeal. We are in entire agreement with the reasoning of the High Court. But our attention was invited to a latter decision of the same High Court in M. Madar Khan and Co. v. Asst. Commr. (Commercial Taxes) Anantpur, 27 STC 18 = (AIR 1971 Andh Pra 138) which took a view contrary to that taken in the decision under appeal. It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision. | 0[ds]Quite clearly in view of Section 14 and Section 15 of the Central Sales Tax Act and Section 6 of the Act, purchase of groundnut can be taxed only at one stage. Once a particular quantity of groundnut has been subjected to payment of tax, the States power to tax in respect of those goods gets exhausted and any further dealing in those goods cannot be brought to tax. This is clear from the scheme of the Act. There was no need for the legislature to say when purchased by first miller in column 2 of item 6 of the Third Schedule, because from the language employed therein, it is clear that first purchase becomes exigible to tax and in view of Section 6 of the Act, the subsequent purchases of the same goods cannot be subjected to tax.Therefore there is no question of adding any word into that item, as contended by Mr. M. C. Chagla on behalf of the assesseesAs mentioned earlier the event which attracted tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with that groundnut in any other manner. We have earlier mentioned that very act of purchase by a miller attracts the liability to pay tax under Section 5 read with Schedule 3 item 6. His subsequent dealings in those goods becomes irrelevant. In none of the cases before us it was shown that any of the assessees had purchased groundnut with a view to sell them. Hence we need not go into the question as to what would be the position in law where a miller purchases some groundnut for milling and the rest for sale9. Our approach to the question before us is similar to that adopted by the High Court in the decision under appeal. We are in entire agreement with the reasoning of the High Court. But our attention was invited to a latter decision of the same High Court in M. Madar Khan and Co. v. Asst. Commr. (Commercial Taxes) Anantpur, 27 STC 18 = (AIR 1971 Andh Pra 138) which took a view contrary to that taken in the decision under appeal. It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision4. The groundnut is one of the declared goods to be of special importance ine trade or commerce under Section 14 ofthe Central Sales Tax Act, 1956 and therefore in view of Section 15 (a) of that Act, the State is not empowered to levy purchase tax of more than three per cent. On the turnover in respect of those purchases and further the tax cannot be levied at more than one stage. Herein we are not concerned with5. Now turning to the Act, Section 2 (f) defines declared goods as meaning goods declared under Section 14 ofthe Central Sales Tax Act, 1956 (Central Act 74 of 1956) to be of special importance ine trade or commerce. In compliance with the mandate of Sections 14 and 15 ofthe Central Sales Tax Act, 1956, Section 6 of the Act provides that notwithstanding anything contained in Section 5 (the charging section), the sales or purchases of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase specified against each in the Third Schedule on his turnover of such sales or purchases for each year irrespective of the quantum of his turnover in such goods: and the tax shall be assessed, levied and collected in such manner as may be prescribed. Here again we need not refer to that part of Section 6 which deals withe trade. The only other provision which we have to notice is item 6 of the Third Schedule which deals with groundnut. The point of levy in respect of that item is when purchased by a miller other than a decorticating miller in the State, at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State. The rate of tax is 2 paise in the rupeeIt is now well settled that even under the Sales Tax laws, the charge in respect of a sale or purchase becomes effective as soon as the sale in the case of sales tax and purchase in the case of purchase tax is made, though the liability of the dealer can be computed only at the end of the year.The incurring of the charge is one thing and its computation is a totally different thing. Hence the turnover relating to the purchases with which we are concerned in these appeals became charged with the liability to pay tax as soon as those purchases were made by the. To restate the position, whenever, a miller purchases groundnut, the turnover relating to that purchase becomes exigible to tax subject to such exemptions as may be given under Act. This means that as soon as a first miller purchases groundnut, the turnover relating to that purchase, the question of exemption apart, becomes liable to tax. This is also the view taken by the High Court. | 0 | 1,555 | 1,006 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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contained in Section 5 (the charging section), the sales or purchases of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase specified against each in the Third Schedule on his turnover of such sales or purchases for each year irrespective of the quantum of his turnover in such goods: and the tax shall be assessed, levied and collected in such manner as may be prescribed. Here again we need not refer to that part of Section 6 which deals with inter-state trade. The only other provision which we have to notice is item 6 of the Third Schedule which deals with groundnut. The point of levy in respect of that item is when purchased by a miller other than a decorticating miller in the State, at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State. The rate of tax is 2 paise in the rupee. 6. None of the assessees before us is a decorticating miller. Hence we have to see whether the purchases of groundnut made by them did not become taxable as soon as they made those purchases. It is now well settled that even under the Sales Tax laws, the charge in respect of a sale or purchase becomes effective as soon as the sale in the case of sales tax and purchase in the case of purchase tax is made, though the liability of the dealer can be computed only at the end of the year.The incurring of the charge is one thing and its computation is a totally different thing. Hence the turnover relating to the purchases with which we are concerned in these appeals became charged with the liability to pay tax as soon as those purchases were made by the assessee-millers. To restate the position, whenever, a miller purchases groundnut, the turnover relating to that purchase becomes exigible to tax subject to such exemptions as may be given under Act. This means that as soon as a first miller purchases groundnut, the turnover relating to that purchase, the question of exemption apart, becomes liable to tax. This is also the view taken by the High Court. 7. It was urged on behalf of the assessees that if we place that interpretation then even the turnovers relating to subsequent purchases of the same groundnut made by the other millers would become exigible to tax despite the fact that only a single point purchase tax is leviable under the Act. It was further urged that we should not read into item 6 of the Third Schedule the word first before the word miller under column 2 thereof.We see no merit in these contentions. Quite clearly in view of Section 14 and Section 15 of the Central Sales Tax Act and Section 6 of the Act, purchase of groundnut can be taxed only at one stage. Once a particular quantity of groundnut has been subjected to payment of tax, the States power to tax in respect of those goods gets exhausted and any further dealing in those goods cannot be brought to tax. This is clear from the scheme of the Act. There was no need for the legislature to say when purchased by first miller in column 2 of item 6 of the Third Schedule, because from the language employed therein, it is clear that first purchase becomes exigible to tax and in view of Section 6 of the Act, the subsequent purchases of the same goods cannot be subjected to tax.Therefore there is no question of adding any word into that item, as contended by Mr. M. C. Chagla on behalf of the assessees. 8. The next argument advanced on behalf of the assessees is that in the case of some of the assessees a part of the groundnut purchased had been sold to other millers; hence in those cases, the assessees must be taxed only in respect of that part of the turnover which relates to groundnut which they had crushed for extracting oil and in the case of remaining part, it is the last dealer who purchased the same should be taxed. This contention again is unacceptable. As mentioned earlier the event which attracted tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with that groundnut in any other manner. We have earlier mentioned that very act of purchase by a miller attracts the liability to pay tax under Section 5 read with Schedule 3 item 6. His subsequent dealings in those goods becomes irrelevant. In none of the cases before us it was shown that any of the assessees had purchased groundnut with a view to sell them. Hence we need not go into the question as to what would be the position in law where a miller purchases some groundnut for milling and the rest for sale. 9. Our approach to the question before us is similar to that adopted by the High Court in the decision under appeal. We are in entire agreement with the reasoning of the High Court. But our attention was invited to a latter decision of the same High Court in M. Madar Khan and Co. v. Asst. Commr. (Commercial Taxes) Anantpur, 27 STC 18 = (AIR 1971 Andh Pra 138) which took a view contrary to that taken in the decision under appeal. It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision.
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Quite clearly in view of Section 14 and Section 15 of the Central Sales Tax Act and Section 6 of the Act, purchase of groundnut can be taxed only at one stage. Once a particular quantity of groundnut has been subjected to payment of tax, the States power to tax in respect of those goods gets exhausted and any further dealing in those goods cannot be brought to tax. This is clear from the scheme of the Act. There was no need for the legislature to say when purchased by first miller in column 2 of item 6 of the Third Schedule, because from the language employed therein, it is clear that first purchase becomes exigible to tax and in view of Section 6 of the Act, the subsequent purchases of the same goods cannot be subjected to tax.Therefore there is no question of adding any word into that item, as contended by Mr. M. C. Chagla on behalf of the assesseesAs mentioned earlier the event which attracted tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with that groundnut in any other manner. We have earlier mentioned that very act of purchase by a miller attracts the liability to pay tax under Section 5 read with Schedule 3 item 6. His subsequent dealings in those goods becomes irrelevant. In none of the cases before us it was shown that any of the assessees had purchased groundnut with a view to sell them. Hence we need not go into the question as to what would be the position in law where a miller purchases some groundnut for milling and the rest for sale9. Our approach to the question before us is similar to that adopted by the High Court in the decision under appeal. We are in entire agreement with the reasoning of the High Court. But our attention was invited to a latter decision of the same High Court in M. Madar Khan and Co. v. Asst. Commr. (Commercial Taxes) Anantpur, 27 STC 18 = (AIR 1971 Andh Pra 138) which took a view contrary to that taken in the decision under appeal. It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision4. The groundnut is one of the declared goods to be of special importance ine trade or commerce under Section 14 ofthe Central Sales Tax Act, 1956 and therefore in view of Section 15 (a) of that Act, the State is not empowered to levy purchase tax of more than three per cent. On the turnover in respect of those purchases and further the tax cannot be levied at more than one stage. Herein we are not concerned with5. Now turning to the Act, Section 2 (f) defines declared goods as meaning goods declared under Section 14 ofthe Central Sales Tax Act, 1956 (Central Act 74 of 1956) to be of special importance ine trade or commerce. In compliance with the mandate of Sections 14 and 15 ofthe Central Sales Tax Act, 1956, Section 6 of the Act provides that notwithstanding anything contained in Section 5 (the charging section), the sales or purchases of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase specified against each in the Third Schedule on his turnover of such sales or purchases for each year irrespective of the quantum of his turnover in such goods: and the tax shall be assessed, levied and collected in such manner as may be prescribed. Here again we need not refer to that part of Section 6 which deals withe trade. The only other provision which we have to notice is item 6 of the Third Schedule which deals with groundnut. The point of levy in respect of that item is when purchased by a miller other than a decorticating miller in the State, at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State. The rate of tax is 2 paise in the rupeeIt is now well settled that even under the Sales Tax laws, the charge in respect of a sale or purchase becomes effective as soon as the sale in the case of sales tax and purchase in the case of purchase tax is made, though the liability of the dealer can be computed only at the end of the year.The incurring of the charge is one thing and its computation is a totally different thing. Hence the turnover relating to the purchases with which we are concerned in these appeals became charged with the liability to pay tax as soon as those purchases were made by the. To restate the position, whenever, a miller purchases groundnut, the turnover relating to that purchase becomes exigible to tax subject to such exemptions as may be given under Act. This means that as soon as a first miller purchases groundnut, the turnover relating to that purchase, the question of exemption apart, becomes liable to tax. This is also the view taken by the High Court.
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Neyazuddin and Others Vs. Surya Deva Narain Verma and Others | SHAH, J.1. The respondents to this appeal commenced an action in the Munsif Samastipur for a decree in ejectment against one Maddique, the members of his family, Siddique (brother of Maddique), and the members of Siddiques family for a decree in ejectment and for recovery of arrears of rent before action and future rent till eviction. Maddique died shortly after the suit was filed and his brother Siddique contended that the plaintiffs were not the owners of the property in dispute. Sons of Maddique who were shown as legal representatives adopted the stand taken by Siddique. The Trial Court decreed the claim for rent but not for ejectment. Against that decree an appeal was preferred to the District Court. The District Court set aside the decree of the Trial Court and remanded the case for trial and disposal to the Court of First Instance. The trial court decreed the suit against the defendants. An appeal filed to the District Court was unsuccessful. The decree of the Trial Court was confirmed in second appeal to the High Court of Patna.2. Special leave to appeal was granted by this Court on March 3, 1966. The defendants obtained an order for stay of execution of the decree of the High Court. Thereafter they did not take effective steps to prosecute the appeal. They did not pay the printing charges till September, 1969 and later moved this Court for an order that the printing of the record be dispensed with and that the appeal be heard and disposed of on "the special leave paper book". It was represented to this Court that the only question which the defendants desired to raise before the Court related to the jurisdiction of the Civil Court to entertain the suit on November 14, 1948. The court granted the order dispensing with the printing of the record on that representation.3. In this appeal Mr. Sinha, appearing on behalf of the defendants (Appellants herein), however, seeks not only to raise the contention that the Civil Court had no jurisdiction to entertain the suit as framed, but further contends that the decree passed by the Civil Court in 1951 dismissing the plaintiffs suit for a decree in ejectment has become final and the plaintiffs not having appealed against that decree the decree of the Civil Court passed in 1957 and confirmed by the District Court and High Court of Patna is without jurisdiction.4. We have before us only a copy of the judgment of the High Court, the petition for special leave and the application for stay. Neither the copy of the judgment of the trial court which originally decided the suit nor the copy of the District Courts judgment are before us. Even the translation of the plaint is not before us. We are unable to ascertain what precisely were the everments made in the plaint. From the summary given in the judgment of the High Court it appears that the plaintiffs claimed a decree against the first defendants Maddique on the ground that he was a tenant of no right in the premises. The suit was opposed by the heirs of Maddique and by the defendant Siddique. They contended that the Civil Court had no jurisdiction to entertain the suit at the date when it was instituted in 1948, and only the Rent Controller had, by virtue of Bihar (Lease, Rent and Eviction) Control Act, 1947, jurisdiction to entertain it. The Munsif apparently accepted the contention and declined to grant a decree in ejectment. But the claim in the suit was against Maddique as a tenant of the plaintiff, and against others that they were not tenants. A suit against a tenant could by virtue of the Bihar (Lease, Rent and Evicti on) Control Act, 1947 as it then stood lie only in the Court of the Rent Controller, but no proceeding could lie against a person other than a tenant before the Rent Controller.5. All the defendants denied the tenancy. Prima facie, the proceeding filed by the plaintiff could not competently be tried by the Rent Controller. It is unnecessary, however, to dilate upon this matter. The decree passed by the Court of First Instance was set aside by the District Court and the suit was remanded for re trial. When the suit was re-tried and decided in the year 1957, the Civil Court was by the amendment made by Bihar Act 26 of 1955, invested with jurisdiction to entertain and try a suit and to pass a decree in ejectment even against a tenant. The decree passed by the Trial Court has been confirmed by the District Court and the High Court. The decree under appeal was apparently passed by a Court with jurisdiction. In this appeal with special leave we see no substantial question of law which would justify us in upsetting the decree.6. We do not think that would be justified in allowing Mr. Sinha to raise the alternative argument sought to be raised at this stage, when the defendants have obtained an order from this Court that the appeal is only to be heard on the question of absence of jurisdiction in the Trial Court to entertain the suit under the law as it stood in the year, 1948. The relevant material on which the alternative argument can be considered is not before us, and for that the defendants are responsible. We have no reason to believe that the plaintiffs had not filed an appeal or cross-objections against the decree of the Court of First Instance, especially when the Rent Controller had in a proceeding filed practically simultaneously with the present action directed them to obtain an adjudication of their title in the Civil Court. | 0[ds]4. We have before us only a copy of the judgment of the High Court, the petition for special leave and the application for stay. Neither the copy of the judgment of the trial court which originally decided the suit nor the copy of the District Courts judgment are before us. Even the translation of the plaint is not before us. We are unable to ascertain what precisely were the everments made in the plaint. From the summary given in the judgment of the High Court it appears that the plaintiffs claimed a decree against the first defendants Maddique on the ground that he was a tenant of no right in the premises. The suit was opposed by the heirs of Maddique and by the defendant Siddique. They contended that the Civil Court had no jurisdiction to entertain the suit at the date when it was instituted in 1948, and only the Rent Controller had, by virtue of Bihar (Lease, Rent and Eviction) Control Act, 1947, jurisdiction to entertain it. The Munsif apparently accepted the contention and declined to grant a decree in ejectment. But the claim in the suit was against Maddique as a tenant of the plaintiff, and against others that they were not tenants. A suit against a tenant could by virtue of the Bihar (Lease, Rent and Evicti on) Control Act, 1947 as it then stood lie only in the Court of the Rent Controller, but no proceeding could lie against a person other than a tenant before the Rent Controller.5. All the defendants denied the tenancy. Prima facie, the proceeding filed by the plaintiff could not competently be tried by the Rent Controller. It is unnecessary, however, to dilate upon this matter. The decree passed by the Court of First Instance was set aside by the District Court and the suit was remanded for re trial. When the suit wasand decided in the year 1957, the Civil Court was by the amendment made by Bihar Act 26 of 1955, invested with jurisdiction to entertain and try a suit and to pass a decree in ejectment even against a tenant. The decree passed by the Trial Court has been confirmed by the District Court and the High Court. The decree under appeal was apparently passed by a Court with jurisdiction. In this appeal with special leave we see no substantial question of law which would justify us in upsetting the decree.6. We do not think that would be justified in allowing Mr. Sinha to raise the alternative argument sought to be raised at this stage, when the defendants have obtained an order from this Court that the appeal is only to be heard on the question of absence of jurisdiction in the Trial Court to entertain the suit under the law as it stood in the year, 1948. The relevant material on which the alternative argument can be considered is not before us, and for that the defendants are responsible. We have no reason to believe that the plaintiffs had not filed an appeal oragainst the decree of the Court of First Instance, especially when the Rent Controller had in a proceeding filed practically simultaneously with the present action directed them to obtain an adjudication of their title in the Civil Court. | 0 | 1,029 | 595 | ### 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:
SHAH, J.1. The respondents to this appeal commenced an action in the Munsif Samastipur for a decree in ejectment against one Maddique, the members of his family, Siddique (brother of Maddique), and the members of Siddiques family for a decree in ejectment and for recovery of arrears of rent before action and future rent till eviction. Maddique died shortly after the suit was filed and his brother Siddique contended that the plaintiffs were not the owners of the property in dispute. Sons of Maddique who were shown as legal representatives adopted the stand taken by Siddique. The Trial Court decreed the claim for rent but not for ejectment. Against that decree an appeal was preferred to the District Court. The District Court set aside the decree of the Trial Court and remanded the case for trial and disposal to the Court of First Instance. The trial court decreed the suit against the defendants. An appeal filed to the District Court was unsuccessful. The decree of the Trial Court was confirmed in second appeal to the High Court of Patna.2. Special leave to appeal was granted by this Court on March 3, 1966. The defendants obtained an order for stay of execution of the decree of the High Court. Thereafter they did not take effective steps to prosecute the appeal. They did not pay the printing charges till September, 1969 and later moved this Court for an order that the printing of the record be dispensed with and that the appeal be heard and disposed of on "the special leave paper book". It was represented to this Court that the only question which the defendants desired to raise before the Court related to the jurisdiction of the Civil Court to entertain the suit on November 14, 1948. The court granted the order dispensing with the printing of the record on that representation.3. In this appeal Mr. Sinha, appearing on behalf of the defendants (Appellants herein), however, seeks not only to raise the contention that the Civil Court had no jurisdiction to entertain the suit as framed, but further contends that the decree passed by the Civil Court in 1951 dismissing the plaintiffs suit for a decree in ejectment has become final and the plaintiffs not having appealed against that decree the decree of the Civil Court passed in 1957 and confirmed by the District Court and High Court of Patna is without jurisdiction.4. We have before us only a copy of the judgment of the High Court, the petition for special leave and the application for stay. Neither the copy of the judgment of the trial court which originally decided the suit nor the copy of the District Courts judgment are before us. Even the translation of the plaint is not before us. We are unable to ascertain what precisely were the everments made in the plaint. From the summary given in the judgment of the High Court it appears that the plaintiffs claimed a decree against the first defendants Maddique on the ground that he was a tenant of no right in the premises. The suit was opposed by the heirs of Maddique and by the defendant Siddique. They contended that the Civil Court had no jurisdiction to entertain the suit at the date when it was instituted in 1948, and only the Rent Controller had, by virtue of Bihar (Lease, Rent and Eviction) Control Act, 1947, jurisdiction to entertain it. The Munsif apparently accepted the contention and declined to grant a decree in ejectment. But the claim in the suit was against Maddique as a tenant of the plaintiff, and against others that they were not tenants. A suit against a tenant could by virtue of the Bihar (Lease, Rent and Evicti on) Control Act, 1947 as it then stood lie only in the Court of the Rent Controller, but no proceeding could lie against a person other than a tenant before the Rent Controller.5. All the defendants denied the tenancy. Prima facie, the proceeding filed by the plaintiff could not competently be tried by the Rent Controller. It is unnecessary, however, to dilate upon this matter. The decree passed by the Court of First Instance was set aside by the District Court and the suit was remanded for re trial. When the suit was re-tried and decided in the year 1957, the Civil Court was by the amendment made by Bihar Act 26 of 1955, invested with jurisdiction to entertain and try a suit and to pass a decree in ejectment even against a tenant. The decree passed by the Trial Court has been confirmed by the District Court and the High Court. The decree under appeal was apparently passed by a Court with jurisdiction. In this appeal with special leave we see no substantial question of law which would justify us in upsetting the decree.6. We do not think that would be justified in allowing Mr. Sinha to raise the alternative argument sought to be raised at this stage, when the defendants have obtained an order from this Court that the appeal is only to be heard on the question of absence of jurisdiction in the Trial Court to entertain the suit under the law as it stood in the year, 1948. The relevant material on which the alternative argument can be considered is not before us, and for that the defendants are responsible. We have no reason to believe that the plaintiffs had not filed an appeal or cross-objections against the decree of the Court of First Instance, especially when the Rent Controller had in a proceeding filed practically simultaneously with the present action directed them to obtain an adjudication of their title in the Civil Court.
### Response:
0
### Explanation:
4. We have before us only a copy of the judgment of the High Court, the petition for special leave and the application for stay. Neither the copy of the judgment of the trial court which originally decided the suit nor the copy of the District Courts judgment are before us. Even the translation of the plaint is not before us. We are unable to ascertain what precisely were the everments made in the plaint. From the summary given in the judgment of the High Court it appears that the plaintiffs claimed a decree against the first defendants Maddique on the ground that he was a tenant of no right in the premises. The suit was opposed by the heirs of Maddique and by the defendant Siddique. They contended that the Civil Court had no jurisdiction to entertain the suit at the date when it was instituted in 1948, and only the Rent Controller had, by virtue of Bihar (Lease, Rent and Eviction) Control Act, 1947, jurisdiction to entertain it. The Munsif apparently accepted the contention and declined to grant a decree in ejectment. But the claim in the suit was against Maddique as a tenant of the plaintiff, and against others that they were not tenants. A suit against a tenant could by virtue of the Bihar (Lease, Rent and Evicti on) Control Act, 1947 as it then stood lie only in the Court of the Rent Controller, but no proceeding could lie against a person other than a tenant before the Rent Controller.5. All the defendants denied the tenancy. Prima facie, the proceeding filed by the plaintiff could not competently be tried by the Rent Controller. It is unnecessary, however, to dilate upon this matter. The decree passed by the Court of First Instance was set aside by the District Court and the suit was remanded for re trial. When the suit wasand decided in the year 1957, the Civil Court was by the amendment made by Bihar Act 26 of 1955, invested with jurisdiction to entertain and try a suit and to pass a decree in ejectment even against a tenant. The decree passed by the Trial Court has been confirmed by the District Court and the High Court. The decree under appeal was apparently passed by a Court with jurisdiction. In this appeal with special leave we see no substantial question of law which would justify us in upsetting the decree.6. We do not think that would be justified in allowing Mr. Sinha to raise the alternative argument sought to be raised at this stage, when the defendants have obtained an order from this Court that the appeal is only to be heard on the question of absence of jurisdiction in the Trial Court to entertain the suit under the law as it stood in the year, 1948. The relevant material on which the alternative argument can be considered is not before us, and for that the defendants are responsible. We have no reason to believe that the plaintiffs had not filed an appeal oragainst the decree of the Court of First Instance, especially when the Rent Controller had in a proceeding filed practically simultaneously with the present action directed them to obtain an adjudication of their title in the Civil Court.
|
Gyasuddin Khan @ Mohd.Gyaduddin Khan Vs. State Of Bihar | context, we may quote the pertinent observations made by Sarkaria j. speaking for the Constitution Bench in Bachan Singhs case: "As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of special reasons in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because style is the man. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist." (emphasis supplied) 17. It was then pointed out that: "No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of aggravating circumstances which may form the basis of special reasons in Section 354(3), circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree". (emphasis supplied) In Machhi Singh vs. State of Punjab (1933 (3) SCC 470), this Court after referring to the guidelines adverted to in Bachan Singhs case applied the following working test to reach the conclusion whether a particular case warrants death sentence; "(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but no impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" 18. Now, we shall turn our attention to the relevant facts and circumstances having a bearing on the question of sentence. The appellant was aggrieved by the action of Hawaldar Ram Pandey in taking him to task for his lapses or indisciplined behaviour. Even then, no sensible person caring for his own future and the future of his family would risk to avenge the alleged wrong done to him by taking recourse to the extreme step of killing the Hawaldar openly in the presence of all his colleagues. This act of killing Ram Pandey with no apparently motive to derive an advantage or gain out of it reveals the mental state of the appellant. Such an abnormal and desperate behaviour on the part of the appellant unfolds his attitude and personality. We get a picture of the appellant as an over-sensitive, over-emotional, self-centred and hot headed person utterly lacking in restraint and foresight. In fact, PW7s evidence does throw light on these characteristics of the appellant, when he describes the accused as Manbhadhu and Manshokh. It seems to us that he had almost a paranoid tendency which had driven him to the extreme step of taking away the life of his superior official without thinking of the obvious consequences that would befall on him and his family. The feelings of humiliation, mental tension, indignation and retribution towards his officer have apparently overtaken him. The result was that he acted in a state of extremely perturbed and imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the fact that the accused was very much disturbed after the action initiated by the deceased Ram Pandey. 19. The mental condition or state of mind of the accused is one of the factors that has been legitimately taken into account in various cases and that can be taken into account in considering the question of sentence. There are various cases in which the Court having regard to the disturbed or imbalanced state of mind of the accused at the time of commission of offence, thought it fit not to impose the death sentence vide: Shamshul Kanwar vs. State of U.P. (1995 (4) SCC 430 ), Lehna vs. State of Haryana (2002 (3) SCC 76 ), and Om Prakash vs. State of Haryana (1999 (3) SCC 19 ). 20. In Francis vs. State of Kerala (1975 (3) SCC 825 ), the following pertinent observations were made: "Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned, the background, the context, or the factual setting of the crime, and the strength and nature of the motives operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these, while insufficient to bring in an exception may suffice to make the less severe sentence more appropriate." The killing of two other police men without premeditation and without any motive whatsoever further reveals that these acts were done out of panic reaction and in a state of frenzy. It is not a case where it can be said with certitude that the murderous attacks were diabolical in conception and cruel in execution as pointed out in Bachan Singhs case (supra). Nor can it be said that "the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society or that the collective consciousness of the community would be shocked" if the death sentence is not inflicted in the instant case. Above all, the sentence of death has been haunting him for considerable time. | 1[ds]13. The defence witnesses account was rightly disbelieved by the trial Court and the High Court. First of all, it must be noted that these witnesses never came forward to give their version before the police. There is no explanation as to why they should, as law abiding citizens, withhold the important information. The defence witnesses 1 to 5 came forward with an omnibus version that ten to fifteen persons armed with rifles and guns came from the east of the police picket and began firing after surrounding the picket. Some of them stated that they noticed some persons inside the camp falling to ground after receiving the shots and further stated that they noticed some policemen running away. According to the witnesses, none of those alleged miscreants could be identified by them. The trial Court at paras 18 and 19 discarded their evidence on a critical analysis and probabilities. The discussion of the High Court is at paragraph 22. We are in agreement with the trial Court and the High Court that the defence evidence is not trustworthy14. In the light of the overwhelming and unimpeachable evidence, it has been established beyond shadow of doubt that the appellant killed the three policemen, namely, Ram Pandey (Hawaldar), Chandrashekar Singh (S.I.) and Bhagirath Singh (Hawaldar) with then picked up from the chowki of Ram Pandey. The conviction of the appellant under Section 302 IPC is therefore upheld18. Now, we shall turn our attention to the relevant facts and circumstances having a bearing on the question of sentence. The appellant was aggrieved by the action of Hawaldar Ram Pandey in taking him to task for his lapses or indisciplined behaviour. Even then, no sensible person caring for his own future and the future of his family would risk to avenge the alleged wrong done to him by taking recourse to the extreme step of killing the Hawaldar openly in the presence of all his colleagues. This act of killing Ram Pandey with no apparently motive to derive an advantage or gain out of it reveals the mental state of the appellant. Such an abnormal and desperate behaviour on the part of the appellant unfolds his attitude and personality. We get a picture of the appellant as and and hot headed person utterly lacking in restraint and foresight. In fact, PW7s evidence does throw light on these characteristics of the appellant, when he describes the accused as Manbhadhu and Manshokh. It seems to us that he had almost a paranoid tendency which had driven him to the extreme step of taking away the life of his superior official without thinking of the obvious consequences that would befall on him and his family. The feelings of humiliation, mental tension, indignation and retribution towards his officer have apparently overtaken him. The result was that he acted in a state of extremely perturbed and imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the fact that the accused was very much disturbed after the action initiated by the deceased Ram Pandey21. In conclusion we would like to say that the facts of the case on hand are quite close to the facts of Randhir Basu vs. State of West Bengal (2000 (3) SCC 161 ) and Allauddin Mian vs. State of Bihar (1989 (3) SCC 5 ) in which the Court did not choose to impose death sentence in multiple murder cases. The indiscriminate killing ofn resorted to by a member of disciplined force is no doubt an aggravating factor but it is offset by other mitigating circumstances discussed above and we are, therefore, inclined to hold that death sentence is not the appropriate sentence in the instant case. We, therefore, set aside the judgment under appeal insofar as it has confirmed the sentence of death while maintaining the conviction under Section 302 IPC. The appellant is hereby sentenced to life imprisonment and a fine of Rs. 1,000/and in default of payment of fine to undergo imprisonment for a period of six months22. The conviction under Section 27 of the Arms Act cannot however be sustained. The gravamen of the second charge framed against the appellant is that he used then and SLR for the unlawful purpose of killing the three persons. There is no evidence to the effect that the weapon used, namely, answers the description of prohibited arms within the meaning of Section 2(1)(i) of the Arms Act. The report of the Sergeant Major to whom the weapons were sent was only to the effect that they were in working condition. There was no discussion whatsoever either by the trial Court or by the High Court in regard to the offence under Section 27. We are not inclined at this stage to probe further and address the question whether then of Ram Pandey which was used in the commission of the crime is a prohibited arm within the meaning of Section 2(1)(i) though, in all likelihood, it may be. It is not appropriate to convict the appellant under Section 27(3) in which the extreme punishment of death is provided for. Hence the conviction of the appellant under Section 27 of the Arms Act, 1959 is hereby set asideResultantly, the appeal is allowed to the extent set out above. | 1 | 4,617 | 972 | ### 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:
context, we may quote the pertinent observations made by Sarkaria j. speaking for the Constitution Bench in Bachan Singhs case: "As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of special reasons in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because style is the man. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist." (emphasis supplied) 17. It was then pointed out that: "No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of aggravating circumstances which may form the basis of special reasons in Section 354(3), circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree". (emphasis supplied) In Machhi Singh vs. State of Punjab (1933 (3) SCC 470), this Court after referring to the guidelines adverted to in Bachan Singhs case applied the following working test to reach the conclusion whether a particular case warrants death sentence; "(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but no impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" 18. Now, we shall turn our attention to the relevant facts and circumstances having a bearing on the question of sentence. The appellant was aggrieved by the action of Hawaldar Ram Pandey in taking him to task for his lapses or indisciplined behaviour. Even then, no sensible person caring for his own future and the future of his family would risk to avenge the alleged wrong done to him by taking recourse to the extreme step of killing the Hawaldar openly in the presence of all his colleagues. This act of killing Ram Pandey with no apparently motive to derive an advantage or gain out of it reveals the mental state of the appellant. Such an abnormal and desperate behaviour on the part of the appellant unfolds his attitude and personality. We get a picture of the appellant as an over-sensitive, over-emotional, self-centred and hot headed person utterly lacking in restraint and foresight. In fact, PW7s evidence does throw light on these characteristics of the appellant, when he describes the accused as Manbhadhu and Manshokh. It seems to us that he had almost a paranoid tendency which had driven him to the extreme step of taking away the life of his superior official without thinking of the obvious consequences that would befall on him and his family. The feelings of humiliation, mental tension, indignation and retribution towards his officer have apparently overtaken him. The result was that he acted in a state of extremely perturbed and imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the fact that the accused was very much disturbed after the action initiated by the deceased Ram Pandey. 19. The mental condition or state of mind of the accused is one of the factors that has been legitimately taken into account in various cases and that can be taken into account in considering the question of sentence. There are various cases in which the Court having regard to the disturbed or imbalanced state of mind of the accused at the time of commission of offence, thought it fit not to impose the death sentence vide: Shamshul Kanwar vs. State of U.P. (1995 (4) SCC 430 ), Lehna vs. State of Haryana (2002 (3) SCC 76 ), and Om Prakash vs. State of Haryana (1999 (3) SCC 19 ). 20. In Francis vs. State of Kerala (1975 (3) SCC 825 ), the following pertinent observations were made: "Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned, the background, the context, or the factual setting of the crime, and the strength and nature of the motives operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these, while insufficient to bring in an exception may suffice to make the less severe sentence more appropriate." The killing of two other police men without premeditation and without any motive whatsoever further reveals that these acts were done out of panic reaction and in a state of frenzy. It is not a case where it can be said with certitude that the murderous attacks were diabolical in conception and cruel in execution as pointed out in Bachan Singhs case (supra). Nor can it be said that "the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society or that the collective consciousness of the community would be shocked" if the death sentence is not inflicted in the instant case. Above all, the sentence of death has been haunting him for considerable time.
### Response:
1
### Explanation:
13. The defence witnesses account was rightly disbelieved by the trial Court and the High Court. First of all, it must be noted that these witnesses never came forward to give their version before the police. There is no explanation as to why they should, as law abiding citizens, withhold the important information. The defence witnesses 1 to 5 came forward with an omnibus version that ten to fifteen persons armed with rifles and guns came from the east of the police picket and began firing after surrounding the picket. Some of them stated that they noticed some persons inside the camp falling to ground after receiving the shots and further stated that they noticed some policemen running away. According to the witnesses, none of those alleged miscreants could be identified by them. The trial Court at paras 18 and 19 discarded their evidence on a critical analysis and probabilities. The discussion of the High Court is at paragraph 22. We are in agreement with the trial Court and the High Court that the defence evidence is not trustworthy14. In the light of the overwhelming and unimpeachable evidence, it has been established beyond shadow of doubt that the appellant killed the three policemen, namely, Ram Pandey (Hawaldar), Chandrashekar Singh (S.I.) and Bhagirath Singh (Hawaldar) with then picked up from the chowki of Ram Pandey. The conviction of the appellant under Section 302 IPC is therefore upheld18. Now, we shall turn our attention to the relevant facts and circumstances having a bearing on the question of sentence. The appellant was aggrieved by the action of Hawaldar Ram Pandey in taking him to task for his lapses or indisciplined behaviour. Even then, no sensible person caring for his own future and the future of his family would risk to avenge the alleged wrong done to him by taking recourse to the extreme step of killing the Hawaldar openly in the presence of all his colleagues. This act of killing Ram Pandey with no apparently motive to derive an advantage or gain out of it reveals the mental state of the appellant. Such an abnormal and desperate behaviour on the part of the appellant unfolds his attitude and personality. We get a picture of the appellant as and and hot headed person utterly lacking in restraint and foresight. In fact, PW7s evidence does throw light on these characteristics of the appellant, when he describes the accused as Manbhadhu and Manshokh. It seems to us that he had almost a paranoid tendency which had driven him to the extreme step of taking away the life of his superior official without thinking of the obvious consequences that would befall on him and his family. The feelings of humiliation, mental tension, indignation and retribution towards his officer have apparently overtaken him. The result was that he acted in a state of extremely perturbed and imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the fact that the accused was very much disturbed after the action initiated by the deceased Ram Pandey21. In conclusion we would like to say that the facts of the case on hand are quite close to the facts of Randhir Basu vs. State of West Bengal (2000 (3) SCC 161 ) and Allauddin Mian vs. State of Bihar (1989 (3) SCC 5 ) in which the Court did not choose to impose death sentence in multiple murder cases. The indiscriminate killing ofn resorted to by a member of disciplined force is no doubt an aggravating factor but it is offset by other mitigating circumstances discussed above and we are, therefore, inclined to hold that death sentence is not the appropriate sentence in the instant case. We, therefore, set aside the judgment under appeal insofar as it has confirmed the sentence of death while maintaining the conviction under Section 302 IPC. The appellant is hereby sentenced to life imprisonment and a fine of Rs. 1,000/and in default of payment of fine to undergo imprisonment for a period of six months22. The conviction under Section 27 of the Arms Act cannot however be sustained. The gravamen of the second charge framed against the appellant is that he used then and SLR for the unlawful purpose of killing the three persons. There is no evidence to the effect that the weapon used, namely, answers the description of prohibited arms within the meaning of Section 2(1)(i) of the Arms Act. The report of the Sergeant Major to whom the weapons were sent was only to the effect that they were in working condition. There was no discussion whatsoever either by the trial Court or by the High Court in regard to the offence under Section 27. We are not inclined at this stage to probe further and address the question whether then of Ram Pandey which was used in the commission of the crime is a prohibited arm within the meaning of Section 2(1)(i) though, in all likelihood, it may be. It is not appropriate to convict the appellant under Section 27(3) in which the extreme punishment of death is provided for. Hence the conviction of the appellant under Section 27 of the Arms Act, 1959 is hereby set asideResultantly, the appeal is allowed to the extent set out above.
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Padhiyar Prahladji Chenaji (Deceased) Through L.R.s Vs. Maniben Jagmalbhai (Deceased) Through L.R.s and Ors | by the law, the plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. 12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:- 79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court. In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :- 28. The expressions due process of law, due course of law and recourse to law have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law. Clearly, due process of law or due course of law, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this due process or due course condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the bare minimum requirement of due process or due course of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the recourse to law stipulation stands satisfied when a judicial determination is made with regard to the first partys protective action. Thus, in the present case, the plaintiffs failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law. 12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner. 13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner. | 1[ds]8. So far as the submission on behalf of the defendant No.1 that even the suit for permanent injunction is barred by law of limitation and the further submission of defendant No.1 that the registered sale deed was executed on 17.06.1975 and immediately thereafter the name of the defendant No.1 was mutated in the Revenue record and thereafter all throughout the name of the defendant No.1 continued in the Revenue record as a cultivator and the suit was filed after a period of 22 years, is concerned, it is true that there are concurrent findings by the trial court as well as the First Appellate Court that the plaintiff is in possession of the disputed land in question. However, it is required to be noted that in the Revenue record, right from 1976 onwards and after the registered sale deed in favour of the defendant No.1, the name of the defendant No.1 was mutated in the Revenue record and in the column of farmer and the cultivator, the name of the defendant No.1 is mentioned. Even the crops being cultivated by the cultivator are mentioned in the Revenue record. Thus, right from 1976 onwards till 1997 in the Revenue record, the name of defendant No.1 is mutated as an owner and cultivator. Nothing is on record to the effect that at any point of time and after the registered sale deed was executed in favour of defendant No.1, the plaintiff paid any revenue in respect of the land in question. After the execution of the registered sale deed in favour of defendant No.1, which has been believed by all the courts below, the name of defendant No.1 was mutated in the Revenue record as an owner and cultivator and the plaintiff, who claims to be in possession of the land and cultivating the same, is deemed to have the knowledge of the said entry.8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702, it is observed and held by this Court that where there is a dispute that the suit is filed beyond the period of limitation, the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of deemed knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.8.2 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, it is noted that the registered sale deed in favour of defendant No.1 is dated 17.06.1975 and thereafter immediately the name of defendant No.1 – purchaser was mutated in the Revenue record, which continued till the filing of the suit and the name of defendant No.1 is shown as an owner and cultivator and even the crop grown is also shown and when the plaintiff claims that she is in possession and cultivating the land, she would have known the above facts, if she had exercised due diligence and therefore as observed by this Court, the plaintiff(s) can be said to have deemed knowledge of the title as well as possession of defendant No.1. It is to be noted that even in the registered sale deed, it was mentioned that the possession of the entire land in question has been handed over to defendant No.1 – purchaser. At this stage, it is required to be noted that the execution of the registered sale deed and the payment of full sale consideration mentioned in the registered sale deed has been believed and accepted by all the courts below. Therefore, there was no reason for the trial court not to believe the averments in the registered sale deed of handing over the possession to the defendant No.1 – purchaser. The relief of permanent injunction sought by the plaintiff as such was a consequential relief, which shall be discussed herein below.8.3 Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable.9. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. In the present case, as observed hereinabove and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.9.1 At this stage, the decision of this Court in the case of Jharkhand State Housing Board Vs. Didar Singh and Anr., (2019) 17 SCC 692 is required to be referred to. In the said decision, it is observed and held by this Court that though a bare suit for injunction in the absence of declaration relief would be maintainable and in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief. It is further observed and held that, however, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.9.2 In the present case, once the defendant No.1 was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the plaintiff and/or even the defendant. Therefore, the only relief which survived before the trial court was the consideration of relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal.In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiffs possession cannot be said to be lawful possession. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is not legal or authorised by the law, the plaintiff shall not be entitled to any permanent injunction.While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :-28. The expressions due process of law, due course of law and recourse to law have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law. Clearly, due process of law or due course of law, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.Now, this due process or due course condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the bare minimum requirement of due process or due course of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the recourse to law stipulation stands satisfied when a judicial determination is made with regard to the first partys protective action. Thus, in the present case, the plaintiffs failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner. | 1 | 6,369 | 2,727 | ### Instruction:
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by the law, the plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. 12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:- 79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court. In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :- 28. The expressions due process of law, due course of law and recourse to law have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law. Clearly, due process of law or due course of law, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this due process or due course condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the bare minimum requirement of due process or due course of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the recourse to law stipulation stands satisfied when a judicial determination is made with regard to the first partys protective action. Thus, in the present case, the plaintiffs failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law. 12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner. 13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.
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sale consideration thereafter the plaintiffs possession cannot be said to be lawful possession. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is not legal or authorised by the law, the plaintiff shall not be entitled to any permanent injunction.While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :-28. The expressions due process of law, due course of law and recourse to law have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law. Clearly, due process of law or due course of law, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.Now, this due process or due course condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the bare minimum requirement of due process or due course of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the recourse to law stipulation stands satisfied when a judicial determination is made with regard to the first partys protective action. Thus, in the present case, the plaintiffs failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.
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Narayanibai Vs. State of Maharashtra | Constitution.Subba Rao, C.J., who spoke for himself and four of his colleagues observed that Art. 13(3) gives an inclusive definition of "law" which does not, prima facie, exclude "constitutional law, and proceeded to enunciate certain propositions, of which the following are, for the purposes of the present case, , relevant:"(2) Amendment is law within the meaning of Art, 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof. it is void.(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.(4) On the application of the doctrine of prospective over-ruling , . . . our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.(5) . . . that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein."Applying those propositions he held that since the Constitution (Seventeenth Amendment) Act could not be declared void, validity of the Punjab Security of Land Tenures Act X of 1953, and the, Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, challenged in that case could not be questioned on the ground that those Acts offended Arts. 13, 14 or 31 of the Constitution.Hidayatullah, J., also held that the expression "law" in Art. 13(2) did include within itself constitutional law. But he held that though the Seventeenth Amendment which extended the definition of estate to include ryotwari and agricultural lands was an inroad upon the fundamental rights, the Acts were protected from challenge under Art. 31A (1) (a) of the Constitution.4. It is clear from this analysis that the Court (except Hidayatullah, J., ) opined, though for different reasons, that the Acts incorporate in Seventeenth Amendment to the Constitution were not liable to be challenged as infringing the fundamental rights. Hidayatullah, J., was of the view that the challenge to the two Act-, which were impugned in that case was unsuccessful, because of the provisions of Arts. 31(1), (2), (2A), 31A(1) of the Constitution, Mr. Setalvad contended that this interpretation of the judgment of the Court in I. C. Golak Naths case([1967] 2 S.C.R. 762.) is in consistent with the basic concept of the "doctrine of prospective over-ruling" as enunciated in the Courts of its origin, and it must - on that account be held that, the Court intended to give effect to the traditional concept of the doctrine in all its implications. But Subba Rao, C.J., used the expression "doctrine of prospective overruling" as a convenient mode of describing the power which the Court exercised in I. C. Golak Naths case([1967] 2 S.C.R. 762.). He has not expressly or by implication sought to incorporate in the stream of our jurisprudence, "the doctrine of prospective overruling" in all its manifold implications as understood by the American Courts. Again, the ten Judges who agreed in upholding the Seventeenth Amendment were equally divided: five relied upon the "doctrine of prospective overruling": five upon the power of the Parliament to exclude from the pale of challenge the Acts and Regulations in the Ninth Schedule, notwithstanding that they infringe any of the fundamental rights in Part III of the Constitution. Mr. Setalvad contended that to uphold the validity of the Acts in the Ninth Schedule, and action taken thereon after February 27, 1967, involves a basic inconsistency. Counsel submitted that an Act cannot be both valid and invalid at the same time. He submitted that with a view to avoid chaos in the body politic the wheel of time was not reversed till the date of the Constitution First Amendment, but the majority of the Court still denied to the Parliament power to incorporate in the Ninth Schedule Acts and Regulations removed from the pale of judicial scrutiny on the plea that the fundamental rights of the people were infringed thereby. If that be the true effect of the judgment, said Mr. Setalwad, it must logically follow from the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.) that the Seventeenth Amendment has no validity after February 27, 1967. We are unable to agree with that interpretation for more reasons than one. The first and the most obvious is that the majority of the Court expressly held that by virtue of Art. 31(B) the Acts incorporated in the Ninth Schedule were not exposed to challenge on the ground that they infringed the fundamental rights of the people. The second is that even the Judges for whom Subba Rao, C.J. spoke did not accept the "doctrine of prospective overruling" in all its implications- as understood by the American Courts. They merely denied to the Parliament power after February 27, 1967 to amend the Constitution so as to take away any of the fundamental rights of the people, but amendments made prior to that date and action taken pursuant to the amendments, both before and after February 27, 1967, were not to be deemed invalid, on the ground that they infringed the guarantee of fundamental rights. That being the true effect of the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.), the petitioner cannot be permitted to challenge the validity of the action taken under the provisions of the Maharashtra Act of 1961 on the ground that the action had been taken after February 27, 1967.5. In a later judgment of this Court in State of Maharashtra etc. v. Madhavrao Damodar Patilchand &Ors. etc. ([1968] 3 S.C.R. 712) the validity of the Maharashtra Act 27 of 1961 as amended by Act 13 of 1962 was challenged and this Court upheld the validity of the Maharashtra Act 27 of 1961 as originally enacted -and also the amendment made by Act 13 of 1962.6. | 0[ds]In our judgment, that is not the effect of I. C. Golak Naths case([1967] 2 S.C.R. 762.). In that case Wanchoo, Bhargava and Mitter, JJ., held that the word law in Art. 13 (1) does not include any law in the nature of a constitutional provision, and Art. 13 (2) when it speaks of the State making any law, refers to the law made under the provisions contained in Ch. 1 of Part XI of the Constitution: it has no reference to the constituent power of amendment under Art. 368. Bachawat and Ramaswami, JJ., substantially agreed with that view. They therefore regarded all the Acts in the Ninth Schedule as beyond challenge on the plea that the Acts or provisions infringed any of the fundamental rights under Part III of theis clear from this analysis that the Court (except Hidayatullah, J., ) opined, though for different reasons, that the Acts incorporate in Seventeenth Amendment to the Constitution were not liable to be challenged as infringing the fundamental rights. Hidayatullah, J., was of the view that the challenge to the two Act-, which were impugned in that case was unsuccessful, because of the provisions of Arts. 31(1), (2), (2A), 31A(1) of the Constitution, Mr. Setalvad contended that this interpretation of the judgment of the Court in I. C. Golak Naths case([1967] 2 S.C.R. 762.) is in consistent with the basic concept of the "doctrine of prospective over-ruling" as enunciated in the Courts of its origin, and it must - on that account be held that, the Court intended to give effect to the traditional concept of the doctrine in all its implications. But Subba Rao, C.J., used the expression "doctrine of prospective overruling" as a convenient mode of describing the power which the Court exercised in I. C. Golak Naths case([1967] 2 S.C.R. 762.). He has not expressly or by implication sought to incorporate in the stream of our jurisprudence, "the doctrine of prospective overruling" in all its manifold implications as understood by the American Courts. Again, the ten Judges who agreed in upholding the Seventeenth Amendment were equally divided: five relied upon the "doctrine of prospective overruling": five upon the power of the Parliament to exclude from the pale of challenge the Acts and Regulations in the Ninth Schedule, notwithstanding that they infringe any of the fundamental rights in Part III of the Constitution. Mr. Setalvad contended that to uphold the validity of the Acts in the Ninth Schedule, and action taken thereon after February 27, 1967, involves a basic inconsistency. Counsel submitted that an Act cannot be both valid and invalid at the same time. He submitted that with a view to avoid chaos in the body politic the wheel of time was not reversed till the date of the Constitution First Amendment, but the majority of the Court still denied to the Parliament power to incorporate in the Ninth Schedule Acts and Regulations removed from the pale of judicial scrutiny on the plea that the fundamental rights of the people were infringed thereby. If that be the true effect of the judgment, said Mr. Setalwad, it must logically follow from the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.) that the Seventeenth Amendment has no validity after February 27, 1967. We are unable to agree with that interpretation for more reasons than one. The first and the most obvious is that the majority of the Court expressly held that by virtue of Art. 31(B) the Acts incorporated in the Ninth Schedule were not exposed to challenge on the ground that they infringed the fundamental rights of the people. The second is that even the Judges for whom Subba Rao, C.J. spoke did not accept the "doctrine of prospective overruling" in all its implications- as understood by the American Courts. They merely denied to the Parliament power after February 27, 1967 to amend the Constitution so as to take away any of the fundamental rights of the people, but amendments made prior to that date and action taken pursuant to the amendments, both before and after February 27, 1967, were not to be deemed invalid, on the ground that they infringed the guarantee of fundamental rights. That being the true effect of the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.), the petitioner cannot be permitted to challenge the validity of the action taken under the provisions of the Maharashtra Act of 1961 on the ground that the action had been taken after February 27,a later judgment of this Court in State of Maharashtra etc. v. Madhavrao Damodar Patilchand &Ors. etc. ([1968] 3 S.C.R. 712) the validity of the Maharashtra Act 27 of 1961 as amended by Act 13 of 1962 was challenged and this Court upheld the validity of the Maharashtra Act 27 of 1961 as originally enacted -and also the amendment made by Act 13 of 1962. | 0 | 1,973 | 961 | ### 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:
Constitution.Subba Rao, C.J., who spoke for himself and four of his colleagues observed that Art. 13(3) gives an inclusive definition of "law" which does not, prima facie, exclude "constitutional law, and proceeded to enunciate certain propositions, of which the following are, for the purposes of the present case, , relevant:"(2) Amendment is law within the meaning of Art, 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof. it is void.(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.(4) On the application of the doctrine of prospective over-ruling , . . . our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.(5) . . . that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein."Applying those propositions he held that since the Constitution (Seventeenth Amendment) Act could not be declared void, validity of the Punjab Security of Land Tenures Act X of 1953, and the, Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, challenged in that case could not be questioned on the ground that those Acts offended Arts. 13, 14 or 31 of the Constitution.Hidayatullah, J., also held that the expression "law" in Art. 13(2) did include within itself constitutional law. But he held that though the Seventeenth Amendment which extended the definition of estate to include ryotwari and agricultural lands was an inroad upon the fundamental rights, the Acts were protected from challenge under Art. 31A (1) (a) of the Constitution.4. It is clear from this analysis that the Court (except Hidayatullah, J., ) opined, though for different reasons, that the Acts incorporate in Seventeenth Amendment to the Constitution were not liable to be challenged as infringing the fundamental rights. Hidayatullah, J., was of the view that the challenge to the two Act-, which were impugned in that case was unsuccessful, because of the provisions of Arts. 31(1), (2), (2A), 31A(1) of the Constitution, Mr. Setalvad contended that this interpretation of the judgment of the Court in I. C. Golak Naths case([1967] 2 S.C.R. 762.) is in consistent with the basic concept of the "doctrine of prospective over-ruling" as enunciated in the Courts of its origin, and it must - on that account be held that, the Court intended to give effect to the traditional concept of the doctrine in all its implications. But Subba Rao, C.J., used the expression "doctrine of prospective overruling" as a convenient mode of describing the power which the Court exercised in I. C. Golak Naths case([1967] 2 S.C.R. 762.). He has not expressly or by implication sought to incorporate in the stream of our jurisprudence, "the doctrine of prospective overruling" in all its manifold implications as understood by the American Courts. Again, the ten Judges who agreed in upholding the Seventeenth Amendment were equally divided: five relied upon the "doctrine of prospective overruling": five upon the power of the Parliament to exclude from the pale of challenge the Acts and Regulations in the Ninth Schedule, notwithstanding that they infringe any of the fundamental rights in Part III of the Constitution. Mr. Setalvad contended that to uphold the validity of the Acts in the Ninth Schedule, and action taken thereon after February 27, 1967, involves a basic inconsistency. Counsel submitted that an Act cannot be both valid and invalid at the same time. He submitted that with a view to avoid chaos in the body politic the wheel of time was not reversed till the date of the Constitution First Amendment, but the majority of the Court still denied to the Parliament power to incorporate in the Ninth Schedule Acts and Regulations removed from the pale of judicial scrutiny on the plea that the fundamental rights of the people were infringed thereby. If that be the true effect of the judgment, said Mr. Setalwad, it must logically follow from the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.) that the Seventeenth Amendment has no validity after February 27, 1967. We are unable to agree with that interpretation for more reasons than one. The first and the most obvious is that the majority of the Court expressly held that by virtue of Art. 31(B) the Acts incorporated in the Ninth Schedule were not exposed to challenge on the ground that they infringed the fundamental rights of the people. The second is that even the Judges for whom Subba Rao, C.J. spoke did not accept the "doctrine of prospective overruling" in all its implications- as understood by the American Courts. They merely denied to the Parliament power after February 27, 1967 to amend the Constitution so as to take away any of the fundamental rights of the people, but amendments made prior to that date and action taken pursuant to the amendments, both before and after February 27, 1967, were not to be deemed invalid, on the ground that they infringed the guarantee of fundamental rights. That being the true effect of the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.), the petitioner cannot be permitted to challenge the validity of the action taken under the provisions of the Maharashtra Act of 1961 on the ground that the action had been taken after February 27, 1967.5. In a later judgment of this Court in State of Maharashtra etc. v. Madhavrao Damodar Patilchand &Ors. etc. ([1968] 3 S.C.R. 712) the validity of the Maharashtra Act 27 of 1961 as amended by Act 13 of 1962 was challenged and this Court upheld the validity of the Maharashtra Act 27 of 1961 as originally enacted -and also the amendment made by Act 13 of 1962.6.
### Response:
0
### Explanation:
In our judgment, that is not the effect of I. C. Golak Naths case([1967] 2 S.C.R. 762.). In that case Wanchoo, Bhargava and Mitter, JJ., held that the word law in Art. 13 (1) does not include any law in the nature of a constitutional provision, and Art. 13 (2) when it speaks of the State making any law, refers to the law made under the provisions contained in Ch. 1 of Part XI of the Constitution: it has no reference to the constituent power of amendment under Art. 368. Bachawat and Ramaswami, JJ., substantially agreed with that view. They therefore regarded all the Acts in the Ninth Schedule as beyond challenge on the plea that the Acts or provisions infringed any of the fundamental rights under Part III of theis clear from this analysis that the Court (except Hidayatullah, J., ) opined, though for different reasons, that the Acts incorporate in Seventeenth Amendment to the Constitution were not liable to be challenged as infringing the fundamental rights. Hidayatullah, J., was of the view that the challenge to the two Act-, which were impugned in that case was unsuccessful, because of the provisions of Arts. 31(1), (2), (2A), 31A(1) of the Constitution, Mr. Setalvad contended that this interpretation of the judgment of the Court in I. C. Golak Naths case([1967] 2 S.C.R. 762.) is in consistent with the basic concept of the "doctrine of prospective over-ruling" as enunciated in the Courts of its origin, and it must - on that account be held that, the Court intended to give effect to the traditional concept of the doctrine in all its implications. But Subba Rao, C.J., used the expression "doctrine of prospective overruling" as a convenient mode of describing the power which the Court exercised in I. C. Golak Naths case([1967] 2 S.C.R. 762.). He has not expressly or by implication sought to incorporate in the stream of our jurisprudence, "the doctrine of prospective overruling" in all its manifold implications as understood by the American Courts. Again, the ten Judges who agreed in upholding the Seventeenth Amendment were equally divided: five relied upon the "doctrine of prospective overruling": five upon the power of the Parliament to exclude from the pale of challenge the Acts and Regulations in the Ninth Schedule, notwithstanding that they infringe any of the fundamental rights in Part III of the Constitution. Mr. Setalvad contended that to uphold the validity of the Acts in the Ninth Schedule, and action taken thereon after February 27, 1967, involves a basic inconsistency. Counsel submitted that an Act cannot be both valid and invalid at the same time. He submitted that with a view to avoid chaos in the body politic the wheel of time was not reversed till the date of the Constitution First Amendment, but the majority of the Court still denied to the Parliament power to incorporate in the Ninth Schedule Acts and Regulations removed from the pale of judicial scrutiny on the plea that the fundamental rights of the people were infringed thereby. If that be the true effect of the judgment, said Mr. Setalwad, it must logically follow from the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.) that the Seventeenth Amendment has no validity after February 27, 1967. We are unable to agree with that interpretation for more reasons than one. The first and the most obvious is that the majority of the Court expressly held that by virtue of Art. 31(B) the Acts incorporated in the Ninth Schedule were not exposed to challenge on the ground that they infringed the fundamental rights of the people. The second is that even the Judges for whom Subba Rao, C.J. spoke did not accept the "doctrine of prospective overruling" in all its implications- as understood by the American Courts. They merely denied to the Parliament power after February 27, 1967 to amend the Constitution so as to take away any of the fundamental rights of the people, but amendments made prior to that date and action taken pursuant to the amendments, both before and after February 27, 1967, were not to be deemed invalid, on the ground that they infringed the guarantee of fundamental rights. That being the true effect of the judgment in I. C. Golak Naths case([1967] 2 S.C.R. 762.), the petitioner cannot be permitted to challenge the validity of the action taken under the provisions of the Maharashtra Act of 1961 on the ground that the action had been taken after February 27,a later judgment of this Court in State of Maharashtra etc. v. Madhavrao Damodar Patilchand &Ors. etc. ([1968] 3 S.C.R. 712) the validity of the Maharashtra Act 27 of 1961 as amended by Act 13 of 1962 was challenged and this Court upheld the validity of the Maharashtra Act 27 of 1961 as originally enacted -and also the amendment made by Act 13 of 1962.
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STATE OF HARYANA Vs. ISHWAR CHAND | 1. We have heard the learned counsels for the parties. 2. Leave granted. 3. The accused respondent had been convicted by the learned trial Court under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of L 2,000/-, in default, to under undergo further rigorous imprisonment for 30 days. In revision, the High Court has altered the conviction and held the accused respondent to be not guilty. The basis of the order of the High Court seems to be that the red chilli powder which was found to be adulterated was not meant for public sale but was kept for cooking/preparation of food in the eating place from where the sample was taken by the Food Inspector (complainant). Aggrieved, the State has come up in appeal. 4. The issue appears to be covered by the decision of this Court in The Food Inspector, Calicut Corporation v. Cherukattil Gopalan and another, AIR 1971 SC 1725 . Paragraphs 25 and 26 of the said report which deal with the issue are in the following terms: 25. To sum up we are in agreement with the decisions in AIR 1964 All 199 and AIR 1965 Mad 98 , to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under S.16(1)(a)(i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions. 26. Coming to the case on had, on the findings of the two Courts the sugar in question has been found to be adulterated. The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under Section 2(13) of the Act. Section 7 prohibits a person from selling adulterated article of food. Similarly, under Section 16(1)(a)(i) any person who sells adulterated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under Section 2(5) of the Act. We have already pointed out that sugar by itself is an article used as food or at any rate it is an article which ordinarily enters into or is used in the composition or preparation of human food. In this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the Courts that it was adulterated, the respondents have contravened Sections 7 and 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate. But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour. 5. From the above it is clear that sale of food item(s) meant for cooking/preparation of vegetables/food in an eating place to the Food Inspector would amount to sale under Section 2(xiii) of the Act. | 1[ds]4. The issue appears to be covered by the decision of this Court in The Food Inspector, Calicut Corporation v. Cherukattil Gopalan and another, AIR 1971 SC 1725 . Paragraphs 25 and 26 of the said report which deal with the issue are in the following terms:25. To sum up we are in agreement with the decisions in AIR 1964 All 199 and AIR 1965 Mad 98 , to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under S.16(1)(a)(i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions.26. Coming to the case on had, on the findings of the two Courts the sugar in question has been found to be adulterated. The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under Section 2(13) of the Act. Section 7 prohibits a person from selling adulterated article of food. Similarly, under Section 16(1)(a)(i) any person who sells adulterated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under Section 2(5) of the Act. We have already pointed out that sugar by itself is an article used as food or at any rate it is an article which ordinarily enters into or is used in the composition or preparation of human food. In this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the Courts that it was adulterated, the respondents have contravened Sections 7 and 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate. But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour.5. From the above it is clear that sale of food item(s) meant for cooking/preparation of vegetables/food in an eating place to the Food Inspector would amount to sale under Section 2(xiii) of the Act. | 1 | 750 | 567 | ### 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:
1. We have heard the learned counsels for the parties. 2. Leave granted. 3. The accused respondent had been convicted by the learned trial Court under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of L 2,000/-, in default, to under undergo further rigorous imprisonment for 30 days. In revision, the High Court has altered the conviction and held the accused respondent to be not guilty. The basis of the order of the High Court seems to be that the red chilli powder which was found to be adulterated was not meant for public sale but was kept for cooking/preparation of food in the eating place from where the sample was taken by the Food Inspector (complainant). Aggrieved, the State has come up in appeal. 4. The issue appears to be covered by the decision of this Court in The Food Inspector, Calicut Corporation v. Cherukattil Gopalan and another, AIR 1971 SC 1725 . Paragraphs 25 and 26 of the said report which deal with the issue are in the following terms: 25. To sum up we are in agreement with the decisions in AIR 1964 All 199 and AIR 1965 Mad 98 , to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under S.16(1)(a)(i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions. 26. Coming to the case on had, on the findings of the two Courts the sugar in question has been found to be adulterated. The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under Section 2(13) of the Act. Section 7 prohibits a person from selling adulterated article of food. Similarly, under Section 16(1)(a)(i) any person who sells adulterated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under Section 2(5) of the Act. We have already pointed out that sugar by itself is an article used as food or at any rate it is an article which ordinarily enters into or is used in the composition or preparation of human food. In this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the Courts that it was adulterated, the respondents have contravened Sections 7 and 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate. But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour. 5. From the above it is clear that sale of food item(s) meant for cooking/preparation of vegetables/food in an eating place to the Food Inspector would amount to sale under Section 2(xiii) of the Act.
### Response:
1
### Explanation:
4. The issue appears to be covered by the decision of this Court in The Food Inspector, Calicut Corporation v. Cherukattil Gopalan and another, AIR 1971 SC 1725 . Paragraphs 25 and 26 of the said report which deal with the issue are in the following terms:25. To sum up we are in agreement with the decisions in AIR 1964 All 199 and AIR 1965 Mad 98 , to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under S.16(1)(a)(i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions.26. Coming to the case on had, on the findings of the two Courts the sugar in question has been found to be adulterated. The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under Section 2(13) of the Act. Section 7 prohibits a person from selling adulterated article of food. Similarly, under Section 16(1)(a)(i) any person who sells adulterated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under Section 2(5) of the Act. We have already pointed out that sugar by itself is an article used as food or at any rate it is an article which ordinarily enters into or is used in the composition or preparation of human food. In this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the Courts that it was adulterated, the respondents have contravened Sections 7 and 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate. But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour.5. From the above it is clear that sale of food item(s) meant for cooking/preparation of vegetables/food in an eating place to the Food Inspector would amount to sale under Section 2(xiii) of the Act.
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Savita W/O.Santram Awate Vs. The State of Maharashtra, Through Secretary, Department of Agriculture and Animal Husbandry & Others | Oral Judgment: (R.V. Ghuge, J.)1. Rule. Rule made returnable forthwith and heard with consent of the parties.2. The petitioner is a hapless widow who has raised a short point for our consideration. Whether delay in filing a claim application under the Shetkari Janata Apghat Vima Yojana (meaning an Accident Insurance Scheme for agriculturists), can be condoned and whether such an application can be entertained by the concerned authorities 3. The petitioner married one Mr.Santram Awate, who was an owner of 3 acres of land out of Survey No.161 at Revenue village Ravalgaon in Tal.Sailu, Dist.Parbhani. The said Santram Awate shockingly died on 15/09/2009 due to a snake bite while working in his farm. The death certificate, police report and the inquest panchnama have been placed on record.4. The petitioner contends that she was in a state of shock, quite expectedly, owing to the death of her husband that took place within a period of less than 4 months from the date of her marriage. She was totally unaware about the existence of the Government Resolution dated 19/08/2004 in respect of the personal insurance policy referred above for the benefit of the farmers and their family members in the State of Maharashtra. It was only on 18/04/2011 that the petitioner was informed by one of her relatives about the existence of the said scheme. The circumstances of gathering knowledge of the said scheme are thus explained by the petitioner, who on the very next day, i.e. on 19/04/2011 approached the respondent No.3 Taluka Agricultural Officer, Sailu, Dist. Parbhani and submitted her claim in the prescribed manner. The said proposal was then forwarded by the respondent No.3 authority to the respondent No.5 United India Insurance Company Limited. However, on 01/07/2011, the respondent No.5 issued a communication to the petitioner and informed her that her claim had been rejected on the ground of delay. We find this reason to be the only reason for rejecting the claim of the petitioner.5. The concerned insurance scheme has been floated by way of financial assistance to the family members of the farmers in case of accidental death of farmers, obviously with the aim and object of reducing the rigours of the sudden loss of an earning hand and a person who indulged in cultivation of the land. The Government of Maharashtra, respondent No.1 herein, pays premium to the insurance company and the said insurance company, in turn, is to pay Rs.1,00,000/- to the family member of farmers in Maharashtra in case of accidental death of the insured.6. It is the contention of the petitioner that she is an illiterate widow and was totally ignorant about such a scheme as well as the limitation period prescribed by the said scheme. We find that on 04/12/2009, the respondent No.1 State published guidelines for the effective implementation of the said insurance scheme. Our attention is drawn to the said scheme, especially to Clause 20 (E)(4) on page No.40 of the said petition, which clearly states that though an application for insurance claim ought to be filed within 90 days after the death of the farmer, such an application would even be entertainable beyond the said 90 days, if such delay has been properly explained and justified. Needless to state, we find that the provision to condone delay exists under the said scheme. We have also gone though the policy of the insurance company which defines a farmer to mean, a registered farmer in Maharashtra as evidenced by the 7/12 extract." It is not disputed before us that the deceased husband of the petitioner was a farmer who owned 3 acres of land as stated above. An accident has been explained in the said scheme and death occurring on account of snake bite, scorpion bite, animal bite, rabies, any injury by any animal resulting in death or loss of limbs are considered to be the circumstances entitling payment of insurance.7. The respondents No.3 and 4 i.e. Tahsildar and the Taluka Agricultural Officer have filed their affidavit in reply and have stated that the policy for the year 2009-10 was valid from 15/08/2009 to 14/08/2010. It has been categorically stated that the death of the husband of the petitioner occurred on 15/09/2009 and the petitioner obtained the death certificate on 17/04/2011. She received the heir-ship certificate on 18/04/2011 and the death certificate issued by the Professor and Head, Forensic Medicine Department, Medical College and Hospital, Aurangabad on 11/04/2011. It emerges from the said affidavit that immediately thereafter the petitioner had filed an application for insurance on 19/04/2011. From these facts as they emerge before us, we find with circumspection that the delay caused on the part of the petitioner in filing the application for insurance, is well explained and justified and hence condoned. We are, therefore, convinced that the insurance company has adopted an insensitive and hyper technical approach in denying a hapless widow of the insurance amount which could be her lone source of solace in view of the death of her husband, which has occurred within 4 months of the marriage. Such an insensitive and technical approach would defeat the very purpose and object for which the State has introduced the said scheme. We, therefore, have no hesitation in concluding that the impugned order of rejection dated 01/07/2011 is unjustified and unsustainable. | 1[ds]4. The petitioner contends that she was in a state of shock, quite expectedly, owing to the death of her husband that took place within a period of less than 4 months from the date of her marriage. She was totally unaware about the existence of the Government Resolution dated 19/08/2004 in respect of the personal insurance policy referred above for the benefit of the farmers and their family members in the State of Maharashtra. It was only on 18/04/2011 that the petitioner was informed by one of her relatives about the existence of the said scheme. The circumstances of gathering knowledge of the said scheme are thus explained by the petitioner, who on the very next day, i.e. on 19/04/2011 approached the respondent No.3 Taluka Agricultural Officer, Sailu, Dist. Parbhani and submitted her claim in the prescribed manner. The said proposal was then forwarded by the respondent No.3 authority to the respondent No.5 United India Insurance Company Limited. However, on 01/07/2011, the respondent No.5 issued a communication to the petitioner and informed her that her claim had been rejected on the ground of delay.We find this reason to be the only reason for rejecting the claim of thefind that on 04/12/2009, the respondent No.1 State published guidelines for the effective implementation of the said insurance scheme. Our attention is drawn to the said scheme, especially to Clause 20 (E)(4) on page No.40 of the said petition, which clearly states that though an application for insurance claim ought to be filed within 90 days after the death of the farmer, such an application would even be entertainable beyond the said 90 days, if such delay has been properly explained and justified. Needless to state, we find that the provision to condone delay exists under the said scheme. We have also gone though the policy of the insurance company which defines a farmer to mean, a registered farmer in Maharashtra as evidenced by the 7/12 extract." It is not disputed before us that the deceased husband of the petitioner was a farmer who owned 3 acres of land as stated above. An accident has been explained in the said scheme and death occurring on account of snake bite, scorpion bite, animal bite, rabies, any injury by any animal resulting in death or loss of limbs are considered to be the circumstances entitling payment of insurance.From these facts as they emerge before us, we find with circumspection that the delay caused on the part of the petitioner in filing the application for insurance, is well explained and justified and hence condoned. We are, therefore, convinced that the insurance company has adopted an insensitive and hyper technical approach in denying a hapless widow of the insurance amount which could be her lone source of solace in view of the death of her husband, which has occurred within 4 months of the marriage. Such an insensitive and technical approach would defeat the very purpose and object for which the State has introduced the said scheme. We, therefore, have no hesitation in concluding that the impugned order of rejection dated 01/07/2011 is unjustified and unsustainable. | 1 | 970 | 573 | ### 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:
Oral Judgment: (R.V. Ghuge, J.)1. Rule. Rule made returnable forthwith and heard with consent of the parties.2. The petitioner is a hapless widow who has raised a short point for our consideration. Whether delay in filing a claim application under the Shetkari Janata Apghat Vima Yojana (meaning an Accident Insurance Scheme for agriculturists), can be condoned and whether such an application can be entertained by the concerned authorities 3. The petitioner married one Mr.Santram Awate, who was an owner of 3 acres of land out of Survey No.161 at Revenue village Ravalgaon in Tal.Sailu, Dist.Parbhani. The said Santram Awate shockingly died on 15/09/2009 due to a snake bite while working in his farm. The death certificate, police report and the inquest panchnama have been placed on record.4. The petitioner contends that she was in a state of shock, quite expectedly, owing to the death of her husband that took place within a period of less than 4 months from the date of her marriage. She was totally unaware about the existence of the Government Resolution dated 19/08/2004 in respect of the personal insurance policy referred above for the benefit of the farmers and their family members in the State of Maharashtra. It was only on 18/04/2011 that the petitioner was informed by one of her relatives about the existence of the said scheme. The circumstances of gathering knowledge of the said scheme are thus explained by the petitioner, who on the very next day, i.e. on 19/04/2011 approached the respondent No.3 Taluka Agricultural Officer, Sailu, Dist. Parbhani and submitted her claim in the prescribed manner. The said proposal was then forwarded by the respondent No.3 authority to the respondent No.5 United India Insurance Company Limited. However, on 01/07/2011, the respondent No.5 issued a communication to the petitioner and informed her that her claim had been rejected on the ground of delay. We find this reason to be the only reason for rejecting the claim of the petitioner.5. The concerned insurance scheme has been floated by way of financial assistance to the family members of the farmers in case of accidental death of farmers, obviously with the aim and object of reducing the rigours of the sudden loss of an earning hand and a person who indulged in cultivation of the land. The Government of Maharashtra, respondent No.1 herein, pays premium to the insurance company and the said insurance company, in turn, is to pay Rs.1,00,000/- to the family member of farmers in Maharashtra in case of accidental death of the insured.6. It is the contention of the petitioner that she is an illiterate widow and was totally ignorant about such a scheme as well as the limitation period prescribed by the said scheme. We find that on 04/12/2009, the respondent No.1 State published guidelines for the effective implementation of the said insurance scheme. Our attention is drawn to the said scheme, especially to Clause 20 (E)(4) on page No.40 of the said petition, which clearly states that though an application for insurance claim ought to be filed within 90 days after the death of the farmer, such an application would even be entertainable beyond the said 90 days, if such delay has been properly explained and justified. Needless to state, we find that the provision to condone delay exists under the said scheme. We have also gone though the policy of the insurance company which defines a farmer to mean, a registered farmer in Maharashtra as evidenced by the 7/12 extract." It is not disputed before us that the deceased husband of the petitioner was a farmer who owned 3 acres of land as stated above. An accident has been explained in the said scheme and death occurring on account of snake bite, scorpion bite, animal bite, rabies, any injury by any animal resulting in death or loss of limbs are considered to be the circumstances entitling payment of insurance.7. The respondents No.3 and 4 i.e. Tahsildar and the Taluka Agricultural Officer have filed their affidavit in reply and have stated that the policy for the year 2009-10 was valid from 15/08/2009 to 14/08/2010. It has been categorically stated that the death of the husband of the petitioner occurred on 15/09/2009 and the petitioner obtained the death certificate on 17/04/2011. She received the heir-ship certificate on 18/04/2011 and the death certificate issued by the Professor and Head, Forensic Medicine Department, Medical College and Hospital, Aurangabad on 11/04/2011. It emerges from the said affidavit that immediately thereafter the petitioner had filed an application for insurance on 19/04/2011. From these facts as they emerge before us, we find with circumspection that the delay caused on the part of the petitioner in filing the application for insurance, is well explained and justified and hence condoned. We are, therefore, convinced that the insurance company has adopted an insensitive and hyper technical approach in denying a hapless widow of the insurance amount which could be her lone source of solace in view of the death of her husband, which has occurred within 4 months of the marriage. Such an insensitive and technical approach would defeat the very purpose and object for which the State has introduced the said scheme. We, therefore, have no hesitation in concluding that the impugned order of rejection dated 01/07/2011 is unjustified and unsustainable.
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1
### Explanation:
4. The petitioner contends that she was in a state of shock, quite expectedly, owing to the death of her husband that took place within a period of less than 4 months from the date of her marriage. She was totally unaware about the existence of the Government Resolution dated 19/08/2004 in respect of the personal insurance policy referred above for the benefit of the farmers and their family members in the State of Maharashtra. It was only on 18/04/2011 that the petitioner was informed by one of her relatives about the existence of the said scheme. The circumstances of gathering knowledge of the said scheme are thus explained by the petitioner, who on the very next day, i.e. on 19/04/2011 approached the respondent No.3 Taluka Agricultural Officer, Sailu, Dist. Parbhani and submitted her claim in the prescribed manner. The said proposal was then forwarded by the respondent No.3 authority to the respondent No.5 United India Insurance Company Limited. However, on 01/07/2011, the respondent No.5 issued a communication to the petitioner and informed her that her claim had been rejected on the ground of delay.We find this reason to be the only reason for rejecting the claim of thefind that on 04/12/2009, the respondent No.1 State published guidelines for the effective implementation of the said insurance scheme. Our attention is drawn to the said scheme, especially to Clause 20 (E)(4) on page No.40 of the said petition, which clearly states that though an application for insurance claim ought to be filed within 90 days after the death of the farmer, such an application would even be entertainable beyond the said 90 days, if such delay has been properly explained and justified. Needless to state, we find that the provision to condone delay exists under the said scheme. We have also gone though the policy of the insurance company which defines a farmer to mean, a registered farmer in Maharashtra as evidenced by the 7/12 extract." It is not disputed before us that the deceased husband of the petitioner was a farmer who owned 3 acres of land as stated above. An accident has been explained in the said scheme and death occurring on account of snake bite, scorpion bite, animal bite, rabies, any injury by any animal resulting in death or loss of limbs are considered to be the circumstances entitling payment of insurance.From these facts as they emerge before us, we find with circumspection that the delay caused on the part of the petitioner in filing the application for insurance, is well explained and justified and hence condoned. We are, therefore, convinced that the insurance company has adopted an insensitive and hyper technical approach in denying a hapless widow of the insurance amount which could be her lone source of solace in view of the death of her husband, which has occurred within 4 months of the marriage. Such an insensitive and technical approach would defeat the very purpose and object for which the State has introduced the said scheme. We, therefore, have no hesitation in concluding that the impugned order of rejection dated 01/07/2011 is unjustified and unsustainable.
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Jabil Circuit India Private Limited Vs. Commissioner of Central Excise | to Tata Sky Limited (instead of the price charged by the assessee to Thomson India) in respect of the goods cleared during the period from 1st April 2007 to 23rd January 2008 should not be treated as the transaction value of the goods sold by the assessee to Thomson India under Rule 10A of the 2000 Rules and the duty be recovered accordingly. The assessee contested the show cause notice by filing a detailed reply. By an order-in-original dated 31st August 2009, the Adjudicating Authority held that the valuation of the goods sold by the assessee to Thomson India has to be determined as per rule 10A of the 2000 Rules and accordingly confirmed the demand of Rs.2.08 crores with interest under Section 11AB and imposed penalty under Section 11AC of the Central Excise Act, 1944.6. Challenging the aforesaid order, the assessee filed an appeal before the CESTAT with an application seeking waiver of predeposit and by the impugned order, the CESTAT directed the assessee to make predeposit of Rs.1 crore for entertaining the appeal. Challenging the aforesaid order, the present appeal is filed by the assessee.7. Mr.Shridharan, learned Senior Advocate appearing on behalf of the assessee submitted firstly that in the present case, the sale effected by the assessee is governed by the provisions contained in Section 4(1)(a) of the Act and, therefore, the transaction value alone should be the basis for determining the central excise duty liability. Secondly, Mr.Sridharan submitted that the assessee is neither a jobworker nor the assessee is manufacturing settop boxes on behalf of the Thomson India and, therefore, Rule 10A of 2000 Rules has no application in the present case. In support of the above contention, Mr.Sridharan relied upon a decision of the CESTAT Bangalore Bench in the case of Coromandel Paints Limited V/s. Commissioner of Central Excise reported in 2010 (260) E.L.T. 440 (TriBang) and a decision of this Court in the case of Hyva(India) Private Limited, being Central Excise Appeal No.150 of 2011 decided on 1st March 2012.8. Prima facie, we do not find merit in the aforesaid contentions. The first argument of the assessee is that in the present case the valuation of the set-top boxes manufactured and sold by the assessee are liable to be valued on the basis of transaction value under Section 4(1)(a) of the 1944 Act. Whether Section 4(1)(a) of the Act applies and whether the Adjudicating Authority was not justified in invoking Rule 10A of the 2000 Rules is a question to be decided at the hearing of the appeal.9. On the basis of the material on record, the Adjudicating Authority has arrived at a conclusion that the manufacture and sale of set-top boxes by the assessee to Thomson India is based on the terms and conditions contained in the Memorandum of Understanding arrived at between the parent company of the assessee and the parent company of Thomson India. The Adjudicating Authority has recorded a finding that the above Memorandum of Understanding was a manufacturing agreement for manufacture of set-top boxes under Trademark of Thomson and the raw materials / parts of the set-top boxes were required to be procured by the assessee from the vendors approved by the Thomson India as per the approved Vendor List. Under the said Memorandum of Understanding, the inputs requires in the manufacture of set-top boxes were classified into three categories, namely Thomson Control Parts, Key Components and the Manufacture Control Parts. The Adjudicating Authority has noticed that the approved Vendor List contains the inputs required in the manufacture of settop boxes. From the statements of the Purchase Manager, Business Unit Manager, Operational Manager and the General Manager of the assessee, the Adjudicating Authority has arrived at a conclusion that all parts required in the manufacture of set-top boxes were required to be purchased by the assessee from the vendors specified in the approved Vendors List received from Thomson India and that the assessee had no role to play in the preparation of the approved Vendors List. It is further recorded by the Adjudicating Authority that the price of the inputs supplied by the vendors is the price negotiated by the Thomson India. On the basis of the aforesaid statements, the Adjudicating Authority concluded that the price of the raw materials purchased by the assessee are controlled by the Thomson India and, therefore, Thomson India indirectly supplied the inputs to the assessee through its sister concerns set out in the approved Vendors List at the price controlled / approved by the Thomson India.10. In these circumstances, the prima facie view of the CESTAT that the Adjudicating Authority was justified in holding that Thomson India supplied the inputs to the assessee by persons authorized by Thomson India and, therefore, the assessee being a jobworker manufacturing goods on behalf of Thomson India would be covered under rule 10A of the 2000 Rules cannot be faulted.11. Strong reliance was placed by the counsel for the assessee on the Bangalore Bench decision of the CESTAT in the case of Coromandel Paints Limited (supra) and an unreported judgment of this Court in the case Hyva(India) Private Limited (Supra). In the present case, the specific finding recorded by the Adjudicating Authority is that the inputs were supplied to the assessee through the persons approved by the principal manufacturer and that the prices of the inputs were controlled by the principal manufacturer. No such facts were there in the aforesaid cases. Moreover, in the case of Hyva (India) Private Limited, there was a specific finding recorded (though prima facie) by the CESTAT that Rule 10A of 2000 Rules has no application to the facts of that case. Thus, the aforesaid two decisions do not support the case of the assessee.12. In these circumstances, the prima facie belief formed by the CESTAT that Rule 10A of 2000 Rules is applicable to the present case cannot be faulted. Accordingly, the predeposit ordered by the CESTAT cannot be faulted. In the result, we see no merit in the appeal and | 0[ds]8. Prima facie, we do not find merit in the aforesaid contentions. The first argument of the assessee is that in the present case the valuation of theboxes manufactured and sold by the assessee are liable to be valued on the basis of transaction value under Section 4(1)(a) of the 1944 Act. Whether Section 4(1)(a) of the Act applies and whether the Adjudicating Authority was not justified in invoking Rule 10A of the 2000 Rules is a question to be decided at the hearing of the appeal.9. On the basis of the material on record, the Adjudicating Authority has arrived at a conclusion that the manufacture and sale ofboxes by the assessee to Thomson India is based on the terms and conditions contained in the Memorandum of Understanding arrived at between the parent company of the assessee and the parent company of Thomson India. The Adjudicating Authority has recorded a finding that the above Memorandum of Understanding was a manufacturing agreement for manufacture ofboxes under Trademark of Thomson and the raw materials / parts of theboxes were required to be procured by the assessee from the vendors approved by the Thomson India as per the approved Vendor List. Under the said Memorandum of Understanding, the inputs requires in the manufacture ofboxes were classified into three categories, namely Thomson Control Parts, Key Components and the Manufacture Control Parts. The Adjudicating Authority has noticed that the approved Vendor List contains the inputs required in the manufacture of settop boxes. From the statements of the Purchase Manager, Business Unit Manager, Operational Manager and the General Manager of the assessee, the Adjudicating Authority has arrived at a conclusion that all parts required in the manufacture ofboxes were required to be purchased by the assessee from the vendors specified in the approved Vendors List received from Thomson India and that the assessee had no role to play in the preparation of the approved Vendors List. It is further recorded by the Adjudicating Authority that the price of the inputs supplied by the vendors is the price negotiated by the Thomson India. On the basis of the aforesaid statements, the Adjudicating Authority concluded that the price of the raw materials purchased by the assessee are controlled by the Thomson India and, therefore, Thomson India indirectly supplied the inputs to the assessee through its sister concerns set out in the approved Vendors List at the price controlled / approved by the Thomson India.10. In these circumstances, the prima facie view of the CESTAT that the Adjudicating Authority was justified in holding that Thomson India supplied the inputs to the assessee by persons authorized by Thomson India and, therefore, the assessee being a jobworker manufacturing goods on behalf of Thomson India would be covered under rule 10A of the 2000 Rules cannot bethe present case, the specific finding recorded by the Adjudicating Authority is that the inputs were supplied to the assessee through the persons approved by the principal manufacturer and that the prices of the inputs were controlled by the principal manufacturer. No such facts were there in the aforesaid cases. Moreover, in the case of Hyva (India) Private Limited, there was a specific finding recorded (though prima facie) by the CESTAT that Rule 10A of 2000 Rules has no application to the facts of that case. Thus, the aforesaid two decisions do not support the case of the assessee.12. In these circumstances, the prima facie belief formed by the CESTAT that Rule 10A of 2000 Rules is applicable to the present case cannot be faulted. Accordingly, the predeposit ordered by the CESTAT cannot be faulted. In the result, we see no merit in the appeal | 0 | 1,574 | 670 | ### 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:
to Tata Sky Limited (instead of the price charged by the assessee to Thomson India) in respect of the goods cleared during the period from 1st April 2007 to 23rd January 2008 should not be treated as the transaction value of the goods sold by the assessee to Thomson India under Rule 10A of the 2000 Rules and the duty be recovered accordingly. The assessee contested the show cause notice by filing a detailed reply. By an order-in-original dated 31st August 2009, the Adjudicating Authority held that the valuation of the goods sold by the assessee to Thomson India has to be determined as per rule 10A of the 2000 Rules and accordingly confirmed the demand of Rs.2.08 crores with interest under Section 11AB and imposed penalty under Section 11AC of the Central Excise Act, 1944.6. Challenging the aforesaid order, the assessee filed an appeal before the CESTAT with an application seeking waiver of predeposit and by the impugned order, the CESTAT directed the assessee to make predeposit of Rs.1 crore for entertaining the appeal. Challenging the aforesaid order, the present appeal is filed by the assessee.7. Mr.Shridharan, learned Senior Advocate appearing on behalf of the assessee submitted firstly that in the present case, the sale effected by the assessee is governed by the provisions contained in Section 4(1)(a) of the Act and, therefore, the transaction value alone should be the basis for determining the central excise duty liability. Secondly, Mr.Sridharan submitted that the assessee is neither a jobworker nor the assessee is manufacturing settop boxes on behalf of the Thomson India and, therefore, Rule 10A of 2000 Rules has no application in the present case. In support of the above contention, Mr.Sridharan relied upon a decision of the CESTAT Bangalore Bench in the case of Coromandel Paints Limited V/s. Commissioner of Central Excise reported in 2010 (260) E.L.T. 440 (TriBang) and a decision of this Court in the case of Hyva(India) Private Limited, being Central Excise Appeal No.150 of 2011 decided on 1st March 2012.8. Prima facie, we do not find merit in the aforesaid contentions. The first argument of the assessee is that in the present case the valuation of the set-top boxes manufactured and sold by the assessee are liable to be valued on the basis of transaction value under Section 4(1)(a) of the 1944 Act. Whether Section 4(1)(a) of the Act applies and whether the Adjudicating Authority was not justified in invoking Rule 10A of the 2000 Rules is a question to be decided at the hearing of the appeal.9. On the basis of the material on record, the Adjudicating Authority has arrived at a conclusion that the manufacture and sale of set-top boxes by the assessee to Thomson India is based on the terms and conditions contained in the Memorandum of Understanding arrived at between the parent company of the assessee and the parent company of Thomson India. The Adjudicating Authority has recorded a finding that the above Memorandum of Understanding was a manufacturing agreement for manufacture of set-top boxes under Trademark of Thomson and the raw materials / parts of the set-top boxes were required to be procured by the assessee from the vendors approved by the Thomson India as per the approved Vendor List. Under the said Memorandum of Understanding, the inputs requires in the manufacture of set-top boxes were classified into three categories, namely Thomson Control Parts, Key Components and the Manufacture Control Parts. The Adjudicating Authority has noticed that the approved Vendor List contains the inputs required in the manufacture of settop boxes. From the statements of the Purchase Manager, Business Unit Manager, Operational Manager and the General Manager of the assessee, the Adjudicating Authority has arrived at a conclusion that all parts required in the manufacture of set-top boxes were required to be purchased by the assessee from the vendors specified in the approved Vendors List received from Thomson India and that the assessee had no role to play in the preparation of the approved Vendors List. It is further recorded by the Adjudicating Authority that the price of the inputs supplied by the vendors is the price negotiated by the Thomson India. On the basis of the aforesaid statements, the Adjudicating Authority concluded that the price of the raw materials purchased by the assessee are controlled by the Thomson India and, therefore, Thomson India indirectly supplied the inputs to the assessee through its sister concerns set out in the approved Vendors List at the price controlled / approved by the Thomson India.10. In these circumstances, the prima facie view of the CESTAT that the Adjudicating Authority was justified in holding that Thomson India supplied the inputs to the assessee by persons authorized by Thomson India and, therefore, the assessee being a jobworker manufacturing goods on behalf of Thomson India would be covered under rule 10A of the 2000 Rules cannot be faulted.11. Strong reliance was placed by the counsel for the assessee on the Bangalore Bench decision of the CESTAT in the case of Coromandel Paints Limited (supra) and an unreported judgment of this Court in the case Hyva(India) Private Limited (Supra). In the present case, the specific finding recorded by the Adjudicating Authority is that the inputs were supplied to the assessee through the persons approved by the principal manufacturer and that the prices of the inputs were controlled by the principal manufacturer. No such facts were there in the aforesaid cases. Moreover, in the case of Hyva (India) Private Limited, there was a specific finding recorded (though prima facie) by the CESTAT that Rule 10A of 2000 Rules has no application to the facts of that case. Thus, the aforesaid two decisions do not support the case of the assessee.12. In these circumstances, the prima facie belief formed by the CESTAT that Rule 10A of 2000 Rules is applicable to the present case cannot be faulted. Accordingly, the predeposit ordered by the CESTAT cannot be faulted. In the result, we see no merit in the appeal and
### Response:
0
### Explanation:
8. Prima facie, we do not find merit in the aforesaid contentions. The first argument of the assessee is that in the present case the valuation of theboxes manufactured and sold by the assessee are liable to be valued on the basis of transaction value under Section 4(1)(a) of the 1944 Act. Whether Section 4(1)(a) of the Act applies and whether the Adjudicating Authority was not justified in invoking Rule 10A of the 2000 Rules is a question to be decided at the hearing of the appeal.9. On the basis of the material on record, the Adjudicating Authority has arrived at a conclusion that the manufacture and sale ofboxes by the assessee to Thomson India is based on the terms and conditions contained in the Memorandum of Understanding arrived at between the parent company of the assessee and the parent company of Thomson India. The Adjudicating Authority has recorded a finding that the above Memorandum of Understanding was a manufacturing agreement for manufacture ofboxes under Trademark of Thomson and the raw materials / parts of theboxes were required to be procured by the assessee from the vendors approved by the Thomson India as per the approved Vendor List. Under the said Memorandum of Understanding, the inputs requires in the manufacture ofboxes were classified into three categories, namely Thomson Control Parts, Key Components and the Manufacture Control Parts. The Adjudicating Authority has noticed that the approved Vendor List contains the inputs required in the manufacture of settop boxes. From the statements of the Purchase Manager, Business Unit Manager, Operational Manager and the General Manager of the assessee, the Adjudicating Authority has arrived at a conclusion that all parts required in the manufacture ofboxes were required to be purchased by the assessee from the vendors specified in the approved Vendors List received from Thomson India and that the assessee had no role to play in the preparation of the approved Vendors List. It is further recorded by the Adjudicating Authority that the price of the inputs supplied by the vendors is the price negotiated by the Thomson India. On the basis of the aforesaid statements, the Adjudicating Authority concluded that the price of the raw materials purchased by the assessee are controlled by the Thomson India and, therefore, Thomson India indirectly supplied the inputs to the assessee through its sister concerns set out in the approved Vendors List at the price controlled / approved by the Thomson India.10. In these circumstances, the prima facie view of the CESTAT that the Adjudicating Authority was justified in holding that Thomson India supplied the inputs to the assessee by persons authorized by Thomson India and, therefore, the assessee being a jobworker manufacturing goods on behalf of Thomson India would be covered under rule 10A of the 2000 Rules cannot bethe present case, the specific finding recorded by the Adjudicating Authority is that the inputs were supplied to the assessee through the persons approved by the principal manufacturer and that the prices of the inputs were controlled by the principal manufacturer. No such facts were there in the aforesaid cases. Moreover, in the case of Hyva (India) Private Limited, there was a specific finding recorded (though prima facie) by the CESTAT that Rule 10A of 2000 Rules has no application to the facts of that case. Thus, the aforesaid two decisions do not support the case of the assessee.12. In these circumstances, the prima facie belief formed by the CESTAT that Rule 10A of 2000 Rules is applicable to the present case cannot be faulted. Accordingly, the predeposit ordered by the CESTAT cannot be faulted. In the result, we see no merit in the appeal
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Union Of India Vs. Priyankan Sharan | and Ors.(AIR 1962 SC 847 ). 21. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981 ). 22. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842 ), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 23. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515 ). The legislative casus omissus cannot be supplied by judicial interpretative process.24. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".25. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."26. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur).28. The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ).29. As noted above, Clause 4(a) is subject to Clause 6 and the proviso appended to Clause 4 is in the nature of exception. The High Courts view is a rational one on the facts of each case. These are not the cases where any interference is called for. | 0[ds]23. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515 ). The legislative casus omissus cannot be supplied by judicial interpretative process.24. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".25. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."26. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur).28. The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ).29. As noted above, Clause 4(a) is subject to Clause 6 and the proviso appended to Clause 4 is in the nature of exception. The High Courts view is a rational one on the facts of each case. These are not the cases where any interference is called for. | 0 | 3,812 | 996 | ### 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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and Ors.(AIR 1962 SC 847 ). 21. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981 ). 22. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842 ), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 23. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515 ). The legislative casus omissus cannot be supplied by judicial interpretative process.24. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".25. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."26. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur).28. The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ).29. As noted above, Clause 4(a) is subject to Clause 6 and the proviso appended to Clause 4 is in the nature of exception. The High Courts view is a rational one on the facts of each case. These are not the cases where any interference is called for.
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23. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515 ). The legislative casus omissus cannot be supplied by judicial interpretative process.24. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".25. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."26. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur).28. The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672 ).29. As noted above, Clause 4(a) is subject to Clause 6 and the proviso appended to Clause 4 is in the nature of exception. The High Courts view is a rational one on the facts of each case. These are not the cases where any interference is called for.
|
Binoy Kumar Chatterjee Vs. M/S Jugantar Ltd. And Others | that it would enure for a period of twelve months only. The case of the workman, however, was that the further employment given to him after December 1, 1976 was in reality a continuation of the previous employment and therefore the termination should be taken to be effective from December 1, 1977, and should be regarded as retrenchment. The Labour Court repelled the contention of the workman and held that he had actually retired from service with effect from December 1, 1976, on reaching the age of superannuation and had received his gratuity and Provident Fund. The Labour Court found that the workman had entered into a fresh agreement with the employer under which he was given employment for twelve months, that the contract was duly signed by the petitioner with full knowledge of its contents and consequences and was binding on him, and that on the expiry of the stipulate twelve months the petitioner had automatically ceased to be in service. Accordingly, the Labour Court refused the relief of reinstatement claimed by the petitioner and observed that the case could not be treated as one of retrenchment.Two contentions have been raised before us by learned counsel for the petitioner. Learned counsel urges that there was no binding provision fixing the age of superannuation, and that the provision in the Standing Orders observed by the employer was not sanctioned by any entry in the Schedule to the Industrial Employment (Standing Orders) Act, 1 946. It is contended that consequently the petitioner must be deemed to have continued in service throughout, and the cesser of his service with effect from December 1, 1977 must be regarded as a unilateral termination of service by the employer. We find no substance in the contention. The respondent employer is a newspaper establishment, and Section 14 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 provides that the provisions of t he Industrial Employment (Standing Orders) Act, 1946, as in force for the time being, will apply to every newspaper establishment. The Bengal Industrial Employment (Standing Orders) Rules, 1946 were amended by the State Government by a notification dated October 14, 1946, and Rule 2A directed that matters relating to superannuation would be additional matters included in the Schedule to the Industrial Employment (Standing Orders) Act, 1946, In the result the Standing Order drawn up and applied by the respondent providing for retirement on reaching the age of superannuation fell within the scope of its powers. The relevant Standing Order provided that a working journalist would retire at the age of 60 years. There can be no dispute that on attaining that age the petitioners services ceased, and nothing more was required. In fact, in acceptance of that position he drew his gratuity and provident fund dues. His subsequent service arose on a fresh contract, and we are clearly of the view that it, cannot be regarded as a continuation of the original service.The other contention of learned counsel for the petitioner is that the petitioners service on the expiry of twelve months, on December 1, 1977, did not come to an end in law, because the conditions of Section 25 of the Industrial Disputes Act, 1947 had not been complied with by the respondent employer. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under the employer shall be retrenched by the employer until the workman has been given the requisite notice in writing and has been paid at the time of retrenchment, compensation at the specified rate a nd also that notice in the prescribed manner is served on the appropriate Government or authority. Section 25F applies where a workman is retrenched. The petitioner contends that even though he was employed under a fresh contract after December 1, 1 976 he was in continuous service thereafter for not less than one year and must be regarded therefore as having been retrenched on December 1, 1977. Our attention is drawn to the definition of the expression "retrenchment" in Section 2(00) of the Industrial Disputes Act. It reads:2(00):-"retrenchment" means the termination by the employer of the service of a workman form any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-(a) voluntary retirement of the workman: or (b) (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(c) termination of the service of a workman on the ground of continued ill-health ;"4. It is urged that in view of the law laid down by this Court in State Bank of India v. Shri N. Sundara Money, (1) Hindus tan Steel Limited v. The Presiding Officer Labour Court Orissa and Ors., (2) Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee & Ors.(3) and Surendra Kumar Verma & Others v. Central Govt. Industrial Tribunal-Cum-Labour Court, New Delhi and Anr., (4) the words "termination by the employer of the service of a workman for any reason whatsoever" in the definition of the expression "retrenchment" covers every kind of termination of service except that expressly exclude d by the definition. In our judgment none of those cases can be construed as authority governing the present case. In all those cases the question arose on a termination of the workmans services at a point of time when the age of superannuation had not yet been reached. The age of superannuation marks the end point of the workmans service. If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression "retrenchment". We are of the view that the termination of the petitioners service on the expiry of the period of his contract on December 1, 1977 does not fall with in the expression "retrenchment" in Section 2(00) of the Industrial Disputes Act. Th | 0[ds]4. It is urged that in view of the law laid down by this Court in State Bank of India v. Shri N. Sundara Money, (1) Hindus tan Steel Limited v. The Presiding Officer Labour Court Orissa and Ors., (2) Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee & Ors.(3) and Surendra Kumar Verma & Others v. Central Govt. IndustrialCourt, New Delhi and Anr., (4) the words "termination by the employer of the service of a workman for any reason whatsoever" in the definition of the expression "retrenchment" covers every kind of termination of service except that expressly exclude d by the definition. In our judgment none of those cases can be construed as authority governing the present case. In all those cases the question arose on a termination of the workmans services at a point of time when the age of superannuation had not yet been reached. The age of superannuation marks the end point of the workmans service. If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression "retrenchment". We are of the view that the termination of the petitioners service on the expiry of the period of his contract on December 1, 1977 does not fall with in the expression "retrenchment" in Section 2(00) of the Industrial Disputesfind no substance in the contention. The respondent employer is a newspaper establishment, and Section 14 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 provides that the provisions of t he Industrial Employment (Standing Orders) Act, 1946, as in force for the time being, will apply to every newspaper establishment. The Bengal Industrial Employment (Standing Orders) Rules, 1946 were amended by the State Government by a notification dated October 14, 1946, and Rule 2A directed that matters relating to superannuation would be additional matters included in the Schedule tothe Industrial Employment (Standing Orders) Act, 1946, In the result the Standing Order drawn up and applied by the respondent providing for retirement on reaching the age of superannuation fell within the scope of its powers. The relevant Standing Order provided that a working journalist would retire at the age of 60 years. There can be no dispute that on attaining that age the petitioners services ceased, and nothing more was required. In fact, in acceptance of that position he drew his gratuity and provident fund dues. His subsequent service arose on a fresh contract, and we are clearly of the view that it, cannot be regarded as a continuation of the original service.The other contention of learned counsel for the petitioner is that the petitioners service on the expiry of twelve months, on December 1, 1977, did not come to an end in law, because the conditions of Section 25 ofthe Industrial Disputes Act, 1947 had not been complied with by the respondent employer. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under the employer shall be retrenched by the employer until the workman has been given the requisite notice in writing and has been paid at the time of retrenchment, compensation at the specified rate a nd also that notice in the prescribed manner is served on the appropriate Government or authority. Section 25F applies where a workman is retrenched. The petitioner contends that even though he was employed under a fresh contract after December 1, 1 976 he was in continuous service thereafter for not less than one year and must be regarded therefore as having been retrenched on December 1, 1977 | 0 | 1,538 | 685 | ### Instruction:
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that it would enure for a period of twelve months only. The case of the workman, however, was that the further employment given to him after December 1, 1976 was in reality a continuation of the previous employment and therefore the termination should be taken to be effective from December 1, 1977, and should be regarded as retrenchment. The Labour Court repelled the contention of the workman and held that he had actually retired from service with effect from December 1, 1976, on reaching the age of superannuation and had received his gratuity and Provident Fund. The Labour Court found that the workman had entered into a fresh agreement with the employer under which he was given employment for twelve months, that the contract was duly signed by the petitioner with full knowledge of its contents and consequences and was binding on him, and that on the expiry of the stipulate twelve months the petitioner had automatically ceased to be in service. Accordingly, the Labour Court refused the relief of reinstatement claimed by the petitioner and observed that the case could not be treated as one of retrenchment.Two contentions have been raised before us by learned counsel for the petitioner. Learned counsel urges that there was no binding provision fixing the age of superannuation, and that the provision in the Standing Orders observed by the employer was not sanctioned by any entry in the Schedule to the Industrial Employment (Standing Orders) Act, 1 946. It is contended that consequently the petitioner must be deemed to have continued in service throughout, and the cesser of his service with effect from December 1, 1977 must be regarded as a unilateral termination of service by the employer. We find no substance in the contention. The respondent employer is a newspaper establishment, and Section 14 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 provides that the provisions of t he Industrial Employment (Standing Orders) Act, 1946, as in force for the time being, will apply to every newspaper establishment. The Bengal Industrial Employment (Standing Orders) Rules, 1946 were amended by the State Government by a notification dated October 14, 1946, and Rule 2A directed that matters relating to superannuation would be additional matters included in the Schedule to the Industrial Employment (Standing Orders) Act, 1946, In the result the Standing Order drawn up and applied by the respondent providing for retirement on reaching the age of superannuation fell within the scope of its powers. The relevant Standing Order provided that a working journalist would retire at the age of 60 years. There can be no dispute that on attaining that age the petitioners services ceased, and nothing more was required. In fact, in acceptance of that position he drew his gratuity and provident fund dues. His subsequent service arose on a fresh contract, and we are clearly of the view that it, cannot be regarded as a continuation of the original service.The other contention of learned counsel for the petitioner is that the petitioners service on the expiry of twelve months, on December 1, 1977, did not come to an end in law, because the conditions of Section 25 of the Industrial Disputes Act, 1947 had not been complied with by the respondent employer. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under the employer shall be retrenched by the employer until the workman has been given the requisite notice in writing and has been paid at the time of retrenchment, compensation at the specified rate a nd also that notice in the prescribed manner is served on the appropriate Government or authority. Section 25F applies where a workman is retrenched. The petitioner contends that even though he was employed under a fresh contract after December 1, 1 976 he was in continuous service thereafter for not less than one year and must be regarded therefore as having been retrenched on December 1, 1977. Our attention is drawn to the definition of the expression "retrenchment" in Section 2(00) of the Industrial Disputes Act. It reads:2(00):-"retrenchment" means the termination by the employer of the service of a workman form any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-(a) voluntary retirement of the workman: or (b) (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(c) termination of the service of a workman on the ground of continued ill-health ;"4. It is urged that in view of the law laid down by this Court in State Bank of India v. Shri N. Sundara Money, (1) Hindus tan Steel Limited v. The Presiding Officer Labour Court Orissa and Ors., (2) Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee & Ors.(3) and Surendra Kumar Verma & Others v. Central Govt. Industrial Tribunal-Cum-Labour Court, New Delhi and Anr., (4) the words "termination by the employer of the service of a workman for any reason whatsoever" in the definition of the expression "retrenchment" covers every kind of termination of service except that expressly exclude d by the definition. In our judgment none of those cases can be construed as authority governing the present case. In all those cases the question arose on a termination of the workmans services at a point of time when the age of superannuation had not yet been reached. The age of superannuation marks the end point of the workmans service. If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression "retrenchment". We are of the view that the termination of the petitioners service on the expiry of the period of his contract on December 1, 1977 does not fall with in the expression "retrenchment" in Section 2(00) of the Industrial Disputes Act. Th
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4. It is urged that in view of the law laid down by this Court in State Bank of India v. Shri N. Sundara Money, (1) Hindus tan Steel Limited v. The Presiding Officer Labour Court Orissa and Ors., (2) Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee & Ors.(3) and Surendra Kumar Verma & Others v. Central Govt. IndustrialCourt, New Delhi and Anr., (4) the words "termination by the employer of the service of a workman for any reason whatsoever" in the definition of the expression "retrenchment" covers every kind of termination of service except that expressly exclude d by the definition. In our judgment none of those cases can be construed as authority governing the present case. In all those cases the question arose on a termination of the workmans services at a point of time when the age of superannuation had not yet been reached. The age of superannuation marks the end point of the workmans service. If he is employed afresh thereafter for a term, such employment cannot be regarded as employment contemplated within the definition of the expression "retrenchment". We are of the view that the termination of the petitioners service on the expiry of the period of his contract on December 1, 1977 does not fall with in the expression "retrenchment" in Section 2(00) of the Industrial Disputesfind no substance in the contention. The respondent employer is a newspaper establishment, and Section 14 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 provides that the provisions of t he Industrial Employment (Standing Orders) Act, 1946, as in force for the time being, will apply to every newspaper establishment. The Bengal Industrial Employment (Standing Orders) Rules, 1946 were amended by the State Government by a notification dated October 14, 1946, and Rule 2A directed that matters relating to superannuation would be additional matters included in the Schedule tothe Industrial Employment (Standing Orders) Act, 1946, In the result the Standing Order drawn up and applied by the respondent providing for retirement on reaching the age of superannuation fell within the scope of its powers. The relevant Standing Order provided that a working journalist would retire at the age of 60 years. There can be no dispute that on attaining that age the petitioners services ceased, and nothing more was required. In fact, in acceptance of that position he drew his gratuity and provident fund dues. His subsequent service arose on a fresh contract, and we are clearly of the view that it, cannot be regarded as a continuation of the original service.The other contention of learned counsel for the petitioner is that the petitioners service on the expiry of twelve months, on December 1, 1977, did not come to an end in law, because the conditions of Section 25 ofthe Industrial Disputes Act, 1947 had not been complied with by the respondent employer. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under the employer shall be retrenched by the employer until the workman has been given the requisite notice in writing and has been paid at the time of retrenchment, compensation at the specified rate a nd also that notice in the prescribed manner is served on the appropriate Government or authority. Section 25F applies where a workman is retrenched. The petitioner contends that even though he was employed under a fresh contract after December 1, 1 976 he was in continuous service thereafter for not less than one year and must be regarded therefore as having been retrenched on December 1, 1977
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Krishna Murari Aggarwala Vs. The Union Of India & Ors | the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the first instance by Mr. S. K. D. Mathur who was full-fledged District Magistrate on November 8. 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13. 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds. but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed by him there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is not possible to determine as to who in fact made the order of detention.6. It is true that the Court cannot go behind the subjective satisfaction of the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly.ln Khudiram Das v. State of West Bengal, AIR 1975 SC 550 = (1975 Cri LJ 446) this Court made the following observations:"The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad."In the instant case, in view of the contradictory stand taken bv the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention stands vitiated.7. Section 3(1) of the Act runs thus :"3. (1) The Central Government or the State Government may.-(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to-(i) the defence of India, the relations of India with foreign powers, or the security of India, or(ii) the security of the State or the maintenance of public order, or(iii) the maintenance of supplies and services essential to the community, or(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India;it is necessary so to do, make an order directing that such person be detained."This power can also be exercised by the officers mentioned in sub-section (2), and in the instant case we are concerned with the District Magistrate. The words "make an order directing that such person be detained" clearly postulate three conditions- (i) that the order must be made by the authority mentioned in Section 3: (ii) the order must be duly signed by, the said authority and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based an grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the question of mala fides in the instant case, it is not necessary for us to decide the same in the view we take in this case and that is why it was not seriously pressed by Mr. Asoke Sen in the course of his arguments before us. | 1[ds]We cannot, however, leave this matter without expressing our strong disapprobation on the careless and irresponsible manner in which the counter affidavit has been filed by the respondents. particularly by Mr. S. K. D. Mathur who happened to be the then District Magistrate, Badaun.We hope the Government will be careful in future and see that such incorrect affidavits are not filed before this Court, which may create unnecessary confusion and controversy and make a simple issue so very muchare not, however, concerned with the business at Bareilly in thisthese grounds it would appear that there is no allegation by the detaining authority that by storing the huge quantity of light diesel oil the petitioner had in any way affected the distribution or sale of that commodity, nor is there any allegation to show that the petitioner had refused to sell light diesel oil to anybody who required it. The High Court who was moved in the first instance for a writ of habeas corpus appears to have drawn on inference based purely on speculation that the petitioner had transferred huge quantities of light diesel oil from his depot at Badaun to his godown at Ujhani. There is, however, no material on the basis of which the High Court could have drawn such an inference. There is, however, no suggestion, far less any allegation, in these grounds that the petitioner had tried to divert his stocks of light diesel oil from Badaun to Ujhani and thereby deprived the people of Badaun of their share of the light diesel oil. In these circumstances, therefore, we are satisfied that there is absolutely no correlation between the act of the petitioner and the disruption of distribution of the essential supplies to theare, however, unable to agree with thisis also admitted in the ground itself that a complaint had been lodged in the Court of the Chief Judicial Magistrate against the petitioner for the storage. We have already held in several cases that the commission of an offence at a private place or a violation of a provision of law by itself does not attract the Act unless by the act committed by the petitioner the essential supplies to the community are disrupted or even flow of the life of the community is disrupted. Reading grounds (1) (a) and (b) we are unable to hold that they are in any way germane or relevant to the disruption of maintenance of essential supplies to theratio of this case fully tallies with the facts of the present case where also grounds (1) (a) and (b) taken at their face value appear to be irrelevant and do not disclose any causal connection with the disruption of the essential supplies to thefind it impossible to believe that the petitioner would consume such a huge quantity of light diesel oil for his personal agricultural farms particularly when the petitioner had given no details of the number of farms and power machines for which this oil was said to be used. In these circumstances there can be no doubt that these were fictitious sales made by the petitioner with a view to hoard light diesel oil and by his conduct the persons who were in genuine need of light diesel oil were deprived of the same. Ground No. 2. therefore, is quite specific, but the difficulty is that in view of our finding that ground No.(1) is irrelevant it is not possible to determine as to what extent the subjective satisfaction of the detaining authority was influenced or affected by Ground No. (1) which has been found by us to be extraneous and irrelevant. It has been held by us in several cases that where out of two grounds one around is vague or irrelevant, then the entire order of detention falls to the ground. In this view of the matter the order of detention suffers from this serious infirmity and must bebegin with it is not clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds. In the second place the grounds appear to have been served by Mr. R. C. Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining authority also. On a consideration of these two points we are of the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail. Coming to the first point we find that Mr. S. K. D. Mathur has clearly alleged in his counter-affidavit that Mr. R. C. Arora the permanent District Magistrate of Badaun had proceeded on leave from October 21. 1974 to November 11, 1974 and during his absence the deponent S. K. D. Mathur was acting as the District Magistrate of Badaun. It is further stated in the affidavit that Mr. R C. Arora rejoined his duty on November 12, 1974 and took charge of his office. The order of detention, however, appears to have been passed while Mr. S.K.D. Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes no secret of the fact that the order of detention was passed by him after being satisfied of the grounds ofwould thus appear from this averment that the order of detention was not passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the first instance by Mr. S. K. D. Mathur who was full-fledged District Magistrate on November 8. 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13. 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds. but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed by him there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is not possible to determine as to who in fact made the order of detention.6. It is true that the Court cannot go behind the subjective satisfaction of the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly andthe instant case, in view of the contradictory stand taken bv the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention standsthe instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based an grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the question of mala fides in the instant case, it is not necessary for us to decide the same in the view we take in this case and that is why it was not seriously pressed by Mr. Asoke Sen in the course of his arguments before us. | 1 | 4,785 | 1,681 | ### Instruction:
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the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the first instance by Mr. S. K. D. Mathur who was full-fledged District Magistrate on November 8. 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13. 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds. but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed by him there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is not possible to determine as to who in fact made the order of detention.6. It is true that the Court cannot go behind the subjective satisfaction of the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly.ln Khudiram Das v. State of West Bengal, AIR 1975 SC 550 = (1975 Cri LJ 446) this Court made the following observations:"The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad."In the instant case, in view of the contradictory stand taken bv the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention stands vitiated.7. Section 3(1) of the Act runs thus :"3. (1) The Central Government or the State Government may.-(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to-(i) the defence of India, the relations of India with foreign powers, or the security of India, or(ii) the security of the State or the maintenance of public order, or(iii) the maintenance of supplies and services essential to the community, or(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India;it is necessary so to do, make an order directing that such person be detained."This power can also be exercised by the officers mentioned in sub-section (2), and in the instant case we are concerned with the District Magistrate. The words "make an order directing that such person be detained" clearly postulate three conditions- (i) that the order must be made by the authority mentioned in Section 3: (ii) the order must be duly signed by, the said authority and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based an grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the question of mala fides in the instant case, it is not necessary for us to decide the same in the view we take in this case and that is why it was not seriously pressed by Mr. Asoke Sen in the course of his arguments before us.
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the detaining authority was influenced or affected by Ground No. (1) which has been found by us to be extraneous and irrelevant. It has been held by us in several cases that where out of two grounds one around is vague or irrelevant, then the entire order of detention falls to the ground. In this view of the matter the order of detention suffers from this serious infirmity and must bebegin with it is not clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds. In the second place the grounds appear to have been served by Mr. R. C. Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining authority also. On a consideration of these two points we are of the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail. Coming to the first point we find that Mr. S. K. D. Mathur has clearly alleged in his counter-affidavit that Mr. R. C. Arora the permanent District Magistrate of Badaun had proceeded on leave from October 21. 1974 to November 11, 1974 and during his absence the deponent S. K. D. Mathur was acting as the District Magistrate of Badaun. It is further stated in the affidavit that Mr. R C. Arora rejoined his duty on November 12, 1974 and took charge of his office. The order of detention, however, appears to have been passed while Mr. S.K.D. Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes no secret of the fact that the order of detention was passed by him after being satisfied of the grounds ofwould thus appear from this averment that the order of detention was not passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the first instance by Mr. S. K. D. Mathur who was full-fledged District Magistrate on November 8. 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13. 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds. but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed by him there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is not possible to determine as to who in fact made the order of detention.6. It is true that the Court cannot go behind the subjective satisfaction of the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly andthe instant case, in view of the contradictory stand taken bv the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention standsthe instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based an grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the question of mala fides in the instant case, it is not necessary for us to decide the same in the view we take in this case and that is why it was not seriously pressed by Mr. Asoke Sen in the course of his arguments before us.
|
The Commissioner of Income Tax Vs. Vir Vikram Vaid | as the said concern)] or any payment by any such Company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the Company in either case possesses accumulated profits; but "dividend" does not include—(i) a distribution made in accordance with sub-clause (c) or sub-clause (d) in respect of any share issued for full cash consideration, where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets ;(ia) a distribution made in accordance with sub-clause (c) or sub-clause (d) in so far as such distribution is attributable to the capitalized profits of the company representing bonus shares allotted to its equity shareholders after the 31st day of March, 1964, [and before the 1st day of April, 1965](ii) any advance or loan made to a shareholder [or the said concern] by a company in the ordinary course of its business, where the lending of money is a substantial part of the business of the company;(iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of sub-clause (e), to the extent to which it is so set off;(iv) any payment made by a company on purchase of its own shares from a shareholder in accordance with the provisions of section of the Companies Act, 1956 (1 of 1956);(v) any distribution of shares pursuant to a demerger by the resulting company to the shareholders of the demerged company (whether or not there is a reduction of capital in the demerged company).6. To effectively adjudicate upon the issue before us it will be convenient to refer the assessment order dated 2.2.2009 itself prior to dealing with the impugned order. The Assessing Officer holds that the amount of Rs.2.51 crores was paid on behalf of the assessee and relied upon inter alia on a decision of the Calcutta High Court in the case of Mr.M.D. Jindal Vs. CIT 164 ITR 28 . It states that any payment referred to in section 2(22)(e) also covers value of goods and services provided by the Company to its share holders. Alternatively, the Assessing Officer held that the amount of Rs.2.51 crores be treated as a perquisite which includes value of any benefit by Company to the employee who is the Director thereof and/or by Company, who has substantial interest in it. Thus, the case against the Respondent was two fold, one that amount of Rs.2.51 crores was deemed dividend and secondly, that the amount constituted a perquisite.7. In appeal, the Commissioner of Income Tax in his order 10.11.2009 also noted a submission of the Respondent that he had leased out the premises to the Company on rent which was lower than the prevailing market rate with a clear understanding that all expenditure for its upkeep and improvement, if any, would be fully spent by the Company since the Appellant had stopped his own business activities. According to the CIT (Appeals) the Respondent failed to substantiate the said claim and held that all conditions provided under section 2(22)(e) for deemed dividend was satisfied. In appeal, the tribunal concluded that the payment was not deemed dividend. The tribunal also held that the amount was also not perquisite and accordingly the Appellants case under section 17(2) is also not sustainable.8. In the present appeal, the challenge is restricted to the tribunals findings that the Respondents case is not covered under section 2(22)(e). There is no challenge to the findings qua disallowance of the Appellants case that the amount was a perquisite. Analysis of section 2(22)(e) would reveal that in order attract the provisions of sub-section (22) the payment made by the Company must be by way of advance or loan to the share holder who is entitled to the shares which do not carry a fixed rate of dividend with or without a right to participate or a payment to him for his individual benefit. The payment should be for the individual benefit of such share holder and it would be restricted to accumulated profits of the Company.9. In the present case, no money has been paid to the Respondent by way of advance or loan nor was any payment made for his individual benefit. The fact that the Company has spent money has not been called into question. Thus, it is deemed that the Company did spent Rs.2.51 crores towards repair and renovation on the premises owned by the Respondent. There is no dispute about the fact that the Company had taken rent on the aforesaid premises. Thus, it is case where the asset of the Respondent may have enhanced in value by virtue of repairs and renovation in respect of which it cannot be brought within definition of the advance or loan to the Respondent. Nor can it be treated as payment by the Company on behalf of the Respondent share holder or for the individual benefit of such share holder.10. To hold so would be merely presumption which is not warranted in the facts of the present case. Accordingly, the order of the tribunal cannot be faulted.11. The challenge being restricted to the issue of dividend alone it is not necessary to consider the contention pertaining that the amount as perquisite. Moreover, in the case of Income Tax Appeal No.114 of 2012 and other group of appeals this court has vide the judgment dated July 4, 2014 to which one of us (S.C. Dharmadhikari, J.) was a party has already held that where the recipient is not the share holder of the lender Company such case of a deemed dividend does not arise and such appeals are to stand dismissed since they do not raise any substantial question of law. We have, however, considered the facts of the present case in detail being slightly different nature in the facts of the case in Income Tax Appeal No.114 of 2012. | 0[ds]6. To effectively adjudicate upon the issue before us it will be convenient to refer the assessment order dated 2.2.2009 itself prior to dealing with the impugned order. The Assessing Officer holds that the amount of Rs.2.51 crores was paid on behalf of the assessee and relied upon inter alia on a decision of the Calcutta High Court in the case of Mr.M.D. Jindal Vs. CIT 164 ITR 28 . It states that any payment referred to in section 2(22)(e) also covers value of goods and services provided by the Company to its share holders. Alternatively, the Assessing Officer held that the amount of Rs.2.51 crores be treated as a perquisite which includes value of any benefit by Company to the employee who is the Director thereof and/or by Company, who has substantial interest in it. Thus, the case against the Respondent was two fold, one that amount of Rs.2.51 crores was deemed dividend and secondly, that the amount constituted a perquisite.7. In appeal, the Commissioner of Income Tax in his order 10.11.2009 also noted a submission of the Respondent that he had leased out the premises to the Company on rent which was lower than the prevailing market rate with a clear understanding that all expenditure for its upkeep and improvement, if any, would be fully spent by the Company since the Appellant had stopped his own business activities. According to the CIT (Appeals) the Respondent failed to substantiate the said claim and held that all conditions provided under section 2(22)(e) for deemed dividend was satisfied. In appeal, the tribunal concluded that the payment was not deemed dividend. The tribunal also held that the amount was also not perquisite and accordingly the Appellants case under section 17(2) is also not sustainable.8. In the present appeal, the challenge is restricted to the tribunals findings that the Respondents case is not covered under section 2(22)(e). There is no challenge to the findings qua disallowance of the Appellants case that the amount was a perquisite. Analysis of section 2(22)(e) would reveal that in order attract the provisions of(22) the payment made by the Company must be by way of advance or loan to the share holder who is entitled to the shares which do not carry a fixed rate of dividend with or without a right to participate or a payment to him for his individual benefit. The payment should be for the individual benefit of such share holder and it would be restricted to accumulated profits of the Company.9. In the present case, no money has been paid to the Respondent by way of advance or loan nor was any payment made for his individual benefit. The fact that the Company has spent money has not been called into question. Thus, it is deemed that the Company did spent Rs.2.51 crores towards repair and renovation on the premises owned by the Respondent. There is no dispute about the fact that the Company had taken rent on the aforesaid premises. Thus, it is case where the asset of the Respondent may have enhanced in value by virtue of repairs and renovation in respect of which it cannot be brought within definition of the advance or loan to the Respondent. Nor can it be treated as payment by the Company on behalf of the Respondent share holder or for the individual benefit of such share holder.10. To hold so would be merely presumption which is not warranted in the facts of the present case. Accordingly, the order of the tribunal cannot be faulted.11. The challenge being restricted to the issue of dividend alone it is not necessary to consider the contention pertaining that the amount as perquisite. Moreover, in the case of Income Tax Appeal No.114 of 2012 and other group of appeals this court has vide the judgment dated July 4, 2014 to which one of us (S.C. Dharmadhikari, J.) was a party has already held that where the recipient is not the share holder of the lender Company such case of a deemed dividend does not arise and such appeals are to stand dismissed since they do not raise any substantial question of law. We have, however, considered the facts of the present case in detail being slightly different nature in the facts of the case in Income Tax Appeal No.114 of 2012. In the circumstances the impugned order is not vitiated by error of law apparent on the face on record. | 0 | 1,753 | 827 | ### Instruction:
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### Input:
as the said concern)] or any payment by any such Company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the Company in either case possesses accumulated profits; but "dividend" does not include—(i) a distribution made in accordance with sub-clause (c) or sub-clause (d) in respect of any share issued for full cash consideration, where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets ;(ia) a distribution made in accordance with sub-clause (c) or sub-clause (d) in so far as such distribution is attributable to the capitalized profits of the company representing bonus shares allotted to its equity shareholders after the 31st day of March, 1964, [and before the 1st day of April, 1965](ii) any advance or loan made to a shareholder [or the said concern] by a company in the ordinary course of its business, where the lending of money is a substantial part of the business of the company;(iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of sub-clause (e), to the extent to which it is so set off;(iv) any payment made by a company on purchase of its own shares from a shareholder in accordance with the provisions of section of the Companies Act, 1956 (1 of 1956);(v) any distribution of shares pursuant to a demerger by the resulting company to the shareholders of the demerged company (whether or not there is a reduction of capital in the demerged company).6. To effectively adjudicate upon the issue before us it will be convenient to refer the assessment order dated 2.2.2009 itself prior to dealing with the impugned order. The Assessing Officer holds that the amount of Rs.2.51 crores was paid on behalf of the assessee and relied upon inter alia on a decision of the Calcutta High Court in the case of Mr.M.D. Jindal Vs. CIT 164 ITR 28 . It states that any payment referred to in section 2(22)(e) also covers value of goods and services provided by the Company to its share holders. Alternatively, the Assessing Officer held that the amount of Rs.2.51 crores be treated as a perquisite which includes value of any benefit by Company to the employee who is the Director thereof and/or by Company, who has substantial interest in it. Thus, the case against the Respondent was two fold, one that amount of Rs.2.51 crores was deemed dividend and secondly, that the amount constituted a perquisite.7. In appeal, the Commissioner of Income Tax in his order 10.11.2009 also noted a submission of the Respondent that he had leased out the premises to the Company on rent which was lower than the prevailing market rate with a clear understanding that all expenditure for its upkeep and improvement, if any, would be fully spent by the Company since the Appellant had stopped his own business activities. According to the CIT (Appeals) the Respondent failed to substantiate the said claim and held that all conditions provided under section 2(22)(e) for deemed dividend was satisfied. In appeal, the tribunal concluded that the payment was not deemed dividend. The tribunal also held that the amount was also not perquisite and accordingly the Appellants case under section 17(2) is also not sustainable.8. In the present appeal, the challenge is restricted to the tribunals findings that the Respondents case is not covered under section 2(22)(e). There is no challenge to the findings qua disallowance of the Appellants case that the amount was a perquisite. Analysis of section 2(22)(e) would reveal that in order attract the provisions of sub-section (22) the payment made by the Company must be by way of advance or loan to the share holder who is entitled to the shares which do not carry a fixed rate of dividend with or without a right to participate or a payment to him for his individual benefit. The payment should be for the individual benefit of such share holder and it would be restricted to accumulated profits of the Company.9. In the present case, no money has been paid to the Respondent by way of advance or loan nor was any payment made for his individual benefit. The fact that the Company has spent money has not been called into question. Thus, it is deemed that the Company did spent Rs.2.51 crores towards repair and renovation on the premises owned by the Respondent. There is no dispute about the fact that the Company had taken rent on the aforesaid premises. Thus, it is case where the asset of the Respondent may have enhanced in value by virtue of repairs and renovation in respect of which it cannot be brought within definition of the advance or loan to the Respondent. Nor can it be treated as payment by the Company on behalf of the Respondent share holder or for the individual benefit of such share holder.10. To hold so would be merely presumption which is not warranted in the facts of the present case. Accordingly, the order of the tribunal cannot be faulted.11. The challenge being restricted to the issue of dividend alone it is not necessary to consider the contention pertaining that the amount as perquisite. Moreover, in the case of Income Tax Appeal No.114 of 2012 and other group of appeals this court has vide the judgment dated July 4, 2014 to which one of us (S.C. Dharmadhikari, J.) was a party has already held that where the recipient is not the share holder of the lender Company such case of a deemed dividend does not arise and such appeals are to stand dismissed since they do not raise any substantial question of law. We have, however, considered the facts of the present case in detail being slightly different nature in the facts of the case in Income Tax Appeal No.114 of 2012.
### Response:
0
### Explanation:
6. To effectively adjudicate upon the issue before us it will be convenient to refer the assessment order dated 2.2.2009 itself prior to dealing with the impugned order. The Assessing Officer holds that the amount of Rs.2.51 crores was paid on behalf of the assessee and relied upon inter alia on a decision of the Calcutta High Court in the case of Mr.M.D. Jindal Vs. CIT 164 ITR 28 . It states that any payment referred to in section 2(22)(e) also covers value of goods and services provided by the Company to its share holders. Alternatively, the Assessing Officer held that the amount of Rs.2.51 crores be treated as a perquisite which includes value of any benefit by Company to the employee who is the Director thereof and/or by Company, who has substantial interest in it. Thus, the case against the Respondent was two fold, one that amount of Rs.2.51 crores was deemed dividend and secondly, that the amount constituted a perquisite.7. In appeal, the Commissioner of Income Tax in his order 10.11.2009 also noted a submission of the Respondent that he had leased out the premises to the Company on rent which was lower than the prevailing market rate with a clear understanding that all expenditure for its upkeep and improvement, if any, would be fully spent by the Company since the Appellant had stopped his own business activities. According to the CIT (Appeals) the Respondent failed to substantiate the said claim and held that all conditions provided under section 2(22)(e) for deemed dividend was satisfied. In appeal, the tribunal concluded that the payment was not deemed dividend. The tribunal also held that the amount was also not perquisite and accordingly the Appellants case under section 17(2) is also not sustainable.8. In the present appeal, the challenge is restricted to the tribunals findings that the Respondents case is not covered under section 2(22)(e). There is no challenge to the findings qua disallowance of the Appellants case that the amount was a perquisite. Analysis of section 2(22)(e) would reveal that in order attract the provisions of(22) the payment made by the Company must be by way of advance or loan to the share holder who is entitled to the shares which do not carry a fixed rate of dividend with or without a right to participate or a payment to him for his individual benefit. The payment should be for the individual benefit of such share holder and it would be restricted to accumulated profits of the Company.9. In the present case, no money has been paid to the Respondent by way of advance or loan nor was any payment made for his individual benefit. The fact that the Company has spent money has not been called into question. Thus, it is deemed that the Company did spent Rs.2.51 crores towards repair and renovation on the premises owned by the Respondent. There is no dispute about the fact that the Company had taken rent on the aforesaid premises. Thus, it is case where the asset of the Respondent may have enhanced in value by virtue of repairs and renovation in respect of which it cannot be brought within definition of the advance or loan to the Respondent. Nor can it be treated as payment by the Company on behalf of the Respondent share holder or for the individual benefit of such share holder.10. To hold so would be merely presumption which is not warranted in the facts of the present case. Accordingly, the order of the tribunal cannot be faulted.11. The challenge being restricted to the issue of dividend alone it is not necessary to consider the contention pertaining that the amount as perquisite. Moreover, in the case of Income Tax Appeal No.114 of 2012 and other group of appeals this court has vide the judgment dated July 4, 2014 to which one of us (S.C. Dharmadhikari, J.) was a party has already held that where the recipient is not the share holder of the lender Company such case of a deemed dividend does not arise and such appeals are to stand dismissed since they do not raise any substantial question of law. We have, however, considered the facts of the present case in detail being slightly different nature in the facts of the case in Income Tax Appeal No.114 of 2012. In the circumstances the impugned order is not vitiated by error of law apparent on the face on record.
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Commissioner Of Com.Taxes, Tvm Vs. M/S. Ktc Automobiles | 4(2) of the Central Sales Tax Act, in the case of specific or ascertained goods the sale or purchase is deemed to have taken place inside the State where the goods happened to be at the time of making a contract of sale. However, in the case of unascertained or future goods, the sale or purchase shall be deemed to have taken place in a State where the goods happened to be at the time of their appropriation by the seller or buyer, as the case may be. Although on behalf of the respondent, it has been vehemently urged that motor vehicles remain unascertained goods till their engine number or chassis number is entered in the certificate of registration, this proposition does not merit acceptance because the sale invoice itself must disclose such particulars as engine number and chassis number so that as an owner, the purchaser may apply for registration of a specific vehicle in his name. But as discussed earlier, on account of statutory provisions governing motor vehicles, the intending owner or buyer of a motor vehicle cannot ascertain the particulars of the vehicle for appropriating it to the contract of sale till its possession is handed over to him after observing the requirement of Motor Vehicles Act and Rules. Such possession can be given only at the registering office immediately preceding the registration. Thereafter only the goods can stand ascertained when the owner can actually verify the engine number and chassis number of the vehicle of which he gets possession. Then he can fill up those particulars claiming them to be true to his knowledge and seek registration of the vehicle in his name in accordance with law. Because of such legal position, prior to getting possession of a motor vehicle, the intending purchaser/owner does not have claim over any ascertained motor vehicle. Apropos the above, there can be no difficulty in holding that a motor vehicle remains in the category of unascertained or future goods till its appropriation to the contact of sale by the seller is occasioned by handing over its possession at or near the office of registration authority in a deliverable and registrable state. Only after getting certificate of registration the owner becomes entitled to enjoy the benefits of possession and can obtain required certificate of insurance in his name and meet other requirements of law to use the motor vehicle at any public place. 16. In the light of legal formulations discussed and noticed above, we find that in law, the motor vehicles in question could come into the category of ascertained goods and could get appropriated to the contract of sale at the registration office at Mahe where admittedly all were registered in accordance with Motor Vehicles Act and Rules. The aforesaid view, in the context of motor vehicles gets support from sub-section (4) of Section 4 of the Sale of Goods Act. It contemplates that an agreement to sell fructifies and becomes a sale when the conditions are fulfilled subject to which the properties of the goods is to be transferred. In case of motor vehicles the possession can be handed over, as noticed earlier, only at or near the office of registering authority, normally at the time of registration. In case there is a major accident when the dealer is taking the motor vehicle to the registration office and vehicle can no longer be ascertained or declared fit for registration, clearly the conditions for transfer of property in the goods do not get satisfied or fulfilled. Section 18 of the Sale of Goods Act postulates that when a contract for sale is in respect of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Even when the contract for sale is in respect of specific or ascertained goods, the property in such goods is transferred to the buyer only at such time as the parties intend. The intention of the parties in this regard is to be gathered from the terms of the contract, the conduct of the parties and the circumstances of the case. Even if the motor vehicles were to be treated as specific and ascertained goods at the time when the sale invoice with all the specific particulars may be issued, according to Section 21 of the Sale of Goods Act, in case of such a contract for sale also, when the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof. In the light of circumstances governing motor vehicles which may safely be gathered even from the Motor Vehicles Act and the Rules, it is obvious that the seller or the manufacturer/dealer is bound to transport the motor vehicle to the office of registering authority and only when it reaches there safe and sound, in accordance with the statutory provisions governing motor vehicles it can be said to be in a deliverable state and only then the property in such a motor vehicle can pass to the buyer once he has been given notice that the motor vehicle is fit and ready for his lawful possession and registration.17. In view of discussions made earlier, there is no need to again traverse the factual matrix, which led the Deputy Commissioner and the High Court to decide the controversy in favour of the respondent. However, since we have gone through the judgment of the High Court carefully, we are in agreement with the contention advanced on behalf of the respondent that the allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the sales under controversy had taken place at Kozhikode, Kerala. To the contrary, in view of propositions of law discussed hereinbefore, the judgment of the High Court gets reinforced and deserves affirmation. We order accordingly. | 0[ds]we find that in law, the motor vehicles in question could come into the category of ascertained goods and could get appropriated to the contract of sale at the registration office at Mahe where admittedly all were registered in accordance with Motor Vehicles Act and Rules. The aforesaid view, in the context of motor vehicles gets support from sub-section (4) of Section 4 of the Sale of Goods Act. It contemplates that an agreement to sell fructifies and becomes a sale when the conditions are fulfilled subject to which the properties of the goods is to be transferred. In case of motor vehicles the possession can be handed over, as noticed earlier, only at or near the office of registering authority, normally at the time of registration. In case there is a major accident when the dealer is taking the motor vehicle to the registration office and vehicle can no longer be ascertained or declared fit for registration, clearly the conditions for transfer of property in the goods do not get satisfied or fulfilled. Section 18 of the Sale of Goods Act postulates that when a contract for sale is in respect of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Even when the contract for sale is in respect of specific or ascertained goods, the property in such goods is transferred to the buyer only at such time as the parties intend. The intention of the parties in this regard is to be gathered from the terms of the contract, the conduct of the parties and the circumstances of the case. Even if the motor vehicles were to be treated as specific and ascertained goods at the time when the sale invoice with all the specific particulars may be issued, according to Section 21 of the Sale of Goods Act, in case of such a contract for sale also, when the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof. In the light of circumstances governing motor vehicles which may safely be gathered even from the Motor Vehicles Act and the Rules, it is obvious that the seller or the manufacturer/dealer is bound to transport the motor vehicle to the office of registering authority and only when it reaches there safe and sound, in accordance with the statutory provisions governing motor vehicles it can be said to be in a deliverable state and only then the property in such a motor vehicle can pass to the buyer once he has been given notice that the motor vehicle is fit and ready for his lawful possession and registration.17. In view of discussions made earlier, there is no need to again traverse the factual matrix, which led the Deputy Commissioner and the High Court to decide the controversy in favour of the respondent. However, since we have gone through the judgment of the High Court carefully, we are in agreement with the contention advanced on behalf of the respondent that the allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the sales under controversy had taken place at Kozhikode, Kerala. To the contrary, in view of propositions of law discussed hereinbefore, the judgment of the High Court gets reinforced and deserves affirmation. We order accordingly. | 0 | 5,370 | 628 | ### 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:
4(2) of the Central Sales Tax Act, in the case of specific or ascertained goods the sale or purchase is deemed to have taken place inside the State where the goods happened to be at the time of making a contract of sale. However, in the case of unascertained or future goods, the sale or purchase shall be deemed to have taken place in a State where the goods happened to be at the time of their appropriation by the seller or buyer, as the case may be. Although on behalf of the respondent, it has been vehemently urged that motor vehicles remain unascertained goods till their engine number or chassis number is entered in the certificate of registration, this proposition does not merit acceptance because the sale invoice itself must disclose such particulars as engine number and chassis number so that as an owner, the purchaser may apply for registration of a specific vehicle in his name. But as discussed earlier, on account of statutory provisions governing motor vehicles, the intending owner or buyer of a motor vehicle cannot ascertain the particulars of the vehicle for appropriating it to the contract of sale till its possession is handed over to him after observing the requirement of Motor Vehicles Act and Rules. Such possession can be given only at the registering office immediately preceding the registration. Thereafter only the goods can stand ascertained when the owner can actually verify the engine number and chassis number of the vehicle of which he gets possession. Then he can fill up those particulars claiming them to be true to his knowledge and seek registration of the vehicle in his name in accordance with law. Because of such legal position, prior to getting possession of a motor vehicle, the intending purchaser/owner does not have claim over any ascertained motor vehicle. Apropos the above, there can be no difficulty in holding that a motor vehicle remains in the category of unascertained or future goods till its appropriation to the contact of sale by the seller is occasioned by handing over its possession at or near the office of registration authority in a deliverable and registrable state. Only after getting certificate of registration the owner becomes entitled to enjoy the benefits of possession and can obtain required certificate of insurance in his name and meet other requirements of law to use the motor vehicle at any public place. 16. In the light of legal formulations discussed and noticed above, we find that in law, the motor vehicles in question could come into the category of ascertained goods and could get appropriated to the contract of sale at the registration office at Mahe where admittedly all were registered in accordance with Motor Vehicles Act and Rules. The aforesaid view, in the context of motor vehicles gets support from sub-section (4) of Section 4 of the Sale of Goods Act. It contemplates that an agreement to sell fructifies and becomes a sale when the conditions are fulfilled subject to which the properties of the goods is to be transferred. In case of motor vehicles the possession can be handed over, as noticed earlier, only at or near the office of registering authority, normally at the time of registration. In case there is a major accident when the dealer is taking the motor vehicle to the registration office and vehicle can no longer be ascertained or declared fit for registration, clearly the conditions for transfer of property in the goods do not get satisfied or fulfilled. Section 18 of the Sale of Goods Act postulates that when a contract for sale is in respect of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Even when the contract for sale is in respect of specific or ascertained goods, the property in such goods is transferred to the buyer only at such time as the parties intend. The intention of the parties in this regard is to be gathered from the terms of the contract, the conduct of the parties and the circumstances of the case. Even if the motor vehicles were to be treated as specific and ascertained goods at the time when the sale invoice with all the specific particulars may be issued, according to Section 21 of the Sale of Goods Act, in case of such a contract for sale also, when the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof. In the light of circumstances governing motor vehicles which may safely be gathered even from the Motor Vehicles Act and the Rules, it is obvious that the seller or the manufacturer/dealer is bound to transport the motor vehicle to the office of registering authority and only when it reaches there safe and sound, in accordance with the statutory provisions governing motor vehicles it can be said to be in a deliverable state and only then the property in such a motor vehicle can pass to the buyer once he has been given notice that the motor vehicle is fit and ready for his lawful possession and registration.17. In view of discussions made earlier, there is no need to again traverse the factual matrix, which led the Deputy Commissioner and the High Court to decide the controversy in favour of the respondent. However, since we have gone through the judgment of the High Court carefully, we are in agreement with the contention advanced on behalf of the respondent that the allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the sales under controversy had taken place at Kozhikode, Kerala. To the contrary, in view of propositions of law discussed hereinbefore, the judgment of the High Court gets reinforced and deserves affirmation. We order accordingly.
### Response:
0
### Explanation:
we find that in law, the motor vehicles in question could come into the category of ascertained goods and could get appropriated to the contract of sale at the registration office at Mahe where admittedly all were registered in accordance with Motor Vehicles Act and Rules. The aforesaid view, in the context of motor vehicles gets support from sub-section (4) of Section 4 of the Sale of Goods Act. It contemplates that an agreement to sell fructifies and becomes a sale when the conditions are fulfilled subject to which the properties of the goods is to be transferred. In case of motor vehicles the possession can be handed over, as noticed earlier, only at or near the office of registering authority, normally at the time of registration. In case there is a major accident when the dealer is taking the motor vehicle to the registration office and vehicle can no longer be ascertained or declared fit for registration, clearly the conditions for transfer of property in the goods do not get satisfied or fulfilled. Section 18 of the Sale of Goods Act postulates that when a contract for sale is in respect of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Even when the contract for sale is in respect of specific or ascertained goods, the property in such goods is transferred to the buyer only at such time as the parties intend. The intention of the parties in this regard is to be gathered from the terms of the contract, the conduct of the parties and the circumstances of the case. Even if the motor vehicles were to be treated as specific and ascertained goods at the time when the sale invoice with all the specific particulars may be issued, according to Section 21 of the Sale of Goods Act, in case of such a contract for sale also, when the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof. In the light of circumstances governing motor vehicles which may safely be gathered even from the Motor Vehicles Act and the Rules, it is obvious that the seller or the manufacturer/dealer is bound to transport the motor vehicle to the office of registering authority and only when it reaches there safe and sound, in accordance with the statutory provisions governing motor vehicles it can be said to be in a deliverable state and only then the property in such a motor vehicle can pass to the buyer once he has been given notice that the motor vehicle is fit and ready for his lawful possession and registration.17. In view of discussions made earlier, there is no need to again traverse the factual matrix, which led the Deputy Commissioner and the High Court to decide the controversy in favour of the respondent. However, since we have gone through the judgment of the High Court carefully, we are in agreement with the contention advanced on behalf of the respondent that the allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the sales under controversy had taken place at Kozhikode, Kerala. To the contrary, in view of propositions of law discussed hereinbefore, the judgment of the High Court gets reinforced and deserves affirmation. We order accordingly.
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Annaii Medical College & Hospital & Another Vs. Union of India & Another | Occupancy on the day of assessment was only 51.6%. It was also noticed that the Hospital, with so many indoor patients, had not utilized any blood unit after 30th July, 2016. Indeed, the petitioners have asserted that the concerned staff who was maintaining the Blood Bank Register was not available and the “up-to-date register” was kept by him in his locker. This explanation did not find favour with the authorities. The other critical deficiency noticed in the Assessment Report was that only 76 paramedical & non-teaching staff were available as against requirement of 100. The statutory scheme provides for a minimum ratio of staff and Beds to be maintained. The OC, however, brushed aside these deficiencies by observing that there was no minimum standard requirement MSR in that regard.10. Considering the above, it is not possible to countenance the argument of the petitioners that the view taken by the Competent Authority is unjust, manifestly wrong or suffers from the vice of extraneous consideration. The impugned decision dated 10th August, 2017 refers to all the relevant materials pointing towards the deficiencies in the college which still persisted, notwithstanding the undertaking given by the college to remove the same. That undertaking was the basis for issuing conditional LOP for the academic session 2016-2017.11. Be that as it may, it is also not possible to sustain the argument of the petitioners that the impugned decision is a mechanical order passed by the Competent Authority. Similar argument has been considered and rejected in the case of Royal Medical Trust (supra). The dictum in paragraph 52 of the said decision will apply on all fours. The same reads thus:-“52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same 23 (2004) 2 SCC 150 50 our attention has been drawn to the penultimate paragraph of the order.”12. Notably, this Court in the aforementioned case of Royal Medical Trust (supra), has ordained that no relief can be granted to such institutions to admit students for the academic session 2017-2018, since, the cut-off date for the admission to the MBBS course is over and the academic session has commenced. Resultantly, we may mould the relief as done in the case of Varunarjun Trust and Anr. Vs. Union of India and Ors. (Writ Petition (C) No. 787 of 2017, decided on 12.09.2017)wherein it is observed thus:-“18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th – 19th November, 2016. The question is: whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, could be the basis for determining the efficiency and performance of the college for the rest of the academic session while considering the proposal for grant of permission? There is nothing in the opinion of the Hearing Committee or the decision of the Competent Authority that requisite number of faculty members and residents was not employed in the petitioner college or that the claim of the petitioner college in that behalf was bogus. The noting is about the absence of such large number of faculty and residents on the day of inspection and during the duty hours. Assuming that the college could not secure the presence of those persons at the time of inspection, it does not follow that those faculty members and residents were not on the pay roll and in the employment of the petitioner college. This aspect certainly requires proper verification and consideration by the concerned authority.19. A priori, we may adopt the course as in the case of World College of Medical Sciences & Research Vs. Union of India (Writ Petition (C) No. 514 of 2017, decided on 05.09.2017), by directing the respondents to allow the students already admitted in the petitioner college on the basis of conditional LOP for the academic session 2016-17, to continue their studies. The MCI shall send its Inspection Team within a period of three months to submit an assessment report regarding the overall performance and efficiency of the petitioner college and deficiencies, if any, and give time to the petitioner college to remove those deficiencies within the time specified in that regard. The petitioner medical college shall then report its compliance and communicate the removal of deficiencies to MCI, whereafter it will be open to the MCI to verify the position and then submit its recommendation to the Central Government. The Ministry shall take a final decision within one month of the receipt of the recommendation from the MCI. Until such decision is taken and communicated to the petitioners, the Bank Guarantee offered by the petitioners in the sum of Rs. Two Crore shall not be encashed by the MCI but the petitioners shall keep the same alive. In the event the final decision of the Competent Authority of the Central Government is adverse to the petitioners, it will be open to them to take recourse to such remedies as may be available in law.” | 1[ds]8. On a bare perusal of the impugned decision dated 10th August, 2017, it is manifest that the Competent Authority inter alia noticed asAbsence of large number of faculty members and residents beyond the permissible limit on the day of inspection.(ii) Explanation offered by the petitioners about the absence of faculty members and residents due to leave granted to them and also because the inspection was done just after Dewali festival, was unsatisfactory.(iii) Explanation regarding one faculty was not accepted as he was present during the Government college inspection in September.(iv) No compliance was provided in respect of other deficiencies.As regards the deficiencies of faculty members and residents, it was contended before the Hearing Committee that the absence of such large number of medical staff was mainly attributable to Diwali festival. The Hearing Committee has dealt with that contention and noted that Diwali was on 29th October, 2016, whereas the inspection was conducted on 3rd & 4th November, 2016. That was obviously beyond two days from Diwali festival and was permissible in terms of Clause 8 (3)(1)(d) of the Establishment of Medical College Regulations, 1999. A similar argument has been considered and rejected by this Court in the case of Shri Venkateshwara University Vs. Union of India (Writ Petition (C) No. 445 of 2017, decided on 01.09.2017)and in Royal Medical Trust & Anr. Vs. Union of India & Anr. (Writ Petition (C) No. 747 of 2017, decided on 12.09.2017)Hence, no fault can be found with the view taken by the Competent Authority. The Hearing Committee also considered the explanation given by the petitioners regarding one faculty whose presence was noticed during the inspection of the Government College in September, 2016. The Hearing Committee then observed that the college could not provide compliance in respect of other deficiencies. The other deficiencies noticed in the Assessment Report dated 3rd & 4th November, 2016, which remained unexplained, were very significant and cannot be overlooked. It is seen that the Bed Occupancy on the day of assessment was only 51.6%. It was also noticed that the Hospital, with so many indoor patients, had not utilized any blood unit after 30th July, 2016. Indeed, the petitioners have asserted that the concerned staff who was maintaining the Blood Bank Register was not available and theas kept by him in his locker. This explanation did not find favour with the authorities. The other critical deficiency noticed in the Assessment Report was that only 76 paramedical &Be that as it may, it is also not possible to sustain the argument of the petitioners that the impugned decision is a mechanical order passed by the Competent Authority. Similar argument has been considered and rejected in the case of Royal Medical Trust (supra).Notably, this Court in the aforementioned case of Royal Medical Trust (supra), has ordained that no relief can be granted to such institutions to admit students for the academic sessionoff date for the admission to the MBBS course is over and the academic session has commenced. Resultantly, we may mould the relief as done in the case of Varunarjun Trust and Anr. Vs. Union of India and Ors. (Writ Petition (C) No. 787 of 2017, decided on 12.09.2017) | 1 | 3,650 | 621 | ### 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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Occupancy on the day of assessment was only 51.6%. It was also noticed that the Hospital, with so many indoor patients, had not utilized any blood unit after 30th July, 2016. Indeed, the petitioners have asserted that the concerned staff who was maintaining the Blood Bank Register was not available and the “up-to-date register” was kept by him in his locker. This explanation did not find favour with the authorities. The other critical deficiency noticed in the Assessment Report was that only 76 paramedical & non-teaching staff were available as against requirement of 100. The statutory scheme provides for a minimum ratio of staff and Beds to be maintained. The OC, however, brushed aside these deficiencies by observing that there was no minimum standard requirement MSR in that regard.10. Considering the above, it is not possible to countenance the argument of the petitioners that the view taken by the Competent Authority is unjust, manifestly wrong or suffers from the vice of extraneous consideration. The impugned decision dated 10th August, 2017 refers to all the relevant materials pointing towards the deficiencies in the college which still persisted, notwithstanding the undertaking given by the college to remove the same. That undertaking was the basis for issuing conditional LOP for the academic session 2016-2017.11. Be that as it may, it is also not possible to sustain the argument of the petitioners that the impugned decision is a mechanical order passed by the Competent Authority. Similar argument has been considered and rejected in the case of Royal Medical Trust (supra). The dictum in paragraph 52 of the said decision will apply on all fours. The same reads thus:-“52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same 23 (2004) 2 SCC 150 50 our attention has been drawn to the penultimate paragraph of the order.”12. Notably, this Court in the aforementioned case of Royal Medical Trust (supra), has ordained that no relief can be granted to such institutions to admit students for the academic session 2017-2018, since, the cut-off date for the admission to the MBBS course is over and the academic session has commenced. Resultantly, we may mould the relief as done in the case of Varunarjun Trust and Anr. Vs. Union of India and Ors. (Writ Petition (C) No. 787 of 2017, decided on 12.09.2017)wherein it is observed thus:-“18. Be that as it may, the opinion of the Hearing Committee, which is the basis for passing the impugned decision, is founded on the performance of the college on the day of inspection dated 18th – 19th November, 2016. The question is: whether absence of faculty members and residents on the given day, assuming it to be substantial in number, per se, could be the basis for determining the efficiency and performance of the college for the rest of the academic session while considering the proposal for grant of permission? There is nothing in the opinion of the Hearing Committee or the decision of the Competent Authority that requisite number of faculty members and residents was not employed in the petitioner college or that the claim of the petitioner college in that behalf was bogus. The noting is about the absence of such large number of faculty and residents on the day of inspection and during the duty hours. Assuming that the college could not secure the presence of those persons at the time of inspection, it does not follow that those faculty members and residents were not on the pay roll and in the employment of the petitioner college. This aspect certainly requires proper verification and consideration by the concerned authority.19. A priori, we may adopt the course as in the case of World College of Medical Sciences & Research Vs. Union of India (Writ Petition (C) No. 514 of 2017, decided on 05.09.2017), by directing the respondents to allow the students already admitted in the petitioner college on the basis of conditional LOP for the academic session 2016-17, to continue their studies. The MCI shall send its Inspection Team within a period of three months to submit an assessment report regarding the overall performance and efficiency of the petitioner college and deficiencies, if any, and give time to the petitioner college to remove those deficiencies within the time specified in that regard. The petitioner medical college shall then report its compliance and communicate the removal of deficiencies to MCI, whereafter it will be open to the MCI to verify the position and then submit its recommendation to the Central Government. The Ministry shall take a final decision within one month of the receipt of the recommendation from the MCI. Until such decision is taken and communicated to the petitioners, the Bank Guarantee offered by the petitioners in the sum of Rs. Two Crore shall not be encashed by the MCI but the petitioners shall keep the same alive. In the event the final decision of the Competent Authority of the Central Government is adverse to the petitioners, it will be open to them to take recourse to such remedies as may be available in law.”
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8. On a bare perusal of the impugned decision dated 10th August, 2017, it is manifest that the Competent Authority inter alia noticed asAbsence of large number of faculty members and residents beyond the permissible limit on the day of inspection.(ii) Explanation offered by the petitioners about the absence of faculty members and residents due to leave granted to them and also because the inspection was done just after Dewali festival, was unsatisfactory.(iii) Explanation regarding one faculty was not accepted as he was present during the Government college inspection in September.(iv) No compliance was provided in respect of other deficiencies.As regards the deficiencies of faculty members and residents, it was contended before the Hearing Committee that the absence of such large number of medical staff was mainly attributable to Diwali festival. The Hearing Committee has dealt with that contention and noted that Diwali was on 29th October, 2016, whereas the inspection was conducted on 3rd & 4th November, 2016. That was obviously beyond two days from Diwali festival and was permissible in terms of Clause 8 (3)(1)(d) of the Establishment of Medical College Regulations, 1999. A similar argument has been considered and rejected by this Court in the case of Shri Venkateshwara University Vs. Union of India (Writ Petition (C) No. 445 of 2017, decided on 01.09.2017)and in Royal Medical Trust & Anr. Vs. Union of India & Anr. (Writ Petition (C) No. 747 of 2017, decided on 12.09.2017)Hence, no fault can be found with the view taken by the Competent Authority. The Hearing Committee also considered the explanation given by the petitioners regarding one faculty whose presence was noticed during the inspection of the Government College in September, 2016. The Hearing Committee then observed that the college could not provide compliance in respect of other deficiencies. The other deficiencies noticed in the Assessment Report dated 3rd & 4th November, 2016, which remained unexplained, were very significant and cannot be overlooked. It is seen that the Bed Occupancy on the day of assessment was only 51.6%. It was also noticed that the Hospital, with so many indoor patients, had not utilized any blood unit after 30th July, 2016. Indeed, the petitioners have asserted that the concerned staff who was maintaining the Blood Bank Register was not available and theas kept by him in his locker. This explanation did not find favour with the authorities. The other critical deficiency noticed in the Assessment Report was that only 76 paramedical &Be that as it may, it is also not possible to sustain the argument of the petitioners that the impugned decision is a mechanical order passed by the Competent Authority. Similar argument has been considered and rejected in the case of Royal Medical Trust (supra).Notably, this Court in the aforementioned case of Royal Medical Trust (supra), has ordained that no relief can be granted to such institutions to admit students for the academic sessionoff date for the admission to the MBBS course is over and the academic session has commenced. Resultantly, we may mould the relief as done in the case of Varunarjun Trust and Anr. Vs. Union of India and Ors. (Writ Petition (C) No. 787 of 2017, decided on 12.09.2017)
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Dixit Kumar & Another Vs. Om Prakash Goel | claimant Om Prakash Goel had sustained injuries in the same. The Tribunal granted compensation on various heads and in assessing the same, principally took note of the oral and documentary evidence with regard to the physical state of the claimant as a result of the injuries sustained. It took note amongst others of the disability certificate Ext.PW-2/K proved by the doctor concerned who assessed the permanent physical disability of the claimant to the extent of 50% due to post traumatic hemiparasis of the left side of the body. The doctor, PW-2 opined that in the kind of permanent physical disability involved, the patient cannot be cured by medicines or surgery. The Tribunal also took into consideration the testimony of PW-1, the son of the claimant to the effect that he (claimant) had been bed ridden and that he had also become 50% mentally retarded following the trauma and the injuries suffered. The Tribunal in addition noted the evidence of PW-1, the son of the claimant that half portion of the body of the claimant had become totally paralyzed so much so that he was left in no state to conduct his business in future. The Tribunal thus assessed the functional disability of the claimant to be 100%. On an overall assessment relating to the injuries suffered, the adverse consequences thereof on the physical state, expenses incurred on medical treatment, loss of income, extent of functional disability and the bearing thereof on the earning capacity of the claimant together with the incidental expenses as well as the general damages, it awarded in all Rs. 15,51,030/- as compensation to the claimant together with interest at the rate of 7.5% per annum thereon from the date of institution of the claim petition. 7. Being aggrieved the opposite party in the claim proceedings preferred appeal before the High Court which reduced the quantum of compensation to Rs. 7,88,150/- maintaining however the rate of interest at Rs. 7.5% per annum payable with effect from 25.05.2004. In quantifying the compensation as above, the High Court reiterated that the accident had occurred due to the rash and negligent driving of the Maruti Car but declined to accept that functional disability of the claimant to the extent of 100% had resulted from the permanent physical disability acquired from the injuries sustained by him. The High Court though noted the testimony of PW-1, the son of the claimant that he (claimant) had become paralytic on one side thus reducing him to a vegetative state and rendering him 100% functionally disabled, did not accept the said version. The High Court noted the age of the claimant at the relevant time to be 54 years and accepted his monthly income of Rs. 2680/- per month as had been fixed by the Tribunal. Proceeding on this premise, the High Court thus reduced the quantum of compensation under various heads and even struck off the award on many counts of non-pecuniary damages, thus reducing the amount of compensation to Rs. 7,88,150/-. The notable omission from the heads of compensation granted by the Tribunal apart from the reductions generally made are with regard to compensation on account of inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life as well as loss of recurring inevitable expenses in future. As the calculations would reveal, the High Court substantially reduced the amount of compensation under the heads of loss of income and future earning capacity, loss of enjoyment of amenities of life and attendant charges. It did not take account as well the future medical expenses and prospects of higher earnings in future. 8. Whereas the learned counsel for the claimant has urged that the reduction in the quantum of compensation by the High Court in the facts and circumstances of the case is grossly erroneous and if sustained would result in serious prejudice and hardship, it has been insistently argued on behalf of the opposite party that the claim ought to have been rejected in toto in view of the earlier dismissal thereof and the failure as well to prove the negligence of the Maruti Car in causing the accident as well as their (opposite party) liability in law. 9. On an evaluation of the materials on record, we are of the view that the concurrent finding of the Courts below on the liability of the opposite party/appellants to bear the compensation does not warrant any interference. It is noticeable that the finding of the learned Tribunal that the claimant had suffered 100% functional disability resulting from 50% permanent physical disability is based on evidence on record. It did in our estimate, meticulously analyze all essential aspects correlated to the fall out of such physical state of the claimant and consciously awarded different sums on account of special and general damages as contemplated in law. Significantly, the Tribunal took the monthly income of the claimant to be Rs. 2680/- at par with the prevalent minimum wage on the date of the accident though his claim was that he had an earning of Rs. 5000/- per month from his running business. In absence of any dispute that the claimant at the time of the accident did have a business in the name and style of M/s. Shiv Traders for which he used to file income tax returns as well, we are of the comprehension that the income of Rs. 2680/- as adopted by the Tribunal was on the lower side. 10. In view of the totality of the facts and circumstances and the evidence on records, in our estimate, the quantum of compensation as awarded by the Tribunal, on balancing all relevant factors, was just and reasonable. The learned Tribunal not only had appreciated the materials on record in the correct perspectives, it had been realistic in its approach and was informed as well of the practical realities of life to be encountered by the claimant. Its decision making process in our comprehension is informed with the avowed prescription of just compensation as mandated by law. | 1[ds]9. On an evaluation of the materials on record, we are of the view that the concurrent finding of the Courts below on the liability of the opposite party/appellants to bear the compensation does not warrant any interference. It is noticeable that the finding of the learned Tribunal that the claimant had suffered 100% functional disability resulting from 50% permanent physical disability is based on evidence on record. It did in our estimate, meticulously analyze all essential aspects correlated to the fall out of such physical state of the claimant and consciously awarded different sums on account of special and general damages as contemplated in law. Significantly, the Tribunal took the monthly income of the claimant to be Rs. 2680/at par with the prevalent minimum wage on the date of the accident though his claim was that he had an earning of Rs. 5000/per month from his running business. In absence of any dispute that the claimant at the time of the accident did have a business in the name and style of M/s. Shiv Traders for which he used to file income tax returns as well, we are of the comprehension that the income of Rs. 2680/as adopted by the Tribunal was on the lower side10. In view of the totality of the facts and circumstances and the evidence on records, in our estimate, the quantum of compensation as awarded by the Tribunal, on balancing all relevant factors, was just and reasonable. The learned Tribunal not only had appreciated the materials on record in the correct perspectives, it had been realistic in its approach and was informed as well of the practical realities of life to be encountered by the claimant. Its decision making process in our comprehension is informed with the avowed prescription of just compensation as mandated by law | 1 | 1,584 | 329 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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claimant Om Prakash Goel had sustained injuries in the same. The Tribunal granted compensation on various heads and in assessing the same, principally took note of the oral and documentary evidence with regard to the physical state of the claimant as a result of the injuries sustained. It took note amongst others of the disability certificate Ext.PW-2/K proved by the doctor concerned who assessed the permanent physical disability of the claimant to the extent of 50% due to post traumatic hemiparasis of the left side of the body. The doctor, PW-2 opined that in the kind of permanent physical disability involved, the patient cannot be cured by medicines or surgery. The Tribunal also took into consideration the testimony of PW-1, the son of the claimant to the effect that he (claimant) had been bed ridden and that he had also become 50% mentally retarded following the trauma and the injuries suffered. The Tribunal in addition noted the evidence of PW-1, the son of the claimant that half portion of the body of the claimant had become totally paralyzed so much so that he was left in no state to conduct his business in future. The Tribunal thus assessed the functional disability of the claimant to be 100%. On an overall assessment relating to the injuries suffered, the adverse consequences thereof on the physical state, expenses incurred on medical treatment, loss of income, extent of functional disability and the bearing thereof on the earning capacity of the claimant together with the incidental expenses as well as the general damages, it awarded in all Rs. 15,51,030/- as compensation to the claimant together with interest at the rate of 7.5% per annum thereon from the date of institution of the claim petition. 7. Being aggrieved the opposite party in the claim proceedings preferred appeal before the High Court which reduced the quantum of compensation to Rs. 7,88,150/- maintaining however the rate of interest at Rs. 7.5% per annum payable with effect from 25.05.2004. In quantifying the compensation as above, the High Court reiterated that the accident had occurred due to the rash and negligent driving of the Maruti Car but declined to accept that functional disability of the claimant to the extent of 100% had resulted from the permanent physical disability acquired from the injuries sustained by him. The High Court though noted the testimony of PW-1, the son of the claimant that he (claimant) had become paralytic on one side thus reducing him to a vegetative state and rendering him 100% functionally disabled, did not accept the said version. The High Court noted the age of the claimant at the relevant time to be 54 years and accepted his monthly income of Rs. 2680/- per month as had been fixed by the Tribunal. Proceeding on this premise, the High Court thus reduced the quantum of compensation under various heads and even struck off the award on many counts of non-pecuniary damages, thus reducing the amount of compensation to Rs. 7,88,150/-. The notable omission from the heads of compensation granted by the Tribunal apart from the reductions generally made are with regard to compensation on account of inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life as well as loss of recurring inevitable expenses in future. As the calculations would reveal, the High Court substantially reduced the amount of compensation under the heads of loss of income and future earning capacity, loss of enjoyment of amenities of life and attendant charges. It did not take account as well the future medical expenses and prospects of higher earnings in future. 8. Whereas the learned counsel for the claimant has urged that the reduction in the quantum of compensation by the High Court in the facts and circumstances of the case is grossly erroneous and if sustained would result in serious prejudice and hardship, it has been insistently argued on behalf of the opposite party that the claim ought to have been rejected in toto in view of the earlier dismissal thereof and the failure as well to prove the negligence of the Maruti Car in causing the accident as well as their (opposite party) liability in law. 9. On an evaluation of the materials on record, we are of the view that the concurrent finding of the Courts below on the liability of the opposite party/appellants to bear the compensation does not warrant any interference. It is noticeable that the finding of the learned Tribunal that the claimant had suffered 100% functional disability resulting from 50% permanent physical disability is based on evidence on record. It did in our estimate, meticulously analyze all essential aspects correlated to the fall out of such physical state of the claimant and consciously awarded different sums on account of special and general damages as contemplated in law. Significantly, the Tribunal took the monthly income of the claimant to be Rs. 2680/- at par with the prevalent minimum wage on the date of the accident though his claim was that he had an earning of Rs. 5000/- per month from his running business. In absence of any dispute that the claimant at the time of the accident did have a business in the name and style of M/s. Shiv Traders for which he used to file income tax returns as well, we are of the comprehension that the income of Rs. 2680/- as adopted by the Tribunal was on the lower side. 10. In view of the totality of the facts and circumstances and the evidence on records, in our estimate, the quantum of compensation as awarded by the Tribunal, on balancing all relevant factors, was just and reasonable. The learned Tribunal not only had appreciated the materials on record in the correct perspectives, it had been realistic in its approach and was informed as well of the practical realities of life to be encountered by the claimant. Its decision making process in our comprehension is informed with the avowed prescription of just compensation as mandated by law.
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9. On an evaluation of the materials on record, we are of the view that the concurrent finding of the Courts below on the liability of the opposite party/appellants to bear the compensation does not warrant any interference. It is noticeable that the finding of the learned Tribunal that the claimant had suffered 100% functional disability resulting from 50% permanent physical disability is based on evidence on record. It did in our estimate, meticulously analyze all essential aspects correlated to the fall out of such physical state of the claimant and consciously awarded different sums on account of special and general damages as contemplated in law. Significantly, the Tribunal took the monthly income of the claimant to be Rs. 2680/at par with the prevalent minimum wage on the date of the accident though his claim was that he had an earning of Rs. 5000/per month from his running business. In absence of any dispute that the claimant at the time of the accident did have a business in the name and style of M/s. Shiv Traders for which he used to file income tax returns as well, we are of the comprehension that the income of Rs. 2680/as adopted by the Tribunal was on the lower side10. In view of the totality of the facts and circumstances and the evidence on records, in our estimate, the quantum of compensation as awarded by the Tribunal, on balancing all relevant factors, was just and reasonable. The learned Tribunal not only had appreciated the materials on record in the correct perspectives, it had been realistic in its approach and was informed as well of the practical realities of life to be encountered by the claimant. Its decision making process in our comprehension is informed with the avowed prescription of just compensation as mandated by law
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Union Of India Vs. Adani Exports Ltd. | part of the Pass Book Scheme which is the subject-matter of the special civil applications with which we are concerned now. Execution of the bank guarantee was not with reference to the demand of the respondents to give it due credit in the pass book but the same was executed much later than 31-3-1997 in regard to certain disputes pending with the customs authorities in regard to the valuations made by the said authorities as to the value of the export and import of prawn and its inputs. It was also pointed out that these customs authorities, as a matter of fact are not even parties to these special civil applications. Thus, it is contended that the factum of the respondents having executed a bank guarantee and a Bond at Ahmedabad will have no direct nexus or bearing on the disputes involved in these applications. It is pointed out to us by learned counsel for the appellants that in regard to the correctness of the valuation, separate proceedings have been initiated and against the findings in those proceedings, separate appeals are pending in this Court, therefore, the bank guarantee and the Bond executed by the respondents, as a matter of fact, have nothing to do with the cause of action that may arise to challenge the denial of the benefit of the Pass Book Scheme. Inclusion of this totally extraneous claim in the present writ petition cannot be construed as being a factor giving rise to a cause of action. In the case of ONGC (supra), this Court negatived the contentions advanced on behalf of the respondents therein that either the acquisition of knowledge made through media at a particular place or owning and having an office or property or residing at a particular place, receiving of a fax message at a particular place, receiving telephone calls and maintaining statements of accounts of business, printing of letterheads indicating branch offices of the firm, booking of orders from a particular place are not the factors which would give rise to either wholly or in part cause of action conferring territorial jurisdiction to Courts. In the said case, this Court also held that the mere service of notice is also not a fact giving rise to a cause of action unless such notice is an integral part of the cause of action. 20.Mr. Desai, however, placed reliance on a recent judgment of this Court in Navinchandra v. State of Maharashtra (supra) wherein this Court had held that a part of the cause of action had arisen within the jurisdiction of the Bombay High Court. It is to be noted that in the said petition, among other reliefs, the writ petitioner had prayed for a writ of mandamus to the State of Meghalaya to transfer the investigation to Mumbai Police as also allegations of mala fides were made as to the filing of the complaint at Shillong. It was also averred in that case that the petitioner was primarily aggrieved by the criminal complaint filed at Meghalaya because the bulk of the investigation was carried on at Bombay. The said writ petition was dismissed by the Bombay High Court solely on the ground that since the complaint in question was filed in Shillong in the State of Meghalaya and the petitioner had sought for quashing of the said complaint, such a writ petition was not maintainable before the High Court of Bombay. According to this Court, that finding was given without taking into consideration the other alternative prayers in the writ petition to which we have made reference hereinabove, which prayers according to this Court, gave rise to a cause of action to move the High Court at Bombay for relief. Therefore, in our opinion, this judgment does not help the writ petitioner to justify its action in filing a writ petition before the Gujarat High Court. That apart, we must notice that the said judgment is delivered in a matter involving criminal dispute and consequences of such dispute have a direct bearing on the personal freedom of a citizen guaranteed under Article 21 of the Constitution. Therefore, the consideration that arises in deciding the question of territorial jurisdiction in cases involving criminal offences may not always apply to cases involving civil disputes like the special civil applications with which we are concerned. Mr. Desai then urged that since the High Court has elaborately dealt with the merits of the case and given a finding in favour of the respondents in the interest of justice, we should not interfere with the said finding and uphold the same. We are not inclined to accept this argument of the learned Counsel because the appellants herein had taken objection to the entertainment of the special civil applications by the Gujarat High Court on the ground of lack of territorial jurisdiction in the first instance itself and the same was rejected, according to us, wholly on unsustainable grounds. As a matter of fact, the appellant on the entertainment of the civil application and grant of interim order, had challenged the said order on the ground of want of jurisdiction by way of a civil appeal in this Court which appeal is pending consideration by this Court, therefore, the objection having been taken at the first instance itself and the Court having not proceeded to decide this question of territorial jurisdiction as contemplated under Order XIV Rule 2 CPC, we think we cannot deny relief to the appellant solely on the ground that the High Court has chosen to proceed to decide the case on merit. This being a judgment of a Court having no territorial jurisdiction, the judgment has to be set aside. However, the special civil applications cannot be dismissed on this ground because it has been the contention of the appellants themselves in the objections filed by them before the High Court, that these applications ought to be transferred to the High Court at Chennai, in the interest of justice, we agree with this plea. | 1[ds]5.Having considered the arguments addressed on behalf of the parties and having perused the records, we are of the considered opinion that the question of jurisdiction should be first decided by us before going into the merits of the case in hand. As a matter of fact, we feel it would have been more appropriate on the facts of these cases if the High Court had proceeded under Order XIV Rule 2 of Civil Procedure Code by deciding the question of jurisdiction as a preliminary issue first instead of deciding the case on merit9.We will now consider how the High Court dealt with this issue. Having noticed the objection filed by the appellants in regard to its territorial jurisdiction, the High Court following the judgment of this Court in the case of Union of India v. Oswal Woollen (supra) held that in view of the observations of this Court in the said case, a civil application can be filed at the place where the registered office of the Company is situated and having regard to the fact that the registered office of they is situated at Ahmedabad, it accepted the argument of the learned counsel for the respondent that it is not necessary to discuss this issue any further, meaning thereby it accepted the contention of the respondents counsel that the High Court at Ahmedabad had the territorial jurisdiction to decide the application10.We are unable to accept this finding of the High Court. The view of the High Court that this Court in the case of Oswal Woollen (supra) had held that the existence of the registered office of a Company would ipso facto give a cause of action to the High Court within whose jurisdiction the registered office of such Company is situated, is not correct. As a matter of fact, in the case of Oswal Woollen (supra), the question of territorial jurisdiction in the sense with which we are concerned now, did not arise at all11.It is in that context of noticing the motive of the parties concerned in that case in choosing a forum, the above observation as to the place of the registered office of the Company was incidentally made in the judgment. Having perused the judgment in Oswals case (supra), we are of the opinion that that judgment is no authority to decide as to the requirement of law in regard to establishing the territorial jurisdiction of a court. We must say in all fairness, Mr. Desai, learned senior counsel, has not placed any reliance on this judgment nor on the basis of the finding of the High Court in this case in regard to its territorial jurisdiction. He, however, contends that from the facts narrated in the civil applications, more so in Paragraph 16 of the application, it is crystal clear that a substantial part of the cause of action has arisen within the jurisdiction of the High Court at Ahmedabad. He pointedly referred to the bundle of facts mentioned in Paragraph 16 of the application as also the additional fact pleaded in Paragraph 7 of the application in regard to the respondents having furnished a bank guarantee as also a Bond in favour of the appellants. He pointed out that the Bank guarantee and the Bond were executed by the respondents at Ahmedabad, hence, at least on this count a part of the cause of action has arisen at Ahmedabad14.Though it is also contended in para 16 of the application that the appellants have their office at Ahmedabad, that contention has not been pressed since it is clear from the records that none of these appellants have their office at Ahmedabad. De hors this fact, if we take into consideration the order facts enumerated hereinabove in support of the cause of action pleaded by the respondents, it is seen that none of these facts is in any way connected with the relief sought for by the respondents in their civil applications so as to constitute the cause of action at Ahmedabad16.It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises. This provision in the Constitution has come up for consideration in a number of cases before this Court17.It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. If we apply this principal then we see that none of the facts pleaded in Paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad18.As we have noticed earlier, the fact that the respondents are carrying on the business of export and import or that they are receiving the export and import orders at Ahmedabad or that their documents and payments for exports and imports are sent/made at Ahmedabad, has no connection whatsoever with the dispute that is involved in the applications. Similarly, the fact that the credit of duty claimed in respect of exports that were made from Chennai were handled by the respondents from Ahmedabad have also no connection whatsoever with the actions of the appellants impugned in the application. Theg and denial of credit in thek having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants. This fact having been specifically pleaded in the application and a relief being sought for that purpose, would definitely give rise to a part of cause of action at Ahmedabad, but on behalf of the appellants, it is pointed out to us that ther involved in the applications pertains to the denial of the benefit of thes scheme which ended w.e.f.7 while the bank guarantee and the Bond in question were not part of the Pass Book Scheme which is ther of the special civil applications with which we are concerned now. Execution of the bank guarantee was not with reference to the demand of the respondents to give it due credit in the pass book but the same was executed much later than7 in regard to certain disputes pending with the customs authorities in regard to the valuations made by the said authorities as to the value of the export and import of prawn and its inputsInclusion of this totally extraneous claim in the present writ petition cannot be construed as being a factor giving rise to a cause of action. In the case of ONGC (supra), this Court negatived the contentions advanced on behalf of the respondents therein that either the acquisition of knowledge made through media at a particular place or owning and having an office or property or residing at a particular place, receiving of a fax message at a particular place, receiving telephone calls and maintaining statements of accounts of business, printing of letterheads indicating branch offices of the firm, booking of orders from a particular place are not the factors which would give rise to either wholly or in part cause of action conferring territorial jurisdiction to Courts. In the said case, this Court also held that the mere service of notice is also not a fact giving rise to a cause of action unless such notice is an integral part of the cause of actionIt is to be noted that in the said petition, among other reliefs, the writ petitioner had prayed for a writ of mandamus to the State of Meghalaya to transfer the investigation to Mumbai Police as also allegations of mala fides were made as to the filing of the complaint at Shillong. It was also averred in that case that the petitioner was primarily aggrieved by the criminal complaint filed at Meghalaya because the bulk of the investigation was carried on at Bombay. The said writ petition was dismissed by the Bombay High Court solely on the ground that since the complaint in question was filed in Shillong in the State of Meghalaya and the petitioner had sought for quashing of the said complaint, such a writ petition was not maintainable before the High Court of Bombay. According to this Court, that finding was given without taking into consideration the other alternative prayers in the writ petition to which we have made reference hereinabove, which prayers according to this Court, gave rise to a cause of action to move the High Court at Bombay for relief. Therefore, in our opinion, this judgment does not help the writ petitioner to justify its action in filing a writ petition before the Gujarat High CourtWe are not inclined to accept this argument of the learned Counsel because the appellants herein had taken objection to the entertainment of the special civil applications by the Gujarat High Court on the ground of lack of territorial jurisdiction in the first instance itself and the same was rejected, according to us, wholly on unsustainable grounds. As a matter of fact, the appellant on the entertainment of the civil application and grant of interim order, had challenged the said order on the ground of want of jurisdiction by way of a civil appeal in this Court which appeal is pending consideration by this Court, therefore, the objection having been taken at the first instance itself and the Court having not proceeded to decide this question of territorial jurisdiction as contemplated under Order XIV Rule 2 CPC, we think we cannot deny relief to the appellant solely on the ground that the High Court has chosen to proceed to decide the case on merit. This being a judgment of a Court having no territorial jurisdiction, the judgment has to be set aside. However, the special civil applications cannot be dismissed on this ground because it has been the contention of the appellants themselves in the objections filed by them before the High Court, that these applications ought to be transferred to the High Court at Chennai, in the interest of justice, we agree with this plea. | 1 | 4,171 | 1,968 | ### Instruction:
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part of the Pass Book Scheme which is the subject-matter of the special civil applications with which we are concerned now. Execution of the bank guarantee was not with reference to the demand of the respondents to give it due credit in the pass book but the same was executed much later than 31-3-1997 in regard to certain disputes pending with the customs authorities in regard to the valuations made by the said authorities as to the value of the export and import of prawn and its inputs. It was also pointed out that these customs authorities, as a matter of fact are not even parties to these special civil applications. Thus, it is contended that the factum of the respondents having executed a bank guarantee and a Bond at Ahmedabad will have no direct nexus or bearing on the disputes involved in these applications. It is pointed out to us by learned counsel for the appellants that in regard to the correctness of the valuation, separate proceedings have been initiated and against the findings in those proceedings, separate appeals are pending in this Court, therefore, the bank guarantee and the Bond executed by the respondents, as a matter of fact, have nothing to do with the cause of action that may arise to challenge the denial of the benefit of the Pass Book Scheme. Inclusion of this totally extraneous claim in the present writ petition cannot be construed as being a factor giving rise to a cause of action. In the case of ONGC (supra), this Court negatived the contentions advanced on behalf of the respondents therein that either the acquisition of knowledge made through media at a particular place or owning and having an office or property or residing at a particular place, receiving of a fax message at a particular place, receiving telephone calls and maintaining statements of accounts of business, printing of letterheads indicating branch offices of the firm, booking of orders from a particular place are not the factors which would give rise to either wholly or in part cause of action conferring territorial jurisdiction to Courts. In the said case, this Court also held that the mere service of notice is also not a fact giving rise to a cause of action unless such notice is an integral part of the cause of action. 20.Mr. Desai, however, placed reliance on a recent judgment of this Court in Navinchandra v. State of Maharashtra (supra) wherein this Court had held that a part of the cause of action had arisen within the jurisdiction of the Bombay High Court. It is to be noted that in the said petition, among other reliefs, the writ petitioner had prayed for a writ of mandamus to the State of Meghalaya to transfer the investigation to Mumbai Police as also allegations of mala fides were made as to the filing of the complaint at Shillong. It was also averred in that case that the petitioner was primarily aggrieved by the criminal complaint filed at Meghalaya because the bulk of the investigation was carried on at Bombay. The said writ petition was dismissed by the Bombay High Court solely on the ground that since the complaint in question was filed in Shillong in the State of Meghalaya and the petitioner had sought for quashing of the said complaint, such a writ petition was not maintainable before the High Court of Bombay. According to this Court, that finding was given without taking into consideration the other alternative prayers in the writ petition to which we have made reference hereinabove, which prayers according to this Court, gave rise to a cause of action to move the High Court at Bombay for relief. Therefore, in our opinion, this judgment does not help the writ petitioner to justify its action in filing a writ petition before the Gujarat High Court. That apart, we must notice that the said judgment is delivered in a matter involving criminal dispute and consequences of such dispute have a direct bearing on the personal freedom of a citizen guaranteed under Article 21 of the Constitution. Therefore, the consideration that arises in deciding the question of territorial jurisdiction in cases involving criminal offences may not always apply to cases involving civil disputes like the special civil applications with which we are concerned. Mr. Desai then urged that since the High Court has elaborately dealt with the merits of the case and given a finding in favour of the respondents in the interest of justice, we should not interfere with the said finding and uphold the same. We are not inclined to accept this argument of the learned Counsel because the appellants herein had taken objection to the entertainment of the special civil applications by the Gujarat High Court on the ground of lack of territorial jurisdiction in the first instance itself and the same was rejected, according to us, wholly on unsustainable grounds. As a matter of fact, the appellant on the entertainment of the civil application and grant of interim order, had challenged the said order on the ground of want of jurisdiction by way of a civil appeal in this Court which appeal is pending consideration by this Court, therefore, the objection having been taken at the first instance itself and the Court having not proceeded to decide this question of territorial jurisdiction as contemplated under Order XIV Rule 2 CPC, we think we cannot deny relief to the appellant solely on the ground that the High Court has chosen to proceed to decide the case on merit. This being a judgment of a Court having no territorial jurisdiction, the judgment has to be set aside. However, the special civil applications cannot be dismissed on this ground because it has been the contention of the appellants themselves in the objections filed by them before the High Court, that these applications ought to be transferred to the High Court at Chennai, in the interest of justice, we agree with this plea.
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which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. If we apply this principal then we see that none of the facts pleaded in Paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad18.As we have noticed earlier, the fact that the respondents are carrying on the business of export and import or that they are receiving the export and import orders at Ahmedabad or that their documents and payments for exports and imports are sent/made at Ahmedabad, has no connection whatsoever with the dispute that is involved in the applications. Similarly, the fact that the credit of duty claimed in respect of exports that were made from Chennai were handled by the respondents from Ahmedabad have also no connection whatsoever with the actions of the appellants impugned in the application. Theg and denial of credit in thek having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants. This fact having been specifically pleaded in the application and a relief being sought for that purpose, would definitely give rise to a part of cause of action at Ahmedabad, but on behalf of the appellants, it is pointed out to us that ther involved in the applications pertains to the denial of the benefit of thes scheme which ended w.e.f.7 while the bank guarantee and the Bond in question were not part of the Pass Book Scheme which is ther of the special civil applications with which we are concerned now. Execution of the bank guarantee was not with reference to the demand of the respondents to give it due credit in the pass book but the same was executed much later than7 in regard to certain disputes pending with the customs authorities in regard to the valuations made by the said authorities as to the value of the export and import of prawn and its inputsInclusion of this totally extraneous claim in the present writ petition cannot be construed as being a factor giving rise to a cause of action. In the case of ONGC (supra), this Court negatived the contentions advanced on behalf of the respondents therein that either the acquisition of knowledge made through media at a particular place or owning and having an office or property or residing at a particular place, receiving of a fax message at a particular place, receiving telephone calls and maintaining statements of accounts of business, printing of letterheads indicating branch offices of the firm, booking of orders from a particular place are not the factors which would give rise to either wholly or in part cause of action conferring territorial jurisdiction to Courts. In the said case, this Court also held that the mere service of notice is also not a fact giving rise to a cause of action unless such notice is an integral part of the cause of actionIt is to be noted that in the said petition, among other reliefs, the writ petitioner had prayed for a writ of mandamus to the State of Meghalaya to transfer the investigation to Mumbai Police as also allegations of mala fides were made as to the filing of the complaint at Shillong. It was also averred in that case that the petitioner was primarily aggrieved by the criminal complaint filed at Meghalaya because the bulk of the investigation was carried on at Bombay. The said writ petition was dismissed by the Bombay High Court solely on the ground that since the complaint in question was filed in Shillong in the State of Meghalaya and the petitioner had sought for quashing of the said complaint, such a writ petition was not maintainable before the High Court of Bombay. According to this Court, that finding was given without taking into consideration the other alternative prayers in the writ petition to which we have made reference hereinabove, which prayers according to this Court, gave rise to a cause of action to move the High Court at Bombay for relief. Therefore, in our opinion, this judgment does not help the writ petitioner to justify its action in filing a writ petition before the Gujarat High CourtWe are not inclined to accept this argument of the learned Counsel because the appellants herein had taken objection to the entertainment of the special civil applications by the Gujarat High Court on the ground of lack of territorial jurisdiction in the first instance itself and the same was rejected, according to us, wholly on unsustainable grounds. As a matter of fact, the appellant on the entertainment of the civil application and grant of interim order, had challenged the said order on the ground of want of jurisdiction by way of a civil appeal in this Court which appeal is pending consideration by this Court, therefore, the objection having been taken at the first instance itself and the Court having not proceeded to decide this question of territorial jurisdiction as contemplated under Order XIV Rule 2 CPC, we think we cannot deny relief to the appellant solely on the ground that the High Court has chosen to proceed to decide the case on merit. This being a judgment of a Court having no territorial jurisdiction, the judgment has to be set aside. However, the special civil applications cannot be dismissed on this ground because it has been the contention of the appellants themselves in the objections filed by them before the High Court, that these applications ought to be transferred to the High Court at Chennai, in the interest of justice, we agree with this plea.
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Chandradhar Goswami & Ors Vs. The Gauhati Bank Ltd | any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under S. 4 of the Bankers Books Evidence Act.We cannot agree with the High Court that the mere fact that the appellants did not specifically mention the sum of Rupees 10,000 as not having been advanced to them in their written statement would make any difference on the facts of the present case. We have already pointed out that the appellants did not admit the correctness of the accounts produced specially after March 1, 1947. We have also pointed out that it was stated on their behalf that nothing was borrowed after March 1, 1947. The main appellant in whose name the account was, appeared as a witness and stated that so far as he remembered he only borrowed Rs. 8,000 from the bank and nothing thereafter. He also stated that he did not remember to have borrowed any sum from the bank after the execution of the mortgage-deed. In the face of this pleading of the appellants and the statement of one of them, the bank had to prove that the sum of Rs. 10,000 was in fact advanced on March 19, 1947 and could not rely on mere entries in the books of account for that purpose. This is clear from the provision in S. 34 of the Evidence Act. No attempt was made on behalf of the bank to prove by any evidence whatsoever that a sum of Rupees 10,000 was advanced on March 19, 1947. The entry in the account books in that connection is to the effect: "To amount paid to Gauhati branch as per D/advice, dated 6th March 1947". If this amount of Rs. 10,000 was paid by the bank on the order of the appellants or any one of them that order should have been produced in support of the entry, and then the entry would have been helpful to the bank as a corroborative piece of evidence. But the bank did nothing of the kind. The only witness produced on behalf of the bank was an officer who had nothing to do with the Tezpur branch where the transactions were entered into.We are, therefore, of opinion that in view of S. 34 of the Evidence Act the appellants cannot be saddled with liability for the sum of Rs. 10,000 said to have been advanced on March 19, 1947 on the basis of a mere entry in the account. Section 34 says that such entry alone shall not be sufficient evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced. What would be the nature of such independent evidence would certainly depend upon the facts of each case, but there can be no doubt that some independent evidence to show that advance had been made has to be given. Further, as in this case the dispute was with respect to one entry of Rs. 10,000, it should not have been difficult for the bank to produce evidence with respect thereto. We cannot, therefore, agree with the High Court that the advance of Rs. 10,000 on March 19, 1947 has been proved in this case.7. It is urged on behalf of the bank that we might give opportunity now to the bank to prove that the money was in fact paid. We are of opinion that it is too late now after 13 years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1, 1947 in the written statement of the appellants. In this view of the matter, the appeal must be allowed with respect to this sum of Rs. 10,000.8. Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Art. 132 of the Limitation Act of 1908). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Art. 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under S. 19 or S. 20 of the Limitation Act for neither a writing, signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Art. 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank upto October 31, 1952. So the bank would get three years from the end of 1949 under Art. 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgaged property. | 1[ds]It is clear from a bare perusal of the section that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellants did not accept the correctness of the books of account. We have already indicated that they went to the length of saying that the accounts were not correctly kept, and were fraudulent. They also said that no money had been taken by them after March 1, 1947. This being their pleading, the trial Court rightly framed the third issue relating to the total amount due from the appellants to the bank. But unfortunately it overlooked to go into that issue specifically and we have already indicated how it made a mistake in arriving at the amount due when considering the issue relating to relief. In any case as the appellants had not admitted the correctness of the accounts filed by the bank, particularly after March 1, 1947, the bank had to prove payment of Rs. 10,000 on March 19, 1947 if it wanted to charge the appellants with liability for thatwill be clear that S. 4 gives a special privilege to banks and allows certified copies of their accounts to be produced by them and those certified copies become prima facie evidence of the existence of the original entries in the accounts and are admitted as evidence of matters, transactions and accounts therein, but such admission is only where, and to the same extent as, the original entry itself would be admissible by law and not further or otherwise. Original entries alone under S. 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under S. 4 of the Bankers Books Evidence Act obviously cannot charge any person with liability. Therefore, where the entries are not admitted it is the duty of the bank if it relies on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under S. 4 of the Bankers Books Evidence Act.We cannot agree with the High Court that the mere fact that the appellants did not specifically mention the sum of Rupees 10,000 as not having been advanced to them in their written statement would make any difference on the facts of the present case. We have already pointed out that the appellants did not admit the correctness of the accounts produced specially after March 1, 1947. We have also pointed out that it was stated on their behalf that nothing was borrowed after March 1, 1947. The main appellant in whose name the account was, appeared as a witness and stated that so far as he remembered he only borrowed Rs. 8,000 from the bank and nothing thereafter. He also stated that he did not remember to have borrowed any sum from the bank after the execution of the mortgage-deed. In the face of this pleading of the appellants and the statement of one of them, the bank had to prove that the sum of Rs. 10,000 was in fact advanced on March 19, 1947 and could not rely on mere entries in the books of account for that purpose. This is clear from the provision in S. 34 of the Evidence Act. No attempt was made on behalf of the bank to prove by any evidence whatsoever that a sum of Rupees 10,000 was advanced on March 19, 1947. The entry in the account books in that connection is to the effect: "To amount paid to Gauhati branch as per D/advice, dated 6th March 1947". If this amount of Rs. 10,000 was paid by the bank on the order of the appellants or any one of them that order should have been produced in support of the entry, and then the entry would have been helpful to the bank as a corroborative piece of evidence. But the bank did nothing of the kind. The only witness produced on behalf of the bank was an officer who had nothing to do with the Tezpur branch where the transactions were entered into.We are, therefore, of opinion that in view of S. 34 of the Evidence Act the appellants cannot be saddled with liability for the sum of Rs. 10,000 said to have been advanced on March 19, 1947 on the basis of a mere entry in the account. Section 34 says that such entry alone shall not be sufficient evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced. What would be the nature of such independent evidence would certainly depend upon the facts of each case, but there can be no doubt that some independent evidence to show that advance had been made has to be given. Further, as in this case the dispute was with respect to one entry of Rs. 10,000, it should not have been difficult for the bank to produce evidence with respect thereto. We cannot, therefore, agree with the High Court that the advance of Rs. 10,000 on March 19, 1947 has been proved in thissuit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Art. 132 of the Limitation Act of 1908). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Art. 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under S. 19 or S. 20 of the Limitation Act for neither a writing, signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Art. 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank upto October 31, 1952. So the bank would get three years from the end of 1949 under Art. 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgagedare of opinion that it is too late now after 13 years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1, 1947 in the written statement of the appellants.In this view of the matter, the appeal must be allowed with respect to this sum of Rs. 10,000. | 1 | 2,887 | 1,465 | ### Instruction:
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any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under S. 4 of the Bankers Books Evidence Act.We cannot agree with the High Court that the mere fact that the appellants did not specifically mention the sum of Rupees 10,000 as not having been advanced to them in their written statement would make any difference on the facts of the present case. We have already pointed out that the appellants did not admit the correctness of the accounts produced specially after March 1, 1947. We have also pointed out that it was stated on their behalf that nothing was borrowed after March 1, 1947. The main appellant in whose name the account was, appeared as a witness and stated that so far as he remembered he only borrowed Rs. 8,000 from the bank and nothing thereafter. He also stated that he did not remember to have borrowed any sum from the bank after the execution of the mortgage-deed. In the face of this pleading of the appellants and the statement of one of them, the bank had to prove that the sum of Rs. 10,000 was in fact advanced on March 19, 1947 and could not rely on mere entries in the books of account for that purpose. This is clear from the provision in S. 34 of the Evidence Act. No attempt was made on behalf of the bank to prove by any evidence whatsoever that a sum of Rupees 10,000 was advanced on March 19, 1947. The entry in the account books in that connection is to the effect: "To amount paid to Gauhati branch as per D/advice, dated 6th March 1947". If this amount of Rs. 10,000 was paid by the bank on the order of the appellants or any one of them that order should have been produced in support of the entry, and then the entry would have been helpful to the bank as a corroborative piece of evidence. But the bank did nothing of the kind. The only witness produced on behalf of the bank was an officer who had nothing to do with the Tezpur branch where the transactions were entered into.We are, therefore, of opinion that in view of S. 34 of the Evidence Act the appellants cannot be saddled with liability for the sum of Rs. 10,000 said to have been advanced on March 19, 1947 on the basis of a mere entry in the account. Section 34 says that such entry alone shall not be sufficient evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced. What would be the nature of such independent evidence would certainly depend upon the facts of each case, but there can be no doubt that some independent evidence to show that advance had been made has to be given. Further, as in this case the dispute was with respect to one entry of Rs. 10,000, it should not have been difficult for the bank to produce evidence with respect thereto. We cannot, therefore, agree with the High Court that the advance of Rs. 10,000 on March 19, 1947 has been proved in this case.7. It is urged on behalf of the bank that we might give opportunity now to the bank to prove that the money was in fact paid. We are of opinion that it is too late now after 13 years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1, 1947 in the written statement of the appellants. In this view of the matter, the appeal must be allowed with respect to this sum of Rs. 10,000.8. Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Art. 132 of the Limitation Act of 1908). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Art. 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under S. 19 or S. 20 of the Limitation Act for neither a writing, signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Art. 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank upto October 31, 1952. So the bank would get three years from the end of 1949 under Art. 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgaged property.
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such copies produced under S. 4 of the Bankers Books Evidence Act obviously cannot charge any person with liability. Therefore, where the entries are not admitted it is the duty of the bank if it relies on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under S. 4 of the Bankers Books Evidence Act.We cannot agree with the High Court that the mere fact that the appellants did not specifically mention the sum of Rupees 10,000 as not having been advanced to them in their written statement would make any difference on the facts of the present case. We have already pointed out that the appellants did not admit the correctness of the accounts produced specially after March 1, 1947. We have also pointed out that it was stated on their behalf that nothing was borrowed after March 1, 1947. The main appellant in whose name the account was, appeared as a witness and stated that so far as he remembered he only borrowed Rs. 8,000 from the bank and nothing thereafter. He also stated that he did not remember to have borrowed any sum from the bank after the execution of the mortgage-deed. In the face of this pleading of the appellants and the statement of one of them, the bank had to prove that the sum of Rs. 10,000 was in fact advanced on March 19, 1947 and could not rely on mere entries in the books of account for that purpose. This is clear from the provision in S. 34 of the Evidence Act. No attempt was made on behalf of the bank to prove by any evidence whatsoever that a sum of Rupees 10,000 was advanced on March 19, 1947. The entry in the account books in that connection is to the effect: "To amount paid to Gauhati branch as per D/advice, dated 6th March 1947". If this amount of Rs. 10,000 was paid by the bank on the order of the appellants or any one of them that order should have been produced in support of the entry, and then the entry would have been helpful to the bank as a corroborative piece of evidence. But the bank did nothing of the kind. The only witness produced on behalf of the bank was an officer who had nothing to do with the Tezpur branch where the transactions were entered into.We are, therefore, of opinion that in view of S. 34 of the Evidence Act the appellants cannot be saddled with liability for the sum of Rs. 10,000 said to have been advanced on March 19, 1947 on the basis of a mere entry in the account. Section 34 says that such entry alone shall not be sufficient evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced. What would be the nature of such independent evidence would certainly depend upon the facts of each case, but there can be no doubt that some independent evidence to show that advance had been made has to be given. Further, as in this case the dispute was with respect to one entry of Rs. 10,000, it should not have been difficult for the bank to produce evidence with respect thereto. We cannot, therefore, agree with the High Court that the advance of Rs. 10,000 on March 19, 1947 has been proved in thissuit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Art. 132 of the Limitation Act of 1908). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Art. 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under S. 19 or S. 20 of the Limitation Act for neither a writing, signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Art. 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank upto October 31, 1952. So the bank would get three years from the end of 1949 under Art. 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgagedare of opinion that it is too late now after 13 years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1, 1947 in the written statement of the appellants.In this view of the matter, the appeal must be allowed with respect to this sum of Rs. 10,000.
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Securities & Exchange Board Of India Vs. Kishore R.Ajmera | screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test, in our considered view, is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned. Prosecution under Section 24 of the Act for violation of the provisions of any of the Regulations, of course, has to be on the basis of proof beyond reasonable doubt. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors. The fact that the broker himself has initiated the sale of a particular quantity of the scrip on any particular day and at the end of the day approximately equal number of the same scrip has come back to him; that trading has gone on without settlement of accounts i.e. without any payment and the volume of trading in the illiquid scrips, all, should raise a serious doubt in a reasonable man as to whether the trades are genuine. The failure of the brokers/sub-brokers to alert themselves to this minimum requirement and their persistence in trading in the particular scrip either over a long period of time or in respect of huge volumes thereof, in our considered view, would not only disclose negligence and lack of due care and caution but would also demonstrate a deliberate intention to indulge in trading beyond the forbidden limits thereby attracting the provisions of the FUTP Regulations. The difference between violation of the Code of Conduct Regulations and the FUTP Regulations would depend on the extent of the persistence on the part of the broker in indulging with transactions of the kind that has occurred in the present cases. Upto an extent such conduct on the part of the brokers/sub-brokers can be attributed to negligence occasioned by lack of due care and caution.Beyond the same, persistent trading would show a deliberate intention to play the market. The dividing line has to be drawn on the basis of the volume of the transactions and the period of time that the same were indulged in. In the present cases it is clear from all these surrounding facts and circumstances that there has been transgressions by the respondents beyond the permissible dividing line between negligence and deliberate intention.27. Insofar as the plea of violation of principles of natural justice, as raised on behalf of the respondent in C.A.No.282/2014 (Monarch Networth Capital Ltd.) is concerned, we do not think the same to be justified in any manner. The relevant extracts of the trade log which have been perused by us, in view of the clear picture disclosed with regard to the particulars of the offending transactions, must be held to be sufficient compliance of the requirement of furnishing adverse materials to the affected party. It is not the case of the respondents that such trading in the scrips in question had been a regular feature all along. Insofar as the statement of Indumati Gowda is concerned, it is the stand of the SEBI that the same was not relied upon to come to the impugned conclusions and findings. The statement of Shirish Shah, who admittedly was behind the manipulative practices in question through the brokers, was definitely not the foundation of the impugned findings recorded by the Whole Time Member of SEBI. The statement of Shirish Shah, even if not furnished to the respondent brokers, would not materially alter the situation inasmuch as it is the liability of the respondent-brokers, on account of their failure to correct the huge irregularities that were going on through their terminals, that was the subject matter of consideration of the Whole Time Member.28. The fact that on behalf of the client Indumati Gowda similar transactions were entered into in respect of other illiquid scrips which did not disclose any irregularities can hardly be a ground to overlook what has happened in case of the scrip involved in which the respondent Monarch Networth Capital Limited had indulged in.29. There is yet another argument advanced on behalf of the respondent -Monarch Networth Capital Limited, namely, that two of the brokers who were allegedly involved in circular trading were let off with monetary penalty. It is also argued that in case of M/s Ess Ess Intermediaries Pvt. Ltd., M/s Rajesh N. Jhaveri and M/s Rajendra Jayantilal Shah [second category] monetary penalty has been imposed for indulging in manipulative trading under the FUTP Regulations. On the said basis, it is submitted that a lesser penalty of monetary compensation would be justified.30. We disagree with the above contention. The stage at which the monetary penalty was imposed on the two other brokers indulging in circular trading is prior to any determination of liability of the said two brokers who did not contest the charges. In the case of M/s Monarch Networth Capital Limited the stage has advanced far beyond the above and had culminated in operative findings against the said sub-broker. The imposition of monetary penalty in the case of M/s. Ess Ess Intermediaries Pvt. Ltd., M/s. Rajesh N. Jhaveri and M/s. Rajendra Jayantilal Shah [second category] for violation of the FUTP Regulations cannot be a basis for alteration of the punishment of suspension imposed on M/s. Monarch Networth Capital Limited to one of monetary penalty. In this regard, provisions of Section 15J of the SEBI Act has to be kept in mind and if the primary authority had thought it proper to impose different penalties in different cases involving different set of facts, we do not see how and why interference should be made in present appeals. | 0[ds]24. Insofar as first case (C.A. No.2818 of 2008 SEBI Vs. Kishore R. Ajmera) is concerned the proved facts are asBoth the clients are known to each other and were related entities.(ii) This fact was also known to the sub-broker and the respondent – broker.(iii) The clients through the sub-broker had engaged in mutual buy and sell trades in the scrip in question, volume of which trade was significant, keeping in mind that the scrip was an illiquidfrom the above there is no other material to hold either lack of vigilance or bona fides on the part of the sub-broker so as to make respondent-broker liable. An irresistible or irreversible inference of negligence/lack of due care etc., in our considered view, is not established even on proof of the primary facts alleged so as to make respondent-broker liable under the Conduct Regulations, 1992 as has been held in the order of the Whole Time Member, SEBI which, according to us, was rightly reversed in appeal by the Securities Appellate Tribunal.25. This will take us to the second and third category of cases i.e. M/s Ess Ess Intermediaries Pvt. Ltd., M/s Rajesh N. Jhaveri and M/s Rajendra Jayantilal Shah [second category] and M/s Monarch Networth Capital Limited (earlier known as Networth Stock Broking Limited) [third category]. In these cases the volume of trading in the illiquid scrips in question was huge, the extent being set out hereinabove. Coupled with the aforesaid fact, what has been alleged and reasonably established, is that buy and sell orders in respect of the transactions were made within a span of 0 to 60 seconds. While the said fact by itself i.e. proximity of time between the buy and sell orders may not be conclusive in an isolated case such an event in a situation where there is a huge volume of trading can reasonably point to some kind of a fraudulent/manipulative exercise with prior meeting of minds. Such meeting of minds so as to attract the liability of the broker/sub-broker may be between the broker/sub-broker and the client or it could be between the two brokers/sub-brokers engaged in the buy and sell transactions. When over a period of time such transactions had been made between the same set of brokers or a group of brokers a conclusion can be reasonably reached that there is a concerted effort on the part of the concerned brokers to indulge in synchronized trades the consequence of which is large volumes of fictitious trading resulting in the unnatural rise in hiking the price/value of the scrip(s). It must be specifically taken note of herein that the trades in question were noted in accordance with the terms of theCirculars issued from time to time. A negotiated trade, it is clarified, invokes consensual bargaining involving synchronizing of buy and sell orders which will result in matching thereof but only as per permissible parameters which are programmed accordingly.26. It has been vehemently argued before us that on a screen based trading the identity of the 2nd party be it the client or the broker is not known to the first party/client or broker. According to us, knowledge of who the 2nd party/ client or the broker is, is not relevant at all. While the screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test, in our considered view, is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned. Prosecution under Section 24 of the Act for violation of the provisions of any of the Regulations, of course, has to be on the basis of proof beyond reasonable doubt. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors. The fact that the broker himself has initiated the sale of a particular quantity of the scrip on any particular day and at the end of the day approximately equal number of the same scrip has come back to him; that trading has gone on without settlement of accounts i.e. without any payment and the volume of trading in the illiquid scrips, all, should raise a serious doubt in a reasonable man as to whether the trades are genuine. The failure of the brokers/sub-brokers to alert themselves to this minimum requirement and their persistence in trading in the particular scrip either over a long period of time or in respect of huge volumes thereof, in our considered view, would not only disclose negligence and lack of due care and caution but would also demonstrate a deliberate intention to indulge in trading beyond the forbidden limits thereby attracting the provisions of the FUTP Regulations. The difference between violation of the Code of Conduct Regulations and the FUTP Regulations would depend on the extent of the persistence on the part of the broker in indulging with transactions of the kind that has occurred in the present cases. Upto an extent such conduct on the part of the brokers/sub-brokers can be attributed to negligence occasioned by lack of due care and caution.Beyond the same, persistent trading would show a deliberate intention to play the market. The dividing line has to be drawn on the basis of the volume of the transactions and the period of time that the same were indulged in. In the present cases it is clear from all these surrounding facts and circumstances that there has been transgressions by the respondents beyond the permissible dividing line between negligence and deliberate intention.27. Insofar as the plea of violation of principles of natural justice, as raised on behalf of the respondent in C.A.No.282/2014 (Monarch Networth Capital Ltd.) is concerned, we do not think the same to be justified in any manner. The relevant extracts of the trade log which have been perused by us, in view of the clear picture disclosed with regard to the particulars of the offending transactions, must be held to be sufficient compliance of the requirement of furnishing adverse materials to the affected party. It is not the case of the respondents that such trading in the scrips in question had been a regular feature all along. Insofar as the statement of Indumati Gowda is concerned, it is the stand of the SEBI that the same was not relied upon to come to the impugned conclusions and findings. The statement of Shirish Shah, who admittedly was behind the manipulative practices in question through the brokers, was definitely not the foundation of the impugned findings recorded by the Whole Time Member of SEBI. The statement of Shirish Shah, even if not furnished to the respondent brokers, would not materially alter the situation inasmuch as it is the liability of the respondent-brokers, on account of their failure to correct the huge irregularities that were going on through their terminals, that was the subject matter of consideration of the Whole Time Member.28. The fact that on behalf of the client Indumati Gowda similar transactions were entered into in respect of other illiquid scrips which did not disclose any irregularities can hardly be a ground to overlook what has happened in case of the scrip involved in which the respondent Monarch Networth Capital Limited had indulged in.29. There is yet another argument advanced on behalf of the respondent -Monarch Networth Capital Limited, namely, that two of the brokers who were allegedly involved in circular trading were let off with monetary penalty. It is also argued that in case of M/s Ess Ess Intermediaries Pvt. Ltd., M/s Rajesh N. Jhaveri and M/s Rajendra Jayantilal Shah [second category] monetary penalty has been imposed for indulging in manipulative trading under the FUTP Regulations. On the said basis, it is submitted that a lesser penalty of monetary compensation would be justified.30. We disagree with the above contention. The stage at which the monetary penalty was imposed on the two other brokers indulging in circular trading is prior to any determination of liability of the said two brokers who did not contest the charges. In the case of M/s Monarch Networth Capital Limited the stage has advanced far beyond the above and had culminated in operative findings against the said sub-broker. The imposition of monetary penalty in the case of M/s. Ess Ess Intermediaries Pvt. Ltd., M/s. Rajesh N. Jhaveri and M/s. Rajendra Jayantilal Shah [second category] for violation of the FUTP Regulations cannot be a basis for alteration of the punishment of suspension imposed on M/s. Monarch Networth Capital Limited to one of monetary penalty. In this regard, provisions of Section 15J of the SEBI Act has to be kept in mind and if the primary authority had thought it proper to impose different penalties in different cases involving different set of facts, we do not see how and why interference should be made in present appeals. | 0 | 6,745 | 1,670 | ### 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:
screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test, in our considered view, is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned. Prosecution under Section 24 of the Act for violation of the provisions of any of the Regulations, of course, has to be on the basis of proof beyond reasonable doubt. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors. The fact that the broker himself has initiated the sale of a particular quantity of the scrip on any particular day and at the end of the day approximately equal number of the same scrip has come back to him; that trading has gone on without settlement of accounts i.e. without any payment and the volume of trading in the illiquid scrips, all, should raise a serious doubt in a reasonable man as to whether the trades are genuine. The failure of the brokers/sub-brokers to alert themselves to this minimum requirement and their persistence in trading in the particular scrip either over a long period of time or in respect of huge volumes thereof, in our considered view, would not only disclose negligence and lack of due care and caution but would also demonstrate a deliberate intention to indulge in trading beyond the forbidden limits thereby attracting the provisions of the FUTP Regulations. The difference between violation of the Code of Conduct Regulations and the FUTP Regulations would depend on the extent of the persistence on the part of the broker in indulging with transactions of the kind that has occurred in the present cases. Upto an extent such conduct on the part of the brokers/sub-brokers can be attributed to negligence occasioned by lack of due care and caution.Beyond the same, persistent trading would show a deliberate intention to play the market. The dividing line has to be drawn on the basis of the volume of the transactions and the period of time that the same were indulged in. In the present cases it is clear from all these surrounding facts and circumstances that there has been transgressions by the respondents beyond the permissible dividing line between negligence and deliberate intention.27. Insofar as the plea of violation of principles of natural justice, as raised on behalf of the respondent in C.A.No.282/2014 (Monarch Networth Capital Ltd.) is concerned, we do not think the same to be justified in any manner. The relevant extracts of the trade log which have been perused by us, in view of the clear picture disclosed with regard to the particulars of the offending transactions, must be held to be sufficient compliance of the requirement of furnishing adverse materials to the affected party. It is not the case of the respondents that such trading in the scrips in question had been a regular feature all along. Insofar as the statement of Indumati Gowda is concerned, it is the stand of the SEBI that the same was not relied upon to come to the impugned conclusions and findings. The statement of Shirish Shah, who admittedly was behind the manipulative practices in question through the brokers, was definitely not the foundation of the impugned findings recorded by the Whole Time Member of SEBI. The statement of Shirish Shah, even if not furnished to the respondent brokers, would not materially alter the situation inasmuch as it is the liability of the respondent-brokers, on account of their failure to correct the huge irregularities that were going on through their terminals, that was the subject matter of consideration of the Whole Time Member.28. The fact that on behalf of the client Indumati Gowda similar transactions were entered into in respect of other illiquid scrips which did not disclose any irregularities can hardly be a ground to overlook what has happened in case of the scrip involved in which the respondent Monarch Networth Capital Limited had indulged in.29. There is yet another argument advanced on behalf of the respondent -Monarch Networth Capital Limited, namely, that two of the brokers who were allegedly involved in circular trading were let off with monetary penalty. It is also argued that in case of M/s Ess Ess Intermediaries Pvt. Ltd., M/s Rajesh N. Jhaveri and M/s Rajendra Jayantilal Shah [second category] monetary penalty has been imposed for indulging in manipulative trading under the FUTP Regulations. On the said basis, it is submitted that a lesser penalty of monetary compensation would be justified.30. We disagree with the above contention. The stage at which the monetary penalty was imposed on the two other brokers indulging in circular trading is prior to any determination of liability of the said two brokers who did not contest the charges. In the case of M/s Monarch Networth Capital Limited the stage has advanced far beyond the above and had culminated in operative findings against the said sub-broker. The imposition of monetary penalty in the case of M/s. Ess Ess Intermediaries Pvt. Ltd., M/s. Rajesh N. Jhaveri and M/s. Rajendra Jayantilal Shah [second category] for violation of the FUTP Regulations cannot be a basis for alteration of the punishment of suspension imposed on M/s. Monarch Networth Capital Limited to one of monetary penalty. In this regard, provisions of Section 15J of the SEBI Act has to be kept in mind and if the primary authority had thought it proper to impose different penalties in different cases involving different set of facts, we do not see how and why interference should be made in present appeals.
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### Explanation:
screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test, in our considered view, is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned. Prosecution under Section 24 of the Act for violation of the provisions of any of the Regulations, of course, has to be on the basis of proof beyond reasonable doubt. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors. The fact that the broker himself has initiated the sale of a particular quantity of the scrip on any particular day and at the end of the day approximately equal number of the same scrip has come back to him; that trading has gone on without settlement of accounts i.e. without any payment and the volume of trading in the illiquid scrips, all, should raise a serious doubt in a reasonable man as to whether the trades are genuine. The failure of the brokers/sub-brokers to alert themselves to this minimum requirement and their persistence in trading in the particular scrip either over a long period of time or in respect of huge volumes thereof, in our considered view, would not only disclose negligence and lack of due care and caution but would also demonstrate a deliberate intention to indulge in trading beyond the forbidden limits thereby attracting the provisions of the FUTP Regulations. The difference between violation of the Code of Conduct Regulations and the FUTP Regulations would depend on the extent of the persistence on the part of the broker in indulging with transactions of the kind that has occurred in the present cases. Upto an extent such conduct on the part of the brokers/sub-brokers can be attributed to negligence occasioned by lack of due care and caution.Beyond the same, persistent trading would show a deliberate intention to play the market. The dividing line has to be drawn on the basis of the volume of the transactions and the period of time that the same were indulged in. In the present cases it is clear from all these surrounding facts and circumstances that there has been transgressions by the respondents beyond the permissible dividing line between negligence and deliberate intention.27. Insofar as the plea of violation of principles of natural justice, as raised on behalf of the respondent in C.A.No.282/2014 (Monarch Networth Capital Ltd.) is concerned, we do not think the same to be justified in any manner. The relevant extracts of the trade log which have been perused by us, in view of the clear picture disclosed with regard to the particulars of the offending transactions, must be held to be sufficient compliance of the requirement of furnishing adverse materials to the affected party. It is not the case of the respondents that such trading in the scrips in question had been a regular feature all along. Insofar as the statement of Indumati Gowda is concerned, it is the stand of the SEBI that the same was not relied upon to come to the impugned conclusions and findings. The statement of Shirish Shah, who admittedly was behind the manipulative practices in question through the brokers, was definitely not the foundation of the impugned findings recorded by the Whole Time Member of SEBI. The statement of Shirish Shah, even if not furnished to the respondent brokers, would not materially alter the situation inasmuch as it is the liability of the respondent-brokers, on account of their failure to correct the huge irregularities that were going on through their terminals, that was the subject matter of consideration of the Whole Time Member.28. The fact that on behalf of the client Indumati Gowda similar transactions were entered into in respect of other illiquid scrips which did not disclose any irregularities can hardly be a ground to overlook what has happened in case of the scrip involved in which the respondent Monarch Networth Capital Limited had indulged in.29. There is yet another argument advanced on behalf of the respondent -Monarch Networth Capital Limited, namely, that two of the brokers who were allegedly involved in circular trading were let off with monetary penalty. It is also argued that in case of M/s Ess Ess Intermediaries Pvt. Ltd., M/s Rajesh N. Jhaveri and M/s Rajendra Jayantilal Shah [second category] monetary penalty has been imposed for indulging in manipulative trading under the FUTP Regulations. On the said basis, it is submitted that a lesser penalty of monetary compensation would be justified.30. We disagree with the above contention. The stage at which the monetary penalty was imposed on the two other brokers indulging in circular trading is prior to any determination of liability of the said two brokers who did not contest the charges. In the case of M/s Monarch Networth Capital Limited the stage has advanced far beyond the above and had culminated in operative findings against the said sub-broker. The imposition of monetary penalty in the case of M/s. Ess Ess Intermediaries Pvt. Ltd., M/s. Rajesh N. Jhaveri and M/s. Rajendra Jayantilal Shah [second category] for violation of the FUTP Regulations cannot be a basis for alteration of the punishment of suspension imposed on M/s. Monarch Networth Capital Limited to one of monetary penalty. In this regard, provisions of Section 15J of the SEBI Act has to be kept in mind and if the primary authority had thought it proper to impose different penalties in different cases involving different set of facts, we do not see how and why interference should be made in present appeals.
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Commissioner of Income Tax, Mysore Vs. Shah Jethaji Phulchand | shall be terminated at the will of any of the partners(5) That the partners shall have a right to borrow any money required for partnership business at prevailing rate of interest(9) That the profits and loss of the company shall be shared by the partners in the following proportions irrespective of the contribution of the capitalIst party shall be entitled to Rs. 0-3-6IInd party shall be entitled to Rs. 0-3-0IIIrd party shall be entitled to Rs. 0-3-3IVth party shall be entitled to Rs. 0-3-0Vth party shall be entitled to Rs. 0-3-3Half an anna of the profits shall be credited to the Charity Fund. The portion of loss to be contributed by the 3rd party is to be borne by the first party and adjusted in the accounts(16) That (1) Nathmal Jethaji, (2) Phulchand Nathmal, (3) Sakalchand Thikmaji shall be working partners. They shall have the right of doing business, borrowing moneys from banks and other persons, drawing cheques on the account of the firm in the banks and generally they shall have all the rights connected with the business."The Income-tax Officer rejected the applications for registration for 1953-54 and 1954-55 on the ground that there were no valid applications for renewal of registration. Apparently the firm had been registered in the earlier assessment years5. For the assessment year 1953-54, the Appallate Assistant Commissioner, inter alia, held that the partnership deed on which the application was based was defective. He observed : " The minor is made a party of the partnership through Nathmal Jethaji, the natural father, who is incidentally not the real guardian as discussed already. No minor can enter into a contract for partnership either by himself or through a guardian. " For the assessment year 1954-55, he held that although the minor was not liable for loss but he was described as a partner and was vested with all the rights relating to the conduct of business along with the other partners and was thus treated as a full-fledged partner. He held that the contract of partnership was void in law, and, therefore, the firm could not be registered6. The Appellate Tribunal, by one order, disposed of the two appeals relating to both the assessment years. Relying on Jakka Devayya and Sons v. Commissioner of Income-tax, it held that the minor could be regarded as only having been admitted to the benefits of partnership. The High Court, on reference, as already stated, answered the question in favour of the assessee7. We have just delivered judgment in Commissioner of Income-tax v. Shah Mohandas Sadhuram. In that case we have held that a partnership deed must be construed reasonably and that a guardian is entitled to do all things necessary for effectuating the conferment of the benefits of partnership8. The question then arises whether the deed makes the minor a full partner or he has been admitted only to the benefits of partnership. There is no doubt that on a true interpretation of sub-clause (9), the minor is not to bear any losses ; the losses are to be borne by Nathmal Jethaji. Sub-clause (16) does not make the minor a working partner. The only persons who were entitled to be the working partners are Nathmal Jethaji, Phulchand Nathmal and Sakalchand Thikmaji. It is in the light of these clauses that the other clauses should be construedMr. Karkhanis drew our attention to sub-clause (2) requiring the third party to contribute Rs. 70, 000. There is no provision that the minor will not be entitled to share in profits unless the capital is contributed, for under sub-clause (9) partners are entitled to share in profits irrespective of the contribution of capital. At any rate, as held in Shah Mohan Dass case, a guardian can agree to contribute capital. Sub-clause (3) of clause 4 of the partnership deed, which enables the partners to individually carry on the other business, cannot affect the validity of the deed. Mr. Karkhanis relies specially on sub-clause (4) which states that the partnership shall be terminated at the will of any of the partners. But this clause is a general clause usually found in partnership deeds and it cannot be said that this clause enables the minor partner to terminate the partnership itself, and in the context it only means, as far as the minor is concerned, that the guardian would be entitled to exercise his right of severance given to him by section 30 of the Partnership Act. Sub-clause (5) which enables partners to borrow money obviously has to be read along with sub-clause (16) by which only the three major partners have been designated as working partners. It seems to us that the minor has not been made a full partner but has only been given the benefits of partnership9. But the final objection of Mr. Karkhanis requires serious consideration. He says that the guardian has by clause 3 and sub-clause 4(1) purported, to agree to the starting of business and the constitution of a firm. This, according to him, he was not entitled to do and clauses 3 and 4(1) are void. The learned counsel for the respondent tried to sustain these clauses on the ground that the guardian must be deemed to have acted on his own behalf. But we are unable to sustain these clauses on this ground. Then the question arises : Can a guardian agree to the starting of a business and the constitution of a firm on the condition that the minor shall not be a full partner but only entitled to the benefits of partnership? In our opinion, there is no bar in law to the guardian entering into such a contract, for he is only securing the conferment of benefits of partnership on a minorTherefore, in our opinion, no fatal defect has been pointed out by the learned counsel for the appellant. Accordingly we hold that the assessee-firm is entitled to be registered, and agreeing with the High Court, we answer the question in the affirmative | 0[ds]7. We have just delivered judgment in Commissioner ofv. Shah Mohandas Sadhuram. In that case we have held that a partnership deed must be construed reasonably and that a guardian is entitled to do all things necessary for effectuating the conferment of the benefits of partnershipThere is no doubt that on a true interpretation of(9), the minor is not to bear any losses ; the losses are to be borne by Nathmal Jethaji.(16) does not make the minor a working partner. The only persons who were entitled to be the working partners are Nathmal Jethaji, Phulchand Nathmal and Sakalchand Thikmaji. It is in the light of these clauses that the other clauses should beThere is no provision that the minor will not be entitled to share in profits unless the capital is contributed, for under(9) partners are entitled to share in profits irrespective of the contribution of capital. At any rate, as held in Shah Mohan Dass case, a guardian can agree to contribute capital.(3) of clause 4 of the partnership deed, which enables the partners to individually carry on the other business, cannot affect the validity of the deed. Mr. Karkhanis relies specially on(4) which states that the partnership shall be terminated at the will of any of the partners. But this clause is a general clause usually found in partnership deeds and it cannot be said that this clause enables the minor partner to terminate the partnership itself, and in the context it only means, as far as the minor is concerned, that the guardian would be entitled to exercise his right of severance given to him by section 30 of the Partnership Act.(5) which enables partners to borrow money obviously has to be read along with(16) by which only the three major partners have been designated as working partners. It seems to us that the minor has not been made a full partner but has only been given the benefits of partnershipBut we are unable to sustain these clauses on this ground. Then the question arises : Can a guardian agree to the starting of a business and the constitution of a firm on the condition that the minor shall not be a full partner but only entitled to the benefits of partnership? In our opinion, there is no bar in law to the guardian entering into such a contract, for he is only securing the conferment of benefits of partnership on a minorTherefore, in our opinion, no fatal defect has been pointed out by the learned counsel for the appellant. Accordingly we hold that theis entitled to be registered, and agreeing with the High Court, we answer the question in the affirmative | 0 | 1,650 | 504 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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shall be terminated at the will of any of the partners(5) That the partners shall have a right to borrow any money required for partnership business at prevailing rate of interest(9) That the profits and loss of the company shall be shared by the partners in the following proportions irrespective of the contribution of the capitalIst party shall be entitled to Rs. 0-3-6IInd party shall be entitled to Rs. 0-3-0IIIrd party shall be entitled to Rs. 0-3-3IVth party shall be entitled to Rs. 0-3-0Vth party shall be entitled to Rs. 0-3-3Half an anna of the profits shall be credited to the Charity Fund. The portion of loss to be contributed by the 3rd party is to be borne by the first party and adjusted in the accounts(16) That (1) Nathmal Jethaji, (2) Phulchand Nathmal, (3) Sakalchand Thikmaji shall be working partners. They shall have the right of doing business, borrowing moneys from banks and other persons, drawing cheques on the account of the firm in the banks and generally they shall have all the rights connected with the business."The Income-tax Officer rejected the applications for registration for 1953-54 and 1954-55 on the ground that there were no valid applications for renewal of registration. Apparently the firm had been registered in the earlier assessment years5. For the assessment year 1953-54, the Appallate Assistant Commissioner, inter alia, held that the partnership deed on which the application was based was defective. He observed : " The minor is made a party of the partnership through Nathmal Jethaji, the natural father, who is incidentally not the real guardian as discussed already. No minor can enter into a contract for partnership either by himself or through a guardian. " For the assessment year 1954-55, he held that although the minor was not liable for loss but he was described as a partner and was vested with all the rights relating to the conduct of business along with the other partners and was thus treated as a full-fledged partner. He held that the contract of partnership was void in law, and, therefore, the firm could not be registered6. The Appellate Tribunal, by one order, disposed of the two appeals relating to both the assessment years. Relying on Jakka Devayya and Sons v. Commissioner of Income-tax, it held that the minor could be regarded as only having been admitted to the benefits of partnership. The High Court, on reference, as already stated, answered the question in favour of the assessee7. We have just delivered judgment in Commissioner of Income-tax v. Shah Mohandas Sadhuram. In that case we have held that a partnership deed must be construed reasonably and that a guardian is entitled to do all things necessary for effectuating the conferment of the benefits of partnership8. The question then arises whether the deed makes the minor a full partner or he has been admitted only to the benefits of partnership. There is no doubt that on a true interpretation of sub-clause (9), the minor is not to bear any losses ; the losses are to be borne by Nathmal Jethaji. Sub-clause (16) does not make the minor a working partner. The only persons who were entitled to be the working partners are Nathmal Jethaji, Phulchand Nathmal and Sakalchand Thikmaji. It is in the light of these clauses that the other clauses should be construedMr. Karkhanis drew our attention to sub-clause (2) requiring the third party to contribute Rs. 70, 000. There is no provision that the minor will not be entitled to share in profits unless the capital is contributed, for under sub-clause (9) partners are entitled to share in profits irrespective of the contribution of capital. At any rate, as held in Shah Mohan Dass case, a guardian can agree to contribute capital. Sub-clause (3) of clause 4 of the partnership deed, which enables the partners to individually carry on the other business, cannot affect the validity of the deed. Mr. Karkhanis relies specially on sub-clause (4) which states that the partnership shall be terminated at the will of any of the partners. But this clause is a general clause usually found in partnership deeds and it cannot be said that this clause enables the minor partner to terminate the partnership itself, and in the context it only means, as far as the minor is concerned, that the guardian would be entitled to exercise his right of severance given to him by section 30 of the Partnership Act. Sub-clause (5) which enables partners to borrow money obviously has to be read along with sub-clause (16) by which only the three major partners have been designated as working partners. It seems to us that the minor has not been made a full partner but has only been given the benefits of partnership9. But the final objection of Mr. Karkhanis requires serious consideration. He says that the guardian has by clause 3 and sub-clause 4(1) purported, to agree to the starting of business and the constitution of a firm. This, according to him, he was not entitled to do and clauses 3 and 4(1) are void. The learned counsel for the respondent tried to sustain these clauses on the ground that the guardian must be deemed to have acted on his own behalf. But we are unable to sustain these clauses on this ground. Then the question arises : Can a guardian agree to the starting of a business and the constitution of a firm on the condition that the minor shall not be a full partner but only entitled to the benefits of partnership? In our opinion, there is no bar in law to the guardian entering into such a contract, for he is only securing the conferment of benefits of partnership on a minorTherefore, in our opinion, no fatal defect has been pointed out by the learned counsel for the appellant. Accordingly we hold that the assessee-firm is entitled to be registered, and agreeing with the High Court, we answer the question in the affirmative
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0
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7. We have just delivered judgment in Commissioner ofv. Shah Mohandas Sadhuram. In that case we have held that a partnership deed must be construed reasonably and that a guardian is entitled to do all things necessary for effectuating the conferment of the benefits of partnershipThere is no doubt that on a true interpretation of(9), the minor is not to bear any losses ; the losses are to be borne by Nathmal Jethaji.(16) does not make the minor a working partner. The only persons who were entitled to be the working partners are Nathmal Jethaji, Phulchand Nathmal and Sakalchand Thikmaji. It is in the light of these clauses that the other clauses should beThere is no provision that the minor will not be entitled to share in profits unless the capital is contributed, for under(9) partners are entitled to share in profits irrespective of the contribution of capital. At any rate, as held in Shah Mohan Dass case, a guardian can agree to contribute capital.(3) of clause 4 of the partnership deed, which enables the partners to individually carry on the other business, cannot affect the validity of the deed. Mr. Karkhanis relies specially on(4) which states that the partnership shall be terminated at the will of any of the partners. But this clause is a general clause usually found in partnership deeds and it cannot be said that this clause enables the minor partner to terminate the partnership itself, and in the context it only means, as far as the minor is concerned, that the guardian would be entitled to exercise his right of severance given to him by section 30 of the Partnership Act.(5) which enables partners to borrow money obviously has to be read along with(16) by which only the three major partners have been designated as working partners. It seems to us that the minor has not been made a full partner but has only been given the benefits of partnershipBut we are unable to sustain these clauses on this ground. Then the question arises : Can a guardian agree to the starting of a business and the constitution of a firm on the condition that the minor shall not be a full partner but only entitled to the benefits of partnership? In our opinion, there is no bar in law to the guardian entering into such a contract, for he is only securing the conferment of benefits of partnership on a minorTherefore, in our opinion, no fatal defect has been pointed out by the learned counsel for the appellant. Accordingly we hold that theis entitled to be registered, and agreeing with the High Court, we answer the question in the affirmative
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Bishan Singh & Others Vs. Khazan Singh & Another | v. Amar Singh, AIR 1927 All 664 (1). We accept the view expressed by the Lahore High Court and East Punjab High Court in preference to that of the Allahabad High Court.18. In view of the aforesaid four Full Bench decisions - three of the Lahore High Court and the fourth of the East Punjab High Court - a further consideration of the case is unnecessary. The settled law in the Punjab may be summarized thus:19. The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente life; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.20. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated: Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a compromise decree on January 23, 1951. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951.It would be seen from the aforesaid facts that the appellants right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they not only filed the suit but obtained a decree therein and complied with the terms of the decree within the time prescribed thereunder. The coercive process was still in operation. If so, it follows that the appellants are not hit by the doctrine of lis pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors.21. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption.The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decree-holder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land.22. The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Chowdhri, 44 Ind App 80: (AIR 1916 PC 179) (J), throws considerable light on the question whether in similar circumstances the pre-emptor can be deemed to have been substituted in the place of the original vendee. There the Subordinate Judge made a pre-emption decree under which the pre-emptors were in possession from 1900 to 1904, when the decree was reversed by the High Court and the original purchaser regained possession and in 1908, the Privy Council, upon further appeal, declared the pre-emptors right to purchase, but at a higher price than decreed by the Sub-ordinate Judge. In 1909 the pre-emptors paid the additional price and thereupon again obtained possession. The question arose whether the pre-emptors were not entitled to mesne profits for the period between 1904 to 1909, i.e., during the period the judgment of the first appellate Court was in force. The Privy Council held that during that period the pre-emptors were not entitled to mesne profits. The reason for that conclusion was stated at page 84 (of Ind App): (at p. 181 of AIR) thus:"It therefore follows that where a suit is brought it is on payment of the purchase-money on the specified date that the plaintiff obtains possession of the property, and until that time the original purchaser retains possession and is entitled to the rents and profits. This was so held in the case of Deokinandan v. Sri Ram, ILR 12 all 234 (K), and there Mahmud J., whose authority is well recognized by all, stated that it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre-emption become owners of the property, that such ownership did not vest from the date of sale, notwithstanding success in the suit, and that the actual substitution of the owner of the pre-empted property dates with possession under the decree".23. This judgment is, therefore, a clear authority for the position that the pre-emptor is not substituted in the place of the original vendee till conditions laid down in the decree are fulfilled. We cannot, therefore, agree with the learned Counsel that the compromise decree itself perfected his clients right in derogation to that of the plaintiffs.But as we have held that the appellants complied with the conditions laid down in the compromise decree, they were substituted in the place of the vendee before the present suit was disposed of. In the aforesaid view, the other questions raised by the appellants do not arise for consideration. | 1[ds]18. In view of the aforesaid four Full Bench decisions - three of the Lahore High Court and the fourth of the East Punjab High Court - a further consideration of the case is unnecessary. The settled law in the Punjab may be summarizedThe doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente life; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.20. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated: Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a compromise decree on January 23, 1951. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951.It would be seen from the aforesaid facts that the appellants right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they not only filed the suit but obtained a decree therein and complied with the terms of the decree within the time prescribed thereunder. The coercive process was still in operation. If so, it follows that the appellants are not hit by the doctrine of lis pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors.21. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption.The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decree-holder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land.22. The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Chowdhri, 44 Ind App 80: (AIR 1916 PC 179) (J), throws considerable light on the question whether in similar circumstances the pre-emptor can be deemed to have been substituted in the place of the original vendee. There the Subordinate Judge made a pre-emption decree under which the pre-emptors were in possession from 1900 to 1904, when the decree was reversed by the High Court and the original purchaser regained possession and in 1908, the Privy Council, upon further appeal, declared the pre-emptors right to purchase, but at a higher price than decreed by the Sub-ordinate Judge. In 1909 the pre-emptors paid the additional price and thereupon again obtained possession. The question arose whether the pre-emptors were not entitled to mesne profits for the period between 1904 to 1909, i.e., during the period the judgment of the first appellate Court was in force. The Privy Council held that during that period the pre-emptors were not entitled to mesne profits.This judgment is, therefore, a clear authority for the position that the pre-emptor is not substituted in the place of the original vendee till conditions laid down in the decree are fulfilled. We cannot, therefore, agree with the learned Counsel that the compromise decree itself perfected his clients right in derogation to that of the plaintiffs.But as we have held that the appellants complied with the conditions laid down in the compromise decree, they were substituted in the place of the vendee before the present suit was disposed of. In the aforesaid view, the other questions raised by the appellants do not arise for consideration. | 1 | 5,831 | 891 | ### 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:
v. Amar Singh, AIR 1927 All 664 (1). We accept the view expressed by the Lahore High Court and East Punjab High Court in preference to that of the Allahabad High Court.18. In view of the aforesaid four Full Bench decisions - three of the Lahore High Court and the fourth of the East Punjab High Court - a further consideration of the case is unnecessary. The settled law in the Punjab may be summarized thus:19. The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente life; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.20. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated: Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a compromise decree on January 23, 1951. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951.It would be seen from the aforesaid facts that the appellants right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they not only filed the suit but obtained a decree therein and complied with the terms of the decree within the time prescribed thereunder. The coercive process was still in operation. If so, it follows that the appellants are not hit by the doctrine of lis pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors.21. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption.The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decree-holder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land.22. The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Chowdhri, 44 Ind App 80: (AIR 1916 PC 179) (J), throws considerable light on the question whether in similar circumstances the pre-emptor can be deemed to have been substituted in the place of the original vendee. There the Subordinate Judge made a pre-emption decree under which the pre-emptors were in possession from 1900 to 1904, when the decree was reversed by the High Court and the original purchaser regained possession and in 1908, the Privy Council, upon further appeal, declared the pre-emptors right to purchase, but at a higher price than decreed by the Sub-ordinate Judge. In 1909 the pre-emptors paid the additional price and thereupon again obtained possession. The question arose whether the pre-emptors were not entitled to mesne profits for the period between 1904 to 1909, i.e., during the period the judgment of the first appellate Court was in force. The Privy Council held that during that period the pre-emptors were not entitled to mesne profits. The reason for that conclusion was stated at page 84 (of Ind App): (at p. 181 of AIR) thus:"It therefore follows that where a suit is brought it is on payment of the purchase-money on the specified date that the plaintiff obtains possession of the property, and until that time the original purchaser retains possession and is entitled to the rents and profits. This was so held in the case of Deokinandan v. Sri Ram, ILR 12 all 234 (K), and there Mahmud J., whose authority is well recognized by all, stated that it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre-emption become owners of the property, that such ownership did not vest from the date of sale, notwithstanding success in the suit, and that the actual substitution of the owner of the pre-empted property dates with possession under the decree".23. This judgment is, therefore, a clear authority for the position that the pre-emptor is not substituted in the place of the original vendee till conditions laid down in the decree are fulfilled. We cannot, therefore, agree with the learned Counsel that the compromise decree itself perfected his clients right in derogation to that of the plaintiffs.But as we have held that the appellants complied with the conditions laid down in the compromise decree, they were substituted in the place of the vendee before the present suit was disposed of. In the aforesaid view, the other questions raised by the appellants do not arise for consideration.
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### Explanation:
18. In view of the aforesaid four Full Bench decisions - three of the Lahore High Court and the fourth of the East Punjab High Court - a further consideration of the case is unnecessary. The settled law in the Punjab may be summarizedThe doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente life; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.20. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated: Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a compromise decree on January 23, 1951. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951.It would be seen from the aforesaid facts that the appellants right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they not only filed the suit but obtained a decree therein and complied with the terms of the decree within the time prescribed thereunder. The coercive process was still in operation. If so, it follows that the appellants are not hit by the doctrine of lis pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors.21. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption.The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decree-holder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land.22. The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Chowdhri, 44 Ind App 80: (AIR 1916 PC 179) (J), throws considerable light on the question whether in similar circumstances the pre-emptor can be deemed to have been substituted in the place of the original vendee. There the Subordinate Judge made a pre-emption decree under which the pre-emptors were in possession from 1900 to 1904, when the decree was reversed by the High Court and the original purchaser regained possession and in 1908, the Privy Council, upon further appeal, declared the pre-emptors right to purchase, but at a higher price than decreed by the Sub-ordinate Judge. In 1909 the pre-emptors paid the additional price and thereupon again obtained possession. The question arose whether the pre-emptors were not entitled to mesne profits for the period between 1904 to 1909, i.e., during the period the judgment of the first appellate Court was in force. The Privy Council held that during that period the pre-emptors were not entitled to mesne profits.This judgment is, therefore, a clear authority for the position that the pre-emptor is not substituted in the place of the original vendee till conditions laid down in the decree are fulfilled. We cannot, therefore, agree with the learned Counsel that the compromise decree itself perfected his clients right in derogation to that of the plaintiffs.But as we have held that the appellants complied with the conditions laid down in the compromise decree, they were substituted in the place of the vendee before the present suit was disposed of. In the aforesaid view, the other questions raised by the appellants do not arise for consideration.
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Commissioner of Income-Tax-4, Mumbai Vs. Karma Energy Limited (In Favour of Assessee) | to enable the group company to benefit. According to Mr. Mistri, the contention of the revenue is that subsequent transactions have been put into place all of which enure to benefit of the Weizmann group is incorrect. It is the revenues contention that the commission involved in the deal has been indirectly handed back to the Weizmann group. According to Mr. Mistri, these contentions are misconceived. He supported the order of the Commissioner of Income Tax (Appeals) as well as the ITAT and contended that no question of law would arise in these appeals.9. On the additional question in ITXA Nos.1511/13 and 1713/013, Mr. Mistri submitted that no substantial question arises in the facts of the case and that disallowance made by the Assessing Officer was under section 40A(2)(b) of the I.T. Act is to be rightly deleted.10. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot be faulted. The order of the Appellate Tribunal in the set of appeals filed by the Revenue against M/s. Karma Energy Ltd., the Respondent herein as well M/s. Weizmann Ltd. has also taken into account all contentions including that during the course of investigation, NEG Micon was unable to provide any corroborative evidence before the Assessing Officer. Apparently, NEG Micon denied that they have paid these commissions.11. The Tribunal considered the previous findings of certain group companies of Weizmann being involved and on inquiry, it was found that the commission/fees paid by NEG Micon was not received by the assessee. M/s. Samrat Spinner and M/s. Kakatiya Industries had paid Rs.115 lacs and Rs.303 lacs to M/s. Suhami Traders (presently known as Suhami Power & Finance Corporation), whose address is the same as that of the present assessee. According to the Assessing Officer, the commission paid by NEG Micon to Suhami was thus received by a Weizmann group company. Therefore, the excess money paid for the windmills was routed back to Weizmann Group, while the assessee, also a Weizmann group company claimed 100% depreciation. The collusion between NEG Micon and Weizmann group it is alleged was in order to deprive the Revenue.12. A comparative chart has been prepared of the transactions entered into by the Respondent as well as Precot Mills Ltd. claiming difference in prices of windmills pegged at about Rs.98 lacs. However, comparison with companies like Rajasthan State Power Corporation Ltd. reveals that the price is easily justifiable given the difference in specifications. It is necessary to mention that in the course of the comparison provided between the price paid by Weizmann and Savita Chemicals Ltd. and the assessee, it revealed that Savita Chemicals purchased similar windmills at price of Rs. 405.00 lacs as against Rs. 360.64 lacs in the case of the assessee. The performance, specifications and type of requirements were very similar in these cases.13. Accordingly, the Tribunal considered the statement of comparable cases made by the assessee and concluded that the payment made by the assessee was certainly not inflated. The Tribunal considered the fact that setting up of windmills was a specialized task and came to the conclusion that the Assessing Officer had no evidence on record to establish that the price of windmills paid by the assessee was not the actual price or that the price was inflated. The Tribunal found that the Assessing Officer had proceeded on the basis of a presumption that the cost of each windmill is inflated by Rs.1 crore and it had not been proved by documentary evidence that such money came back to the assessee from the concern to whom commission was paid, namely M/s. Suhani Traders.14. Mr. Mistri highlighted the fact that although the receipt of commission by Weizmann group company is alleged, there is no merit whatsoever in the contention that could justify disallowance of the depreciation claim. The Tribunal found that there is no excessive payment. The Assessing Officer has not disputed the fact that the assessee paid lease rent of Rs.5,51,788/- to Weizmann group Ltd. on account of the windmills taken on lease and the contention of the Assessing Officer that lease rents were unreasonable was not based on any cogent material but only based on assumption and presumption. In fact, the lease rents were fixed in accordance with the formula provided by Indian Renewable Energy Development, a Government of India Company which provided support to Electricity Project.15. The Tribunal found that the Commissioner of Income Tax (Appeals) was justified in holding that there is nothing on record to prove the excessive amount of lease rent was paid. The said issue is identical in all appeals and the appeals came to be rejected while upholding the orders of the Commissioner of Income Tax (Appeals). The appeals filed for the year 2002-03 and 2005-06 were also dismissed. The cross objections filed by the assessee for the year 2002-03 were also rejected.16. In the circumstances, having considered the finding of the two fact finding authorities, namely the Commissioner of Income Tax (Appeals) and the Tribunal, both of whom have come to an identical findings, we find no reason to interfere in the above appeal Nos.413, 458 and 449 of 2013. None of the three questions of law proposed arise from the present set of facts in these appeals.17. In Income Tax Appeal Nos.1511/13 and 1713/13, the fourth question also does not arise. In fact, this issue was never raised before the Commissioner of Income Tax (Appeals) or before the Tribunal. The Commissioner of Income Tax (Appeals) observed that the payment made to Weizmann group of is not in the nature of income but was expenditure reimbursed which cannot be regarded as a revenue receipt and therefore, the Tribunal considering the provisions of Section 194 of the Act has upheld the order of the Commissioner of Income Tax (Appeals) rejecting the contention of the department. In view of the same, the fourth question in Income Tax Appeal Nos.1511/13 and 1713/13 also does not raise as a substantial question of law. | 0[ds]10. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot be. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot befaulted. The order of the Appellate Tribunal in the set of appeals filed by the Revenue against M/s. Karma Energy Ltd., the Respondent herein as well M/s. Weizmann Ltd. has also taken into account all contentions including that during the course of investigation, NEG Micon was unable to provide any corroborative evidence before the Assessing Officer. Apparently, NEG Micon denied that they have paid these commissions.The Tribunal found that the Commissioner of Income Tax (Appeals) was justified in holding that there is nothing on record to prove the excessive amount of lease rent was paid. The said issue is identical in all appeals and the appeals came to be rejected while upholding the orders of the Commissioner of Income Tax (Appeals). The appeals filed for the year06 were also dismissed. The cross objections filed by the assessee for the yearwere also rejected.16. In the circumstances, having considered the finding of the two fact finding authorities, namely the Commissioner of Income Tax (Appeals) and the Tribunal, both of whom have come to an identical findings, we find no reason to interfere in the above appeal Nos.413, 458 and 449 of 2013. None of the three questions of law proposed arise from the present set of facts in these appeals.17. In Income Tax Appeal Nos.1511/13 and 1713/13, the fourth question also does not arise. In fact, this issue was never raised before the Commissioner of Income Tax (Appeals) or before the Tribunal. The Commissioner of Income Tax (Appeals) observed that the payment made to Weizmann group of is not in the nature of income but was expenditure reimbursed which cannot be regarded as a revenue receipt and therefore, the Tribunal considering the provisions of Section 194 of the Act has upheld the order of the Commissioner of Income Tax (Appeals) rejecting the contention of the department. In view of the same, the fourth question in Income Tax Appeal Nos.1511/13 and 1713/13 also does not raise as a substantial question of law. | 0 | 2,044 | 418 | ### Instruction:
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to enable the group company to benefit. According to Mr. Mistri, the contention of the revenue is that subsequent transactions have been put into place all of which enure to benefit of the Weizmann group is incorrect. It is the revenues contention that the commission involved in the deal has been indirectly handed back to the Weizmann group. According to Mr. Mistri, these contentions are misconceived. He supported the order of the Commissioner of Income Tax (Appeals) as well as the ITAT and contended that no question of law would arise in these appeals.9. On the additional question in ITXA Nos.1511/13 and 1713/013, Mr. Mistri submitted that no substantial question arises in the facts of the case and that disallowance made by the Assessing Officer was under section 40A(2)(b) of the I.T. Act is to be rightly deleted.10. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot be faulted. The order of the Appellate Tribunal in the set of appeals filed by the Revenue against M/s. Karma Energy Ltd., the Respondent herein as well M/s. Weizmann Ltd. has also taken into account all contentions including that during the course of investigation, NEG Micon was unable to provide any corroborative evidence before the Assessing Officer. Apparently, NEG Micon denied that they have paid these commissions.11. The Tribunal considered the previous findings of certain group companies of Weizmann being involved and on inquiry, it was found that the commission/fees paid by NEG Micon was not received by the assessee. M/s. Samrat Spinner and M/s. Kakatiya Industries had paid Rs.115 lacs and Rs.303 lacs to M/s. Suhami Traders (presently known as Suhami Power & Finance Corporation), whose address is the same as that of the present assessee. According to the Assessing Officer, the commission paid by NEG Micon to Suhami was thus received by a Weizmann group company. Therefore, the excess money paid for the windmills was routed back to Weizmann Group, while the assessee, also a Weizmann group company claimed 100% depreciation. The collusion between NEG Micon and Weizmann group it is alleged was in order to deprive the Revenue.12. A comparative chart has been prepared of the transactions entered into by the Respondent as well as Precot Mills Ltd. claiming difference in prices of windmills pegged at about Rs.98 lacs. However, comparison with companies like Rajasthan State Power Corporation Ltd. reveals that the price is easily justifiable given the difference in specifications. It is necessary to mention that in the course of the comparison provided between the price paid by Weizmann and Savita Chemicals Ltd. and the assessee, it revealed that Savita Chemicals purchased similar windmills at price of Rs. 405.00 lacs as against Rs. 360.64 lacs in the case of the assessee. The performance, specifications and type of requirements were very similar in these cases.13. Accordingly, the Tribunal considered the statement of comparable cases made by the assessee and concluded that the payment made by the assessee was certainly not inflated. The Tribunal considered the fact that setting up of windmills was a specialized task and came to the conclusion that the Assessing Officer had no evidence on record to establish that the price of windmills paid by the assessee was not the actual price or that the price was inflated. The Tribunal found that the Assessing Officer had proceeded on the basis of a presumption that the cost of each windmill is inflated by Rs.1 crore and it had not been proved by documentary evidence that such money came back to the assessee from the concern to whom commission was paid, namely M/s. Suhani Traders.14. Mr. Mistri highlighted the fact that although the receipt of commission by Weizmann group company is alleged, there is no merit whatsoever in the contention that could justify disallowance of the depreciation claim. The Tribunal found that there is no excessive payment. The Assessing Officer has not disputed the fact that the assessee paid lease rent of Rs.5,51,788/- to Weizmann group Ltd. on account of the windmills taken on lease and the contention of the Assessing Officer that lease rents were unreasonable was not based on any cogent material but only based on assumption and presumption. In fact, the lease rents were fixed in accordance with the formula provided by Indian Renewable Energy Development, a Government of India Company which provided support to Electricity Project.15. The Tribunal found that the Commissioner of Income Tax (Appeals) was justified in holding that there is nothing on record to prove the excessive amount of lease rent was paid. The said issue is identical in all appeals and the appeals came to be rejected while upholding the orders of the Commissioner of Income Tax (Appeals). The appeals filed for the year 2002-03 and 2005-06 were also dismissed. The cross objections filed by the assessee for the year 2002-03 were also rejected.16. In the circumstances, having considered the finding of the two fact finding authorities, namely the Commissioner of Income Tax (Appeals) and the Tribunal, both of whom have come to an identical findings, we find no reason to interfere in the above appeal Nos.413, 458 and 449 of 2013. None of the three questions of law proposed arise from the present set of facts in these appeals.17. In Income Tax Appeal Nos.1511/13 and 1713/13, the fourth question also does not arise. In fact, this issue was never raised before the Commissioner of Income Tax (Appeals) or before the Tribunal. The Commissioner of Income Tax (Appeals) observed that the payment made to Weizmann group of is not in the nature of income but was expenditure reimbursed which cannot be regarded as a revenue receipt and therefore, the Tribunal considering the provisions of Section 194 of the Act has upheld the order of the Commissioner of Income Tax (Appeals) rejecting the contention of the department. In view of the same, the fourth question in Income Tax Appeal Nos.1511/13 and 1713/13 also does not raise as a substantial question of law.
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10. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot be. Having heard both counsel and having perused the record, we find that the order of the Appellate Tribunal cannot befaulted. The order of the Appellate Tribunal in the set of appeals filed by the Revenue against M/s. Karma Energy Ltd., the Respondent herein as well M/s. Weizmann Ltd. has also taken into account all contentions including that during the course of investigation, NEG Micon was unable to provide any corroborative evidence before the Assessing Officer. Apparently, NEG Micon denied that they have paid these commissions.The Tribunal found that the Commissioner of Income Tax (Appeals) was justified in holding that there is nothing on record to prove the excessive amount of lease rent was paid. The said issue is identical in all appeals and the appeals came to be rejected while upholding the orders of the Commissioner of Income Tax (Appeals). The appeals filed for the year06 were also dismissed. The cross objections filed by the assessee for the yearwere also rejected.16. In the circumstances, having considered the finding of the two fact finding authorities, namely the Commissioner of Income Tax (Appeals) and the Tribunal, both of whom have come to an identical findings, we find no reason to interfere in the above appeal Nos.413, 458 and 449 of 2013. None of the three questions of law proposed arise from the present set of facts in these appeals.17. In Income Tax Appeal Nos.1511/13 and 1713/13, the fourth question also does not arise. In fact, this issue was never raised before the Commissioner of Income Tax (Appeals) or before the Tribunal. The Commissioner of Income Tax (Appeals) observed that the payment made to Weizmann group of is not in the nature of income but was expenditure reimbursed which cannot be regarded as a revenue receipt and therefore, the Tribunal considering the provisions of Section 194 of the Act has upheld the order of the Commissioner of Income Tax (Appeals) rejecting the contention of the department. In view of the same, the fourth question in Income Tax Appeal Nos.1511/13 and 1713/13 also does not raise as a substantial question of law.
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Ishwari Khetan Sugar Mills Private Limited and Another Etc Vs. State of Uttar Pradesh and Others Etc | they can be styled as sick undertakings and become a drag on the economy of the area. There was no s cope for ploughing back the profits to rejuvenate the machinery because there was no profit. The situation had not improved even when managements of some of the undertakings were taken over under the IDR Act and, therefore, this desperate situation called for a drastic remedy in public interest and while applying that drastic remedy of acquisition principles which are valid for determining the value of machinery were adopted. The adequacy or otherwise of compensation on the calculus made by applying the principle is beyond the judicial review. It would be a day time hallucination to call such principle irrelevant or compensation illusory. The challenge to the validity of the impugned legislation on the ground of violation of Art. 31 (2) must accordingly fail.There remain two minor and incidental points mentioned in passing. The submissions themselves lacked emphasis. They are, that: (1) no compensation is provided for the agricultural land taken over by the State; (2) good-will of the scheduled undertakings was not evaluated as a component of compensation. 39. With reference to Ishwari Khetan Sugar Mills (P) Ltd., it was said that 36 acres of agricultural land belonging to the company owning the scheduled undertaking was taken over without compensation. It was countered by saying that agricultural land is not taken over. It is not clear from the pleadings and record whether agricultural land outside the structures of scheduled undertakings has been acquired and has at all been taken over by the Corporation. It may be that between various structures of scheduled undertakings there might be some open land but that is part and parcel of scheduled undertakings because any other construction would show that a passage or road between two constructions could not be acquired. Unless, therefore, it is specifically shown that while acquiring scheduled undertakings agricultural land belonging to the company or the owner owning scheduled undertaking was either acquired or taken over as part of the acquisition it is not possible to accept the submission that there was acquisition of agricultural land without providing compensation for the same. 40. And as for the good-will, less said the better. The scheduled undertakings were sick units and the sickness was chronic. A manufacturing unit with heavy carried forward loss and defaulting in payments, possibly facing appointment of Receivers for realising tax arrears, asks compensation for the good-will generated by it. This good-will appears to be more imaginary than real or an argument to support an untenable submission. But the better answer is that there cannot be a good-will of a manufacturing undertaking but it can be of a company, a partnership, or a proprietor owning scheduled undertaking and neither the company nor the partnership nor the proprietory unit, if any, has been acquired under the impugned legislation. Therefore, in evaluating compensation of the scheduled undertakings there is no question of evaluating the good-will.Mr. R. A. Gupta appearing in SLP. 6252/79 raised an additional contention that the impugned Act is violative of Art. 14 in that selection of petitioners scheduled undertakings for acquisition is wholly arbitrary and there is no difference between those selected for acquisition and those left out through all such sugar, undertakings in the State of Uttar Pradesh were similarly situated and similarly circumstanced. Sustenance was largely sought to be drawn from the Report of Justice Bhargava styled as Sugar Industry Inquiry Commission, 1974, which inter alia, specified 17 sugar undertakings in Uttar Pradesh as prima facie sick sugar mills. After reading out a portion of the Report it was said that classifying the 12 sugar undertakings for acquisition is not based on any intelligible differentia between those included in the group for acquisition and those left out and that this differential treatment has no rational relationship to the object sought to be achieved by the impugned legislation. On behalf of respondents learned Advocate-General for the State of Uttar Pradesh countered this contention by pointing out that before acquiring the scheduled undertakings the Government had a close review of the condition of the sugar undertakings done for certain specific period set out in the affidavit and ascertained whether the situation had become desperate on account of the persistent default in payment of cane price, purchase tax, labour dues, etc. The situation in Uttar Pradesh appears to be peculiar in that cane growers go on selling their cane to sugar undertakings probably having little or no option in this behalf because it is a perishable commodity and must be disposed of as early as possible and they have to await payment at the sweet will, whim and caprice of the sugar barons. Its unhealthy effect on marginal farmers would be intolerable because the cash crop would not fetch any cash and destitution may be the inevitable outcome. And this phenomenon was repeated year after year. It was pointed out that a close scrutiny was applied to this persistent default and where the situation in respect of sugar undertakings was desparate they were classified together and they were sought to be acquired. Can it be said that this classification is not based on any intelligible differentia. Economic situation of an industrial undertaking may be very good, good, average, bad, intolerable and uneconomic in larger national perspective.It would have been difficult for the Government to group all sugar undertakings with such as were living on coramine doses. There does appear to be the intelligible differentia by which this classification of those in an intolerable condition has been grouped together. Acquisition was for an avowed object of rejuvenating these undertakings and thereby improving the economy of the area by providing priority in payment to cane growers, labour, in respect of whom there is no cushion for sufferance. Thus, this differentia undoubtedly has a rational relationship to the object sought to be achieved by the Act. The challenge of Art. 14 was an argument of despair and must be repelled. 41. | 0[ds]The scope and content of entry 52, List I and entry 24, List II has to be demarcated with precision to avoid a possible confusion likely to emanate from an interdependence and interaction of the two entries. Industry as a head of legislation is to be found in entry 24, List II with this limitation that it is subject to the provisions of entries 7 and 52, List I. The difference in the language in which entries 7 and 52 are couched has a bearing on the interruption of entry 52. I n the former case if a declaration is made by the Parliament that the particular industry is necessary for the purpose of defence or for prosecution of the war, parliament would be exclusively entitled to legislate in respect of that industry to the exclusion of State legislatures because the requisite declaration will have the effect of taking out that industry from entry 24, List II. A declaration by the parliament by law to assume control over any particular industry in public interest is a sine qua non to clothe Parliament with power under entry 52, List I to legislate in respect of that industry because otherwise industry as a general head of legislation is in the exclusive sphere of State legislative activity pursuant to entry 24, List II. Distribution of legislative powers as enacted in Part XI and Art. 246 clearly demarcate the field of legislative activity reserved for Parliament and for State legislatures and also the concurrent list in respect of which both can legislate subject to other provisions of part XI.. (3) of Art. 246 provides that the State legislature has exclusive power to make laws with respect to any of the matters enumerated in List. II in the Seventh Schedule. A fortiori, industry being the matter enumerated in List II the State legislature has exclusive power to legislate in respect of it and keeping aside for the time being the words subject to the provisions of entries 7 and 5 2 of List I, the State legislature alone can legislate in respect of the legislative head industry. Ipso facto, parliament would not have power to legislate in respect of industry as a legislative head. Now, entry 52, List I on its own language does not provide a field of legislative activity for the Union Parliament unless and until a declaration is made by parliament by law to assume control over specified industries. The embargo on the power of Parliament to legislate in respect of industry which is in List II would be lifted once a declaration is made by Parliament by law as envisaged by entry 52, List I. In the absence of a declaration as envisaged by entry 52, List I, it is incontrovertible that Parliament has no power to legislate on the topic of industry. Entry 52, List I on its own language does not contemplate a bald declaration for assuming control over specified industries, but the declaration has to be by law to assume control of specified industries in public interest. The legislation enacted pursuant to the power to legislate acquired by declaration must be for assuming control over the industry and the declaration has to be made by law enacted, of which declaration would be an integral part. Legislation for assuming control containing the declaration will spell out the limit of control so assumed by the declaration. Therefore, the degree and extent of control that would be acquired by Parliament pursuant to the declaration would necessarily depend upon the legislation enacted spelling out the degree of control assumed. A mere declaration unaccompanied by law is incompatible with entry 52, List I. A declaration for assuming control of specific industries coupled with law assuming control is ae for taking legislative action under entry 52, List I. The declaration and the legislation pursuant to declaration to that extent denude the power of State legislature to legislate under entry 24, List II. Therefore, the erosion of the power of the State legislature to legislate in respect of declared industry would not occur merely by declaration but by the enactment consequent on the declaration prescribing the extent and scope of control. When a declaration is made as contemplated by entry 52 List T in respect of any particular industry, it is contended that, that industry as a topic of legislation would be removed from the legislative sphere of the stateIf in pith and substance a legislation falls within one entry or the other but some portion of ther of the legislation incidentally trenches upon and might enter a field under another List, the Act as a whole would be valid not with standing such incidental trenching. This is well established by a catena of decisions [see Union of India v. H. S. Dhillon, (1) and Kerala State Electricity Board v. Indian Aluminium Co.(2)]. After referring to these decisions in State of Karnataka &Anr. etc. v. Ranganatha Reddy &Anr. etc.(3) Untwalia, J. speaking for the Constitution Bench has in terms stated that the pith and substance of the Act has to be looked into and an incidental trespass would not invalidate the law. The challenge in that case was to the Nationalisation of contract carriages by the Karnataka State, inter alia, on the ground that the statute was invalid as it was a legislation on the subject of interstate trade and commerce. Repelling this contention the Court unanimously held that in pith and substance the impugned legislation was for acquisition of contract carriages and not an Act which deals withe trade and commerce.To start with, it is necessary first to ascertain in pith and substance to what entry in a particular list the impugned legislation is referable. If it is referable to entry other than 24, List II, such as entry 42, List III, it would be necessary to precisely ascertain whether it in any way trenches upon the field occupied by the declaration made by Parliament to assume control over sugar industry as manifested by the various provisions of the IDR ActPower to acquire coal bearing land owned or possessed by the State of West Bengal was amongst others claimed as an integral element of control acquired by the Union pursuant to a declaration ma de in s. 2 of the IDR Act and Mines and Minerals Act enacted in exercise of the legislative power under entries 52 and 54 respectively as coal was both a declared industry and a specified mineral. This contention was partly accepted to repel the contention that the Union has no power to acquire the property vested in the State since the State itself is also a sovereign authorityThe contention that the property of State cannot be acquired by the Union under entry 42 of List III was repelled. In reaching this conclusion, another contention was rejected which was also advanced before us. viz., that if power of acquisition is treated as an independent power both of the Union and the State and could be exercised by the Unio n and the State with respect to the same property it would lead to such a confusion that there would be no end to it. A picture of fearful constitutional impasse was drawn urging that the State may acquire property of an Industrial undertaking of a declared industry in exercise of the power under entry 42, List III, and the Union may exercise the same power after control is acquired pursuant to declaration made as envisaged in entry 52 in respect of an industry and thisd needs to be averted by harmonious construction and reconciliation of power between the Union and the States. Such a situation is beyond the realm of practical possibility. His wild apprehension stands so effectively answered by West Bengal case (supra) that we cannot improve upon it. Pertinent observation may be extracted:ower to acquire or requisition property may since the amendment, be exercised concurrently by the Union and the States. But on that account conflicting exercise of the power cannot be envisagedBut in the next breath it has been observed that the amount fixed for being paid to the owner is wholly beyond the pale of challenge that it is inadequate. The concept of adequacy is directlyd to the market value of the property and therefore, such value cannot constitute an element of that challenge. But this was the situation after amendment of Art. 31(2) by the ConstitutionAct. Even as the article stood at the relevant time it was open to the legislature to fix principle for determining compensation and unless it is shown that t he principles are irrelevant to the determination of the value of the property or by working out the compensation according to the principles so specified the compensation becomes illusory, the principles themselves are beyond the pale of challenge before a court of law on the ground that they do not provide adequate compensation. Now, here the compensation is worked out and specified in the schedule to the impugned Act. The compensation is determined in round figure. This Court h as in terms accepted that payment of compensation on the basis of written down value calculated according to thex law for used machinery is not irrelevant as a principle for determining compensation. That principle appears to have been adopted for valuing used machinery though the legislation fixes compensation payable to each undertaking in round sum. And that was the only part challenged.It was, however, said that no principle is discernible because not only none was state d on the floor of the House but to a specific question the reply was that principle is not to be disclosed. Debate in legislature cannot conclude the point. Here the principle is discernible and that appears to be valid. It represents the collective will of the House. To reject it would tantamount to saying that the majority members voted without understanding and appreciating the principles. However, the principle is extracted in court room debate and it is a valid principleA peep into the background leading to the acquisition of the scheduled undertakings would reveal that these scheduled undertakings had a heavyd of carried forward loss, that even though they were taking sugar cane from cane growers, i.e. the farmers, they failed to pay them the price of sugar cane. There was labour unrest as labour was not paid. Generally speaking, they can be styled as sick undertakings and become a drag on the economy of the area. There was no s cope for ploughing back the profits to rejuvenate the machinery because there was no profit. The situation had not improved even when managements of some of the undertakings were taken over under the IDR Act and, therefore, this desperate situation called for a drastic remedy in public interest and while applying that drastic remedy of acquisition principles which are valid for determining the value of machinery were adopted. The adequacy or otherwise of compensation on the calculus made by applying the principle is beyond the judicial review. It would be a day time hallucination to call such principle irrelevant or compensation illusory. The challenge to the validity of the impugned legislation on the ground of violation of Art. 31 (2) must accordingly fail.There remain two minor and incidental points mentioned in passing. The submissions themselves lacked emphasis. They are, that:(1) no compensation is provided for the agricultural land taken over by the State;l of the scheduled undertakings was not evaluated as a component of compensationI n each of those cases, the declaration made by Parliament in the concerned enactment limited the control of the regulation of the mines and the development of minerals to the extent provided in the enactment. Whether the terms in which t he declaration has been framed in s. 2 of the Industries (Development and Regulation)a declaration not expressly limiting control of the specific industries to the extent provided by then be construed as being so limited is a matte r which, we think, we should deal with in some more appropriate case. The range of considerations encompassed within the field of enquiry to which the point is amenable has not, to our mind, been sufficiently covered before us. And f or good reason. The provocation was limited. For the controversy in the present cases concerning the legislative competence of the State Legislature to enact the U.P. Sugar Undertakings (Acquisition) Act, 1971 can be adequately disposed of on the ground that the legislation falls within Entry 42 of List III and cannot be related to Entry 52 of List I or Entry 24 of List II. When the impugned enactment truly falls within Entry 42 of Liste is a reluctance to enter upon an examination of the mutually competing claims of Entry 52 of List I and Entry 24 of Lists which deal with industries, an entirely different subjecth this reservation, we have no hesitation in agreeing with the ultimate conclusions reached by our learned brother on the remaining points of controversy and in concurring with the order proposed by him disposing of these appeals and special leave petitions. | 0 | 13,320 | 2,358 | ### Instruction:
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they can be styled as sick undertakings and become a drag on the economy of the area. There was no s cope for ploughing back the profits to rejuvenate the machinery because there was no profit. The situation had not improved even when managements of some of the undertakings were taken over under the IDR Act and, therefore, this desperate situation called for a drastic remedy in public interest and while applying that drastic remedy of acquisition principles which are valid for determining the value of machinery were adopted. The adequacy or otherwise of compensation on the calculus made by applying the principle is beyond the judicial review. It would be a day time hallucination to call such principle irrelevant or compensation illusory. The challenge to the validity of the impugned legislation on the ground of violation of Art. 31 (2) must accordingly fail.There remain two minor and incidental points mentioned in passing. The submissions themselves lacked emphasis. They are, that: (1) no compensation is provided for the agricultural land taken over by the State; (2) good-will of the scheduled undertakings was not evaluated as a component of compensation. 39. With reference to Ishwari Khetan Sugar Mills (P) Ltd., it was said that 36 acres of agricultural land belonging to the company owning the scheduled undertaking was taken over without compensation. It was countered by saying that agricultural land is not taken over. It is not clear from the pleadings and record whether agricultural land outside the structures of scheduled undertakings has been acquired and has at all been taken over by the Corporation. It may be that between various structures of scheduled undertakings there might be some open land but that is part and parcel of scheduled undertakings because any other construction would show that a passage or road between two constructions could not be acquired. Unless, therefore, it is specifically shown that while acquiring scheduled undertakings agricultural land belonging to the company or the owner owning scheduled undertaking was either acquired or taken over as part of the acquisition it is not possible to accept the submission that there was acquisition of agricultural land without providing compensation for the same. 40. And as for the good-will, less said the better. The scheduled undertakings were sick units and the sickness was chronic. A manufacturing unit with heavy carried forward loss and defaulting in payments, possibly facing appointment of Receivers for realising tax arrears, asks compensation for the good-will generated by it. This good-will appears to be more imaginary than real or an argument to support an untenable submission. But the better answer is that there cannot be a good-will of a manufacturing undertaking but it can be of a company, a partnership, or a proprietor owning scheduled undertaking and neither the company nor the partnership nor the proprietory unit, if any, has been acquired under the impugned legislation. Therefore, in evaluating compensation of the scheduled undertakings there is no question of evaluating the good-will.Mr. R. A. Gupta appearing in SLP. 6252/79 raised an additional contention that the impugned Act is violative of Art. 14 in that selection of petitioners scheduled undertakings for acquisition is wholly arbitrary and there is no difference between those selected for acquisition and those left out through all such sugar, undertakings in the State of Uttar Pradesh were similarly situated and similarly circumstanced. Sustenance was largely sought to be drawn from the Report of Justice Bhargava styled as Sugar Industry Inquiry Commission, 1974, which inter alia, specified 17 sugar undertakings in Uttar Pradesh as prima facie sick sugar mills. After reading out a portion of the Report it was said that classifying the 12 sugar undertakings for acquisition is not based on any intelligible differentia between those included in the group for acquisition and those left out and that this differential treatment has no rational relationship to the object sought to be achieved by the impugned legislation. On behalf of respondents learned Advocate-General for the State of Uttar Pradesh countered this contention by pointing out that before acquiring the scheduled undertakings the Government had a close review of the condition of the sugar undertakings done for certain specific period set out in the affidavit and ascertained whether the situation had become desperate on account of the persistent default in payment of cane price, purchase tax, labour dues, etc. The situation in Uttar Pradesh appears to be peculiar in that cane growers go on selling their cane to sugar undertakings probably having little or no option in this behalf because it is a perishable commodity and must be disposed of as early as possible and they have to await payment at the sweet will, whim and caprice of the sugar barons. Its unhealthy effect on marginal farmers would be intolerable because the cash crop would not fetch any cash and destitution may be the inevitable outcome. And this phenomenon was repeated year after year. It was pointed out that a close scrutiny was applied to this persistent default and where the situation in respect of sugar undertakings was desparate they were classified together and they were sought to be acquired. Can it be said that this classification is not based on any intelligible differentia. Economic situation of an industrial undertaking may be very good, good, average, bad, intolerable and uneconomic in larger national perspective.It would have been difficult for the Government to group all sugar undertakings with such as were living on coramine doses. There does appear to be the intelligible differentia by which this classification of those in an intolerable condition has been grouped together. Acquisition was for an avowed object of rejuvenating these undertakings and thereby improving the economy of the area by providing priority in payment to cane growers, labour, in respect of whom there is no cushion for sufferance. Thus, this differentia undoubtedly has a rational relationship to the object sought to be achieved by the Act. The challenge of Art. 14 was an argument of despair and must be repelled. 41.
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it would lead to such a confusion that there would be no end to it. A picture of fearful constitutional impasse was drawn urging that the State may acquire property of an Industrial undertaking of a declared industry in exercise of the power under entry 42, List III, and the Union may exercise the same power after control is acquired pursuant to declaration made as envisaged in entry 52 in respect of an industry and thisd needs to be averted by harmonious construction and reconciliation of power between the Union and the States. Such a situation is beyond the realm of practical possibility. His wild apprehension stands so effectively answered by West Bengal case (supra) that we cannot improve upon it. Pertinent observation may be extracted:ower to acquire or requisition property may since the amendment, be exercised concurrently by the Union and the States. But on that account conflicting exercise of the power cannot be envisagedBut in the next breath it has been observed that the amount fixed for being paid to the owner is wholly beyond the pale of challenge that it is inadequate. The concept of adequacy is directlyd to the market value of the property and therefore, such value cannot constitute an element of that challenge. But this was the situation after amendment of Art. 31(2) by the ConstitutionAct. Even as the article stood at the relevant time it was open to the legislature to fix principle for determining compensation and unless it is shown that t he principles are irrelevant to the determination of the value of the property or by working out the compensation according to the principles so specified the compensation becomes illusory, the principles themselves are beyond the pale of challenge before a court of law on the ground that they do not provide adequate compensation. Now, here the compensation is worked out and specified in the schedule to the impugned Act. The compensation is determined in round figure. This Court h as in terms accepted that payment of compensation on the basis of written down value calculated according to thex law for used machinery is not irrelevant as a principle for determining compensation. That principle appears to have been adopted for valuing used machinery though the legislation fixes compensation payable to each undertaking in round sum. And that was the only part challenged.It was, however, said that no principle is discernible because not only none was state d on the floor of the House but to a specific question the reply was that principle is not to be disclosed. Debate in legislature cannot conclude the point. Here the principle is discernible and that appears to be valid. It represents the collective will of the House. To reject it would tantamount to saying that the majority members voted without understanding and appreciating the principles. However, the principle is extracted in court room debate and it is a valid principleA peep into the background leading to the acquisition of the scheduled undertakings would reveal that these scheduled undertakings had a heavyd of carried forward loss, that even though they were taking sugar cane from cane growers, i.e. the farmers, they failed to pay them the price of sugar cane. There was labour unrest as labour was not paid. Generally speaking, they can be styled as sick undertakings and become a drag on the economy of the area. There was no s cope for ploughing back the profits to rejuvenate the machinery because there was no profit. The situation had not improved even when managements of some of the undertakings were taken over under the IDR Act and, therefore, this desperate situation called for a drastic remedy in public interest and while applying that drastic remedy of acquisition principles which are valid for determining the value of machinery were adopted. The adequacy or otherwise of compensation on the calculus made by applying the principle is beyond the judicial review. It would be a day time hallucination to call such principle irrelevant or compensation illusory. The challenge to the validity of the impugned legislation on the ground of violation of Art. 31 (2) must accordingly fail.There remain two minor and incidental points mentioned in passing. The submissions themselves lacked emphasis. They are, that:(1) no compensation is provided for the agricultural land taken over by the State;l of the scheduled undertakings was not evaluated as a component of compensationI n each of those cases, the declaration made by Parliament in the concerned enactment limited the control of the regulation of the mines and the development of minerals to the extent provided in the enactment. Whether the terms in which t he declaration has been framed in s. 2 of the Industries (Development and Regulation)a declaration not expressly limiting control of the specific industries to the extent provided by then be construed as being so limited is a matte r which, we think, we should deal with in some more appropriate case. The range of considerations encompassed within the field of enquiry to which the point is amenable has not, to our mind, been sufficiently covered before us. And f or good reason. The provocation was limited. For the controversy in the present cases concerning the legislative competence of the State Legislature to enact the U.P. Sugar Undertakings (Acquisition) Act, 1971 can be adequately disposed of on the ground that the legislation falls within Entry 42 of List III and cannot be related to Entry 52 of List I or Entry 24 of List II. When the impugned enactment truly falls within Entry 42 of Liste is a reluctance to enter upon an examination of the mutually competing claims of Entry 52 of List I and Entry 24 of Lists which deal with industries, an entirely different subjecth this reservation, we have no hesitation in agreeing with the ultimate conclusions reached by our learned brother on the remaining points of controversy and in concurring with the order proposed by him disposing of these appeals and special leave petitions.
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Pricol Limited Vs. Johnson Controls Enterprise Ltd. & Others | the present application under Section 11(6) of the Act would justify appropriate orders from the Court. It is also argued that the parties to the JVA have not excluded the application of Part I of the Act of 1996. The JVA has been signed earlier to the decision of this Court in Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc. [(2012) 9 SCC 552] . Therefore, the procedural law governing the conduct of the arbitration would be the law prevailing in India. 6. It is alternatively submitted that even assuming that the seat of Arbitration is Singapore, as the rights of the parties are to be governed by the Indian Law, it is only the curial law of Singapore that would apply to regulate the proceedings after the appointment of the Arbitrator is made and till the passing of the Award. Reference in this regard is made to Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. and others [(1998) 1 SCC 305] On the aforesaid basis, it is claimed that the appointment of the sole Arbitrator by the SIAC is without jurisdiction and this Court ought to proceed to exercise its powers under Section 11(6) of the Act. 7. In reply, the respondents submit that clause 30.3 of the JVA makes it, ex facie, clear that the parties have agreed that the seat of Arbitration would be Singapore. Though the substantive Law that would govern the rights of the parties under the JVA would be the Indian Law so far as the appointment of Arbitrator is concerned, it is the agreed terms (clause 30.2) which will prevail. It is submitted that on a reasonable understanding of clause 30.2, the request of the respondents to the SIAC for appointment of a sole Arbitrator and the appointment made does not suffer from any infirmity. It is claimed that the Singapore Chamber of Commerce, not being an Arbitration Institution, the real intention of the parties in clause 30.2 was to approach the SIAC for appointment of an Arbitrator in the event of the failure of a mutual agreement on this score. This has been so done by the respondents. Learned counsel for the respondents has also taken the Court to the past history of the dispute between the parties commencing with the grant of interim measures by the Civil Court at Coimbatore under Section 9 of the Act and the failure on the part of the petitioner to agree to the appointment of a retired judge of the Supreme Court of India as the sole Arbitrator. The said facts have been pointed out in support of the contention that the petitioner has dragged its feet in the matter so as to gain maximum advantage of the interim order granted in its favour by the Civil Court at Coimbatore. Lastly, it is submitted that the Arbitrator having been appointed by the SIAC in accordance with the relevant Arbitration clause in the JVA and the petitioner having submitted to the jurisdiction of the Arbitrator and, in fact, a partial award having been passed by the sole Arbitrator on the issue of jurisdiction, the present is not a fit case for invoking the powers of this Court under Section 11(6) of the Act. 8. On a consideration of the respective submissions made by the parties and the several precedents cited at the bar, this Court is inclined to hold that clause 30.2, on a reasonable and meaningful construction thereof, would mean that in case the parties are not able to name a sole Arbitrator by mutual agreement, the Arbitrator is to be appointed by the SIAC inasmuch as the entity contemplated in clause 30.2 i.e. Singapore Chamber of Commerce is admittedly not an Arbitration Institution having its own Rules for appointment of Arbitrators. Given the circumstance, the most reasonable construction of the said clause would be to understand the reference to Singapore Chamber of Commerce as to the SIAC. 9. From the relevant facts of the case, it is also clear that the respondents at one time had suggested the name of a retired judge of the Supreme Court of India as the sole Arbitrator, which was not agreed to by the petitioner, who in turn, was inclined to nominate another learned judge. Be that as it may, in such a situation, the respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator. This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner. Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to pre- empt the appointment of a sole Arbitrator by SIAC. Mr. Steven Y.H. Lim came to be appointed as the sole Arbitrator by the SIAC on 29th September, 2014. The petitioner has submitted to the jurisdiction of Mr. Steven Y.H. Lim. Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act which empowers the Chief Justice or his nominee only to appoint an Arbitrator in case the parties fail to do so in accordance with the terms agreed upon by them. To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing Mr. Lim as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator. Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act, a view already expressed by this Court in a recent decision in Antrix Corp. Ltd. vs. Devas Multimedia P. Ltd. [Arbitration Petition NO.20 of 2011 decided on May 10, 2013, reported in (2013) 6 SCR 453]. | 0[ds]8. On a consideration of the respective submissions made by the parties and the several precedents cited at the bar, this Court is inclined to hold that clause 30.2, on a reasonable and meaningful construction thereof, would mean that in case the parties are not able to name a sole Arbitrator by mutual agreement, the Arbitrator is to be appointed by the SIAC inasmuch as the entity contemplated in clause 30.2 i.e. Singapore Chamber of Commerce is admittedly not an Arbitration Institution having its own Rules for appointment of Arbitrators. Given the circumstance, the most reasonable construction of the said clause would be to understand the reference to Singapore Chamber of Commerce as to the SIAC9. From the relevant facts of the case, it is also clear that the respondents at one time had suggested the name of a retired judge of the Supreme Court of India as the sole Arbitrator, which was not agreed to by the petitioner, who in turn, was inclined to nominate another learned judge. Be that as it may, in such a situation, the respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator. This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner. Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to preempt the appointment of a sole Arbitrator by SIAC. Mr. Steven Y.H. Lim came to be appointed as the sole Arbitrator by the SIAC on 29th September, 2014. The petitioner has submitted to the jurisdiction of Mr. Steven Y.H. Lim. Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act which empowers the Chief Justice or his nominee only to appoint an Arbitrator in case the parties fail to do so in accordance with the terms agreed upon by them. To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing Mr. Lim as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator. Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act, a view already expressed by this Court in a recent decision in Antrix Corp. Ltd. vs. Devas Multimedia P. Ltd. [Arbitration Petition NO.20 of 2011 decided on May 10, 2013, reported in (2013) 6 SCR 453]. | 0 | 1,981 | 516 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the present application under Section 11(6) of the Act would justify appropriate orders from the Court. It is also argued that the parties to the JVA have not excluded the application of Part I of the Act of 1996. The JVA has been signed earlier to the decision of this Court in Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc. [(2012) 9 SCC 552] . Therefore, the procedural law governing the conduct of the arbitration would be the law prevailing in India. 6. It is alternatively submitted that even assuming that the seat of Arbitration is Singapore, as the rights of the parties are to be governed by the Indian Law, it is only the curial law of Singapore that would apply to regulate the proceedings after the appointment of the Arbitrator is made and till the passing of the Award. Reference in this regard is made to Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. and others [(1998) 1 SCC 305] On the aforesaid basis, it is claimed that the appointment of the sole Arbitrator by the SIAC is without jurisdiction and this Court ought to proceed to exercise its powers under Section 11(6) of the Act. 7. In reply, the respondents submit that clause 30.3 of the JVA makes it, ex facie, clear that the parties have agreed that the seat of Arbitration would be Singapore. Though the substantive Law that would govern the rights of the parties under the JVA would be the Indian Law so far as the appointment of Arbitrator is concerned, it is the agreed terms (clause 30.2) which will prevail. It is submitted that on a reasonable understanding of clause 30.2, the request of the respondents to the SIAC for appointment of a sole Arbitrator and the appointment made does not suffer from any infirmity. It is claimed that the Singapore Chamber of Commerce, not being an Arbitration Institution, the real intention of the parties in clause 30.2 was to approach the SIAC for appointment of an Arbitrator in the event of the failure of a mutual agreement on this score. This has been so done by the respondents. Learned counsel for the respondents has also taken the Court to the past history of the dispute between the parties commencing with the grant of interim measures by the Civil Court at Coimbatore under Section 9 of the Act and the failure on the part of the petitioner to agree to the appointment of a retired judge of the Supreme Court of India as the sole Arbitrator. The said facts have been pointed out in support of the contention that the petitioner has dragged its feet in the matter so as to gain maximum advantage of the interim order granted in its favour by the Civil Court at Coimbatore. Lastly, it is submitted that the Arbitrator having been appointed by the SIAC in accordance with the relevant Arbitration clause in the JVA and the petitioner having submitted to the jurisdiction of the Arbitrator and, in fact, a partial award having been passed by the sole Arbitrator on the issue of jurisdiction, the present is not a fit case for invoking the powers of this Court under Section 11(6) of the Act. 8. On a consideration of the respective submissions made by the parties and the several precedents cited at the bar, this Court is inclined to hold that clause 30.2, on a reasonable and meaningful construction thereof, would mean that in case the parties are not able to name a sole Arbitrator by mutual agreement, the Arbitrator is to be appointed by the SIAC inasmuch as the entity contemplated in clause 30.2 i.e. Singapore Chamber of Commerce is admittedly not an Arbitration Institution having its own Rules for appointment of Arbitrators. Given the circumstance, the most reasonable construction of the said clause would be to understand the reference to Singapore Chamber of Commerce as to the SIAC. 9. From the relevant facts of the case, it is also clear that the respondents at one time had suggested the name of a retired judge of the Supreme Court of India as the sole Arbitrator, which was not agreed to by the petitioner, who in turn, was inclined to nominate another learned judge. Be that as it may, in such a situation, the respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator. This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner. Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to pre- empt the appointment of a sole Arbitrator by SIAC. Mr. Steven Y.H. Lim came to be appointed as the sole Arbitrator by the SIAC on 29th September, 2014. The petitioner has submitted to the jurisdiction of Mr. Steven Y.H. Lim. Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act which empowers the Chief Justice or his nominee only to appoint an Arbitrator in case the parties fail to do so in accordance with the terms agreed upon by them. To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing Mr. Lim as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator. Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act, a view already expressed by this Court in a recent decision in Antrix Corp. Ltd. vs. Devas Multimedia P. Ltd. [Arbitration Petition NO.20 of 2011 decided on May 10, 2013, reported in (2013) 6 SCR 453].
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8. On a consideration of the respective submissions made by the parties and the several precedents cited at the bar, this Court is inclined to hold that clause 30.2, on a reasonable and meaningful construction thereof, would mean that in case the parties are not able to name a sole Arbitrator by mutual agreement, the Arbitrator is to be appointed by the SIAC inasmuch as the entity contemplated in clause 30.2 i.e. Singapore Chamber of Commerce is admittedly not an Arbitration Institution having its own Rules for appointment of Arbitrators. Given the circumstance, the most reasonable construction of the said clause would be to understand the reference to Singapore Chamber of Commerce as to the SIAC9. From the relevant facts of the case, it is also clear that the respondents at one time had suggested the name of a retired judge of the Supreme Court of India as the sole Arbitrator, which was not agreed to by the petitioner, who in turn, was inclined to nominate another learned judge. Be that as it may, in such a situation, the respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator. This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner. Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to preempt the appointment of a sole Arbitrator by SIAC. Mr. Steven Y.H. Lim came to be appointed as the sole Arbitrator by the SIAC on 29th September, 2014. The petitioner has submitted to the jurisdiction of Mr. Steven Y.H. Lim. Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act which empowers the Chief Justice or his nominee only to appoint an Arbitrator in case the parties fail to do so in accordance with the terms agreed upon by them. To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing Mr. Lim as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator. Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act, a view already expressed by this Court in a recent decision in Antrix Corp. Ltd. vs. Devas Multimedia P. Ltd. [Arbitration Petition NO.20 of 2011 decided on May 10, 2013, reported in (2013) 6 SCR 453].
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M/S. Chandulal & Company Limited & Others Vs. Natwarlal Chunilal Bhalakia & Others | of the Managing Agent shall be a sum based on a fixed percentage of the net annual profits of the company, with provision for a minimum payment in the case of absence of or inadequacy of profits, together with an office allowance to be defined in the agreement of management. Now, S. 87C was inserted in the Indian Companies Act by the Amendment Act 22 of 1936, which came into operation on 15-1-1937, and it is urged that since defendant 5, Seth Narottamdas, was appointed as Managing Agent on 15-11- 1937, the provisions of S. 87C would apply to his appointment and no extra-remuneration could be paid to him, unless it was sanctioned by a special resolution of the company. Exhibit 97 is the resolution passed at the meeting of the Board of Directors of defendant No. 1 Company on 15-11-193 7. It recorded that in place of the deceased Seth Jethalal Purshottamdas, Seth Narottamdas Jethalal (defendant 5) was to work with all the rights as Secretary, Treasurer and Agent of the deceased Seth Jethalal Purshottamdas, as his legal representative in virtue of his own right and in virtue of his nomination, as contemplated by the agreement made between the Bhalakia Mills Company Ltd. and the defendant No. 1 Company. It cannot, therefore, be said that defendant No. 1 Company had appointed defendant 5 as its Managing Agent after the commencement of the Indian Companies (Amendment) Act, 1936, that is to say after 15-1-193 7. Defendant 5 replaced the deceased Seth Jethalal as a Managing Agent of defendant No. 1 Company by virtue of the provisions in the Memorandum and Articles of Association of defendant No. 1 Company and as per agreement made between defendant No. 1 Company and Seth Jethalal. If that be so, in our opinion, the provisions of S. 87C, Indian Companies Act have no application and would not require defendant No. 1 Company to pass a special resolution for payment of extra remuneration to its Managing Agent. 10. It was also urged that the notice dated 21-6-1949 of the general meeting, sent to the plaintiff was not valid in so far as item No . (5) was concerned, and that therefore the resolution regarding payment of extra remuneration was illegal. Mr. Munshi relied, in support of his contention regarding the validity of the notice, on - Narayanlal v. Manekji Petit Manufacturing Co. Ltd., AIR 1931 Bom 354 (D), which held that the resolutions passed by the company in that case were not valid and binding on the company as the notice convening the meeting and the circular accompanying it did not give a sufficiently full and frank disclosure of the facts upon which the shareholders were asked to vote. Mr. Munshi make a similar grievance of the notice in the present case (Ex. 91A) and says that item (5) on the agenda or business did not contain a frank and full disclosure of all that was going to be presented at the meeting regarding the subject of additional remuneration to the Companys Agent. We do not think that there is any substance in this argument. As soon as the notice was received, the present plaintiffs seem to have immediately moved in the matter and plaintiff 6. Jiwanlal Purshottamdas, gave a notice to the Chairman of the Board of Directors objecting to the inclusion of item (5) on the agenda of the meeting. To that notice, as already stated, defendant No. 1 Company gave a reply that the inclusion of the item was quite proper and legal, and before the meeting could be held the present suit came to be filed on 16-7-1949 by plaintiff 1 for self and other shareholders who agreed with him. In our opinion therefore, the finding of the trial Court that the notice convening the annual genera meeting, so far as item (5) was concerned, was illegal is not correct. 1 1. No other points were urged en behalf of the respondents in support of the decree of the trial Court. We may point out that after the present appeal was filed by the original defendants, defendant 5 Seth Narottamdas, died, and his heirs and legal representatives have been duly brought on record. It is not urged that the appeal would in any way be affected on account of the death of the original defendant 5. 12. We, therefore, allow First Appeal No. 134 of 1951, set aside the decree of the trial Court and dismiss the plaintiffs suit with costs throughout, costs to be paid by respondent 6 (original plaintiff 6). The cross objections also fail and are dismissed with costs. 13. First Appeal No. 549 of 1951 was allowed to stand over on the request of Mr. A.S. Pradhan, who pleaded want of instructions from his clients and therefore wanted an adjournment. When the appeal was again fixed for hearing Mr. Karlekar on behalf of the respondents urged a preliminary objection that the appeal had become incompetent on account of the death of respondent 5 (original defendant 5) and though his heirs and legal representatives were brought on record, the plaintiffs could have no cause of action against them and could not prosecute the appeal. In the suit out of which this appeal has arisen, the plaintiffs challenged the validity of the appointment of Seth Narottamdas Jethalal as the Managing Agent of Chandulal and Company Ltd., (defendant 1) and prayed for a declaration that defendant 5 was not validly and legally appointed Managing Agent of defendant No. 1 Company and for an injunction restraining defendant 5 from acting as such. The trial Court held that the plaintiffs were not entitled to such a declaration and injunction, and dismissed the plaintiffs suit with costs. As the original defendant 5 Seth Narottamdas Jethalal is now dead, it is obvious that the plaintiffs right to sue does not survive against either defendant No. 1 Company or the heirs and legal representatives of defendant 5. This position has been conceded by Mr. Munshi. 1 | 0[ds]As already stated above, in the resignation of Seth Chandulal Mashruwala as the Managing Agent, Seth Jethalal Purshottamdas came to be appointed in his place and the original cl. (15) in para. III of the objects of the defendant No. 1 Company was substituted by a new paragraph. The Board of Directors of defendant No. 1 Company were authorised therein to execute an agreement in connection with the terms and conditions of appointment and the remuneration of the said JethalalExhibit 133 is the Memorandum of Association of the Bhalakia Mills Company Ltd. with the Articles of Association and Sch. A annexed. The schedules annexed to Exs. 90 and 136 are identical, and the relevant portion of cl. 2(e) of the said schedule shows that out of the total net amount of the commission payable to the Agents firm a share of nine annas in a rupee of sixteen annas was to be called the Management Commission, while the remaining seven annas commission was to be called the Promoters commissionIn consideration of the work of management, 72 shares of defendant No. 1 Company representing the nine annas commission were allotted to Chandulal Karsandas Mashruwala and Seth Jethalal Purshottamdas, and on the resignation of Chandulal Karsandas Mashruwala the shares standing in his name were transferred to Seth JethalalThe remaining seven annas commission was payable to all the members of the Agents firm including Chandulal Karsandas Mashruwala and Seth Jethalal Purshottamdas and their heirs, executors, assigns and legal representatives, etc., from time to time in consideration of the help given by them in promoting and floating the Bhalakia Mills Company Ltd. subscribing to and getting subscribed a large number of shares by finding persons who will subscribe to its shares and by rendering financial helpThe lower Court was of the view that, the appointment of Seth Jethalal as the Managing Agent of the defendant No. 1 Company and the terms and conditions of his appointment and his remuneration constituted a condition in the Memorandum of Association of defendant No. It Company and the action of the company in passing a resolution givingn to the Managing AgentIn our opinion, this argument cannot be accepted. The mere fact that the appointment of the Managing Agent and the terms and conditions of his appointment and his remuneration were mentioned in the objects of the defendant No. 1 Company would not make the provisions relating to the appointment and the remuneration a condition contained in the Memorandum of association, as contemplated in S. 10 of the ActThe provision relating to the appointment of a managing agent is merely a detail concerning the management of the company and a company will be entitled to regulate that detail in such manner as it likes without going to the Court for its sanction and without recourse to a special resolution, as contemplated in S. 12, Indian Companies ActAs the judgment of Fry, L.J. at page 384 shows, provisions in the memorandum of association with regard to details as to the management of the company would not be conditions within the meaning of the Companies Act. And that is also the effect of the proviso to S. 10, Indian Companies Act. In our opinion, therefore, the view of the trial Court that defendant No. 1 Company was not authorised to pay extracould not pass a resolution in respect thereof cannot be accepted7. It recorded that in place of the deceased Seth Jethalal Purshottamdas, Seth Narottamdas Jethalal (defendant 5) was to work with all the rights as Secretary, Treasurer and Agent of the deceased Seth Jethalal Purshottamdas, as his legal representative in virtue of his own right and in virtue of his nomination, as contemplated by the agreement made between the Bhalakia Mills Company Ltd. and the defendant No. 1 Company7. Defendant 5 replaced the deceased Seth Jethalal as a Managing Agent of defendant No. 1 Company by virtue of the provisions in the Memorandum and Articles of Association of defendant No. 1 Company and as per agreement made between defendant No. 1 Company and Seth JethalalIf that be so, in our opinion, the provisions of S. 87C, Indian Companies Act have no application and would not require defendant No. 1 Company to pass a special resolution for payment of extra remuneration to its Managing AgentWe do not think that there is any substance in this argumentAs soon as the notice was received, the present plaintiffs seem to have immediately moved in the matter and plaintiff6. Jiwanlal Purshottamdas, gave a notice to the Chairman of the Board of Directors objecting to the inclusion of item (5) on the agenda of the meeting. To that notice, as already stated, defendant No. 1 Company gave a reply that the inclusion of the item was quite proper and legal, and before the meeting could be held the present suit came to be filed on9 by plaintiff 1 for self and other shareholders who agreed with him1. No other points were urged en behalf of the respondents in support of the decree of the trial Court. We may point out that after the present appeal was filed by the original defendants, defendant 5 Seth Narottamdas, died, and his heirs and legal representatives have been duly brought on record. It is not urged that the appeal would in any way be affected on account of the death of the original defendant 513. First Appeal No. 549 of 1951 was allowed to stand over on the request of Mr. A.S. Pradhan, who pleaded want of instructions from his clients and therefore wanted an adjournment. When the appeal was again fixed for hearing Mr. Karlekar on behalf of the respondents urged a preliminary objection that the appeal had become incompetent on account of the death of respondent 5 (original defendant 5) and though his heirs and legal representatives were brought on record, the plaintiffs could have no cause of action against them and could not prosecute the appealIn the suit out of which this appeal has arisen, the plaintiffs challenged the validity of the appointment of Seth Narottamdas Jethalal as the Managing Agent of Chandulal and Company Ltd., (defendant 1) and prayed for a declaration that defendant 5 was not validly and legally appointed Managing Agent of defendant No. 1 Company and for an injunction restraining defendant 5 from acting as suchThe trial Court held that the plaintiffs were not entitled to such a declaration and injunction, and dismissed the plaintiffs suit with costs. As the original defendant 5 Seth Narottamdas Jethalal is now dead, it is obvious that the plaintiffs right to sue does not survive against either defendant No. 1 Company or the heirs and legal representatives of defendant5. This position has been conceded by Mr. Munshi. | 0 | 5,014 | 1,219 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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of the Managing Agent shall be a sum based on a fixed percentage of the net annual profits of the company, with provision for a minimum payment in the case of absence of or inadequacy of profits, together with an office allowance to be defined in the agreement of management. Now, S. 87C was inserted in the Indian Companies Act by the Amendment Act 22 of 1936, which came into operation on 15-1-1937, and it is urged that since defendant 5, Seth Narottamdas, was appointed as Managing Agent on 15-11- 1937, the provisions of S. 87C would apply to his appointment and no extra-remuneration could be paid to him, unless it was sanctioned by a special resolution of the company. Exhibit 97 is the resolution passed at the meeting of the Board of Directors of defendant No. 1 Company on 15-11-193 7. It recorded that in place of the deceased Seth Jethalal Purshottamdas, Seth Narottamdas Jethalal (defendant 5) was to work with all the rights as Secretary, Treasurer and Agent of the deceased Seth Jethalal Purshottamdas, as his legal representative in virtue of his own right and in virtue of his nomination, as contemplated by the agreement made between the Bhalakia Mills Company Ltd. and the defendant No. 1 Company. It cannot, therefore, be said that defendant No. 1 Company had appointed defendant 5 as its Managing Agent after the commencement of the Indian Companies (Amendment) Act, 1936, that is to say after 15-1-193 7. Defendant 5 replaced the deceased Seth Jethalal as a Managing Agent of defendant No. 1 Company by virtue of the provisions in the Memorandum and Articles of Association of defendant No. 1 Company and as per agreement made between defendant No. 1 Company and Seth Jethalal. If that be so, in our opinion, the provisions of S. 87C, Indian Companies Act have no application and would not require defendant No. 1 Company to pass a special resolution for payment of extra remuneration to its Managing Agent. 10. It was also urged that the notice dated 21-6-1949 of the general meeting, sent to the plaintiff was not valid in so far as item No . (5) was concerned, and that therefore the resolution regarding payment of extra remuneration was illegal. Mr. Munshi relied, in support of his contention regarding the validity of the notice, on - Narayanlal v. Manekji Petit Manufacturing Co. Ltd., AIR 1931 Bom 354 (D), which held that the resolutions passed by the company in that case were not valid and binding on the company as the notice convening the meeting and the circular accompanying it did not give a sufficiently full and frank disclosure of the facts upon which the shareholders were asked to vote. Mr. Munshi make a similar grievance of the notice in the present case (Ex. 91A) and says that item (5) on the agenda or business did not contain a frank and full disclosure of all that was going to be presented at the meeting regarding the subject of additional remuneration to the Companys Agent. We do not think that there is any substance in this argument. As soon as the notice was received, the present plaintiffs seem to have immediately moved in the matter and plaintiff 6. Jiwanlal Purshottamdas, gave a notice to the Chairman of the Board of Directors objecting to the inclusion of item (5) on the agenda of the meeting. To that notice, as already stated, defendant No. 1 Company gave a reply that the inclusion of the item was quite proper and legal, and before the meeting could be held the present suit came to be filed on 16-7-1949 by plaintiff 1 for self and other shareholders who agreed with him. In our opinion therefore, the finding of the trial Court that the notice convening the annual genera meeting, so far as item (5) was concerned, was illegal is not correct. 1 1. No other points were urged en behalf of the respondents in support of the decree of the trial Court. We may point out that after the present appeal was filed by the original defendants, defendant 5 Seth Narottamdas, died, and his heirs and legal representatives have been duly brought on record. It is not urged that the appeal would in any way be affected on account of the death of the original defendant 5. 12. We, therefore, allow First Appeal No. 134 of 1951, set aside the decree of the trial Court and dismiss the plaintiffs suit with costs throughout, costs to be paid by respondent 6 (original plaintiff 6). The cross objections also fail and are dismissed with costs. 13. First Appeal No. 549 of 1951 was allowed to stand over on the request of Mr. A.S. Pradhan, who pleaded want of instructions from his clients and therefore wanted an adjournment. When the appeal was again fixed for hearing Mr. Karlekar on behalf of the respondents urged a preliminary objection that the appeal had become incompetent on account of the death of respondent 5 (original defendant 5) and though his heirs and legal representatives were brought on record, the plaintiffs could have no cause of action against them and could not prosecute the appeal. In the suit out of which this appeal has arisen, the plaintiffs challenged the validity of the appointment of Seth Narottamdas Jethalal as the Managing Agent of Chandulal and Company Ltd., (defendant 1) and prayed for a declaration that defendant 5 was not validly and legally appointed Managing Agent of defendant No. 1 Company and for an injunction restraining defendant 5 from acting as such. The trial Court held that the plaintiffs were not entitled to such a declaration and injunction, and dismissed the plaintiffs suit with costs. As the original defendant 5 Seth Narottamdas Jethalal is now dead, it is obvious that the plaintiffs right to sue does not survive against either defendant No. 1 Company or the heirs and legal representatives of defendant 5. This position has been conceded by Mr. Munshi. 1
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said schedule shows that out of the total net amount of the commission payable to the Agents firm a share of nine annas in a rupee of sixteen annas was to be called the Management Commission, while the remaining seven annas commission was to be called the Promoters commissionIn consideration of the work of management, 72 shares of defendant No. 1 Company representing the nine annas commission were allotted to Chandulal Karsandas Mashruwala and Seth Jethalal Purshottamdas, and on the resignation of Chandulal Karsandas Mashruwala the shares standing in his name were transferred to Seth JethalalThe remaining seven annas commission was payable to all the members of the Agents firm including Chandulal Karsandas Mashruwala and Seth Jethalal Purshottamdas and their heirs, executors, assigns and legal representatives, etc., from time to time in consideration of the help given by them in promoting and floating the Bhalakia Mills Company Ltd. subscribing to and getting subscribed a large number of shares by finding persons who will subscribe to its shares and by rendering financial helpThe lower Court was of the view that, the appointment of Seth Jethalal as the Managing Agent of the defendant No. 1 Company and the terms and conditions of his appointment and his remuneration constituted a condition in the Memorandum of Association of defendant No. It Company and the action of the company in passing a resolution givingn to the Managing AgentIn our opinion, this argument cannot be accepted. The mere fact that the appointment of the Managing Agent and the terms and conditions of his appointment and his remuneration were mentioned in the objects of the defendant No. 1 Company would not make the provisions relating to the appointment and the remuneration a condition contained in the Memorandum of association, as contemplated in S. 10 of the ActThe provision relating to the appointment of a managing agent is merely a detail concerning the management of the company and a company will be entitled to regulate that detail in such manner as it likes without going to the Court for its sanction and without recourse to a special resolution, as contemplated in S. 12, Indian Companies ActAs the judgment of Fry, L.J. at page 384 shows, provisions in the memorandum of association with regard to details as to the management of the company would not be conditions within the meaning of the Companies Act. And that is also the effect of the proviso to S. 10, Indian Companies Act. In our opinion, therefore, the view of the trial Court that defendant No. 1 Company was not authorised to pay extracould not pass a resolution in respect thereof cannot be accepted7. It recorded that in place of the deceased Seth Jethalal Purshottamdas, Seth Narottamdas Jethalal (defendant 5) was to work with all the rights as Secretary, Treasurer and Agent of the deceased Seth Jethalal Purshottamdas, as his legal representative in virtue of his own right and in virtue of his nomination, as contemplated by the agreement made between the Bhalakia Mills Company Ltd. and the defendant No. 1 Company7. Defendant 5 replaced the deceased Seth Jethalal as a Managing Agent of defendant No. 1 Company by virtue of the provisions in the Memorandum and Articles of Association of defendant No. 1 Company and as per agreement made between defendant No. 1 Company and Seth JethalalIf that be so, in our opinion, the provisions of S. 87C, Indian Companies Act have no application and would not require defendant No. 1 Company to pass a special resolution for payment of extra remuneration to its Managing AgentWe do not think that there is any substance in this argumentAs soon as the notice was received, the present plaintiffs seem to have immediately moved in the matter and plaintiff6. Jiwanlal Purshottamdas, gave a notice to the Chairman of the Board of Directors objecting to the inclusion of item (5) on the agenda of the meeting. To that notice, as already stated, defendant No. 1 Company gave a reply that the inclusion of the item was quite proper and legal, and before the meeting could be held the present suit came to be filed on9 by plaintiff 1 for self and other shareholders who agreed with him1. No other points were urged en behalf of the respondents in support of the decree of the trial Court. We may point out that after the present appeal was filed by the original defendants, defendant 5 Seth Narottamdas, died, and his heirs and legal representatives have been duly brought on record. It is not urged that the appeal would in any way be affected on account of the death of the original defendant 513. First Appeal No. 549 of 1951 was allowed to stand over on the request of Mr. A.S. Pradhan, who pleaded want of instructions from his clients and therefore wanted an adjournment. When the appeal was again fixed for hearing Mr. Karlekar on behalf of the respondents urged a preliminary objection that the appeal had become incompetent on account of the death of respondent 5 (original defendant 5) and though his heirs and legal representatives were brought on record, the plaintiffs could have no cause of action against them and could not prosecute the appealIn the suit out of which this appeal has arisen, the plaintiffs challenged the validity of the appointment of Seth Narottamdas Jethalal as the Managing Agent of Chandulal and Company Ltd., (defendant 1) and prayed for a declaration that defendant 5 was not validly and legally appointed Managing Agent of defendant No. 1 Company and for an injunction restraining defendant 5 from acting as suchThe trial Court held that the plaintiffs were not entitled to such a declaration and injunction, and dismissed the plaintiffs suit with costs. As the original defendant 5 Seth Narottamdas Jethalal is now dead, it is obvious that the plaintiffs right to sue does not survive against either defendant No. 1 Company or the heirs and legal representatives of defendant5. This position has been conceded by Mr. Munshi.
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P. N. Easwara Iyer Vs. P. N. Venkatasubramania Iyer and Others | determined and properties had been allotted according to the respective shares, the property at items Nos. 210 to 282 were set apart separately and entrusted to the possession of the first defendant for the purpose mentioned above. It is important to note that the deed does not mention that the ownership of the properties was transferred to the first defendant. They were coparcenary properties entrusted as such to the first defendant. The plaintiff, who did not consider that the partition set up in 1940 by the first defendant between him and his sons was binding on them, filed a suit (No. 1 of 1940) against the first defendant for recovery of his share of the money owed to him by the larger family. The suit was decreed on July 30, 1933 and it appears that the decree was satisfied from other funds. It seems to us clear that the properties at items Nos. 210 to 282, which were originally in the nature of coparcenary property, remained coparcenary property in the hands of the first defendant and were liable to partition between him and his sons. It was strenuously urged that the properties had been given by the larger family to the first defendant subject to the obligation that he should personally discharge the debts owed by the larger family to his sons and, therefore, it is said, the properties must be regarded as his personal property. The contention is not supported by the partition deed of 1939, nor by any other material before us. Reliance was also placed by the defendants on K. V. Narayanan v. K. V. Ranganandhan ((1976) 3 SCR 637 : (1977) 1 SCC 244 ), but we do not see how that case can assist the defendants. That was a case where on a partition between the two branches of the family certain properties were given to a member of one branch for discharging some family debts. The debts were discharged by him and subsequently on a suit for partition of his branch filed by him, he claimed that one of the items earmarked for the discharge of the debts and which had remained undisposed of, was his exclusive property as it was given to him absolutely. This court held that the properties had been given to him on the partition of 1929 as separate property and were not liable to partition. The deed under which the properties were entrusted to him showed that the sole responsibility for discharge of the debts had been placed on him, and his liability to discharge the debts was not confined to the extent of the properties but was irrespective of the sufficiency or otherwise of the properties, and any deficit or surplus had to be met or enjoyed by him exclusively. It was also apparent that the other branch which had separated in 1929 was no longer liable for the debts. The court found that the properties were given to the family member in view of his personal undertaking to discharge the debts. It is apparent at once that the facts of the case are distinguishable. In the instant case, the properties were coparcenary properties and continued as such throughout. They were given into the possession and not into the ownership of the first defendant. As they were not employed by him for the purpose for which they had been given, they remained available for partition between him and his sons. Accordingly, we hold that the "Karulai" estate, represented by the properties at items 210 to 282 must be regarded as coparcenary property liable to partition.19. In regard to the property "Venkata Vilas" at item 336, the record shows that it was purchased on September 19, 1920 for Rs. 50, 000 and that the purchase price proceeded from the coparcenary funds. The evidence has been carefully considered by the appellate court and it has found that the first defendant could not possibly have had sufficient personal funds in order to acquire the property. Indeed, the evidence discloses that a sum of Rs. 49, 000 was drawn by cheque on August 4, 1920 from the family account. We are in agreement with the appellate court that the property, "Venkata Vilas", constitutes coparcenary property available for partition between the members of the family.20. Towards the end it was urged on behalf of the defendants that even if the properties covered by the two settlements are regarded as coparcenary properties, the settlements were made when the family stood divided in status and therefore they should be regarded as valid at least to the extent of the share of first defendant. There appears to be no objection by any party to this suggestion being accepted, except that it pointed out by the plaintiff that the eighteenth defendant, representing the estate of her deceased husband, the fourth defendant, has filed no appeal in this Court against the decree of the appellate Court so far as declared invalid the settlement of November 30, 1949. It seems to us desirable on considerations of equal justice and in order to maintain consistency in these cases that we should make no exception in regard to the claim of the eighteenth defendant, and she should be entitled to the same interest in the one-fifth share of the first defendant in "Venkata Vilas" as the second defendant would have. In the circumstances, we hold that the settlement dated June 21, 1949 shall be treated as settling the one-fifth share of the first defendant in the properties mentioned therein on the second defendant, and the settlement dated November 30, 1949, which was intended in favour of the second and fourth defendants, shall be regarded as valid in favour of the second defendant and the eighteenth defendant, representing the estate of the fourth defendant, to the extent of one-half each of the one-fifth share of the first defendant in the property mentioned therein. The rest of the shares in all the properties shall be worked out in the light of this judgment. | 0[ds]It seems to us desirable on considerations of equal justice and in order to maintain consistency in these cases that we should make no exception in regard to the claim of the eighteenth defendant, and she should be entitled to the same interest in theshare of the first defendant in "Venkata Vilas" as the second defendant would have. In the circumstances, we hold that the settlement dated June 21, 1949 shall be treated as settling theshare of the first defendant in the properties mentioned therein on the second defendant, and the settlement dated November 30, 1949, which was intended in favour of the second and fourth defendants, shall be regarded as valid in favour of the second defendant and the eighteenth defendant, representing the estate of the fourth defendant, to the extent ofeach of theshare of the first defendant in the property mentioned therein. The rest of the shares in all the properties shall be worked out in the light of this judgment.The property at item 341 has been claimed by the fourth defendant as hisThe sale deed dated March 27, 1944 shows that a portion of land measuring about 29 grounds and 1777 sq. ft. was acquired by the fourth defendant. The property was purchased at a public auction by him and the appellate court has found that he paid Rs. 3, 000 on the acceptance of his bid and thereafter the balance of Rs. 9, 000 and that the property must be regarded as hisThere is abundant evidence before us to support that finding. It must be remembered that when the property was acquired in 1944, the fourth defendant was a divided member of the family. Further, even if the first defendant made a gift of money to the fourth defendant and the property was acquired from that money, the property must continue to be regarded as the separate property of the fourth defendant. It was never acquired by him for the family, and all that can be said is that the first defendant is liable to account for the money so gifted. Agreeing with the appellate court, we are of the opinion that this property is theof the fourthsee no case either for disturbing the finding of the appellate court that the jewellery claimed was not proved to belong to the coparcenary. The direction of the appellate court that the claim of the second defendant on account of improvements made by him should be determined by the court of the first instance was also assailed, but it has not been established that the direction is not justified and we should interfere with it.18. We now turn to the two settlements of property made by the first defendant on the second defendant, his sons and the fourth defendant. The properties at items Nos. 210 to 282 were settled on the second defendant and his sons by the first defendant under a deed of settlement dated June 21, 1949. It was recited in the deed that at the partition of the family the property had been allotted to the share of the settlers branch consisting of himself and his sons and that at the partition effected thereafter between him and his sons in 1940, the property had fallen to the share of the settlor. The second settlement was made by the first defendant on the second and fourth defendants by a deed dated November 30, 1949 and it related to the property described as "Venkata Vilas" mentioned at item No. 336. This was also described in the deed by the first defendant as his separate property. The appellate court has found that the two sets of property constitute coparcenary property and could not be described as separate property of the first defendant. As regards the properties at items Nos. 210 to 282, they were given by the larger family to the possession of the first defendant for the purpose of discharging debts owed by the larger family to the sons of the first defendant. The partition deed dated September 9, 1939 discloses that after the shares of the different branches of the larger family had been determined and properties had been allotted according to the respective shares, the property at items Nos. 210 to 282 were set apart separately and entrusted to the possession of the first defendant for the purpose mentioned above. It is important to note that the deed does not mention that the ownership of the properties was transferred to the first defendant. They were coparcenary properties entrusted as such to the first defendant. The plaintiff, who did not consider that the partition set up in 1940 by the first defendant between him and his sons was binding on them, filed a suit (No. 1 of 1940) against the first defendant for recovery of his share of the money owed to him by the larger family. The suit was decreed on July 30, 1933 and it appears that the decree was satisfied from other funds. It seems to us clear that the properties at items Nos. 210 to 282, which were originally in the nature of coparcenary property, remained coparcenary property in the hands of the first defendant and were liable to partition between him and his sons. It was strenuously urged that the properties had been given by the larger family to the first defendant subject to the obligation that he should personally discharge the debts owed by the larger family to his sons and, therefore, it is said, the properties must be regarded as his personal property. The contention is not supported by the partition deed of 1939, nor by any other material before us. Reliance was also placed by the defendants on K. V. Narayanan v. K. V. Ranganandhan ((1976) 3 SCR 637 : (1977) 1 SCC 244 ), but we do not see how that case can assist the defendants. That was a case where on a partition between the two branches of the family certain properties were given to a member of one branch for discharging some family debts. The debts were discharged by him and subsequently on a suit for partition of his branch filed by him, he claimed that one of the items earmarked for the discharge of the debts and which had remained undisposed of, was his exclusive property as it was given to him absolutely. This court held that the properties had been given to him on the partition of 1929 as separate property and were not liable to partition. The deed under which the properties were entrusted to him showed that the sole responsibility for discharge of the debts had been placed on him, and his liability to discharge the debts was not confined to the extent of the properties but was irrespective of the sufficiency or otherwise of the properties, and any deficit or surplus had to be met or enjoyed by him exclusively. It was also apparent that the other branch which had separated in 1929 was no longer liable for the debts. The court found that the properties were given to the family member in view of his personal undertaking to discharge the debts. It is apparent at once that the facts of the case are distinguishable. In the instant case, the properties were coparcenary properties and continued as such throughout. They were given into the possession and not into the ownership of the first defendant. As they were not employed by him for the purpose for which they had been given, they remained available for partition between him and his sons. Accordingly, we hold that the "Karulai" estate, represented by the properties at items 210 to 282 must be regarded as coparcenary property liable to partition. | 0 | 4,789 | 1,389 | ### Instruction:
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determined and properties had been allotted according to the respective shares, the property at items Nos. 210 to 282 were set apart separately and entrusted to the possession of the first defendant for the purpose mentioned above. It is important to note that the deed does not mention that the ownership of the properties was transferred to the first defendant. They were coparcenary properties entrusted as such to the first defendant. The plaintiff, who did not consider that the partition set up in 1940 by the first defendant between him and his sons was binding on them, filed a suit (No. 1 of 1940) against the first defendant for recovery of his share of the money owed to him by the larger family. The suit was decreed on July 30, 1933 and it appears that the decree was satisfied from other funds. It seems to us clear that the properties at items Nos. 210 to 282, which were originally in the nature of coparcenary property, remained coparcenary property in the hands of the first defendant and were liable to partition between him and his sons. It was strenuously urged that the properties had been given by the larger family to the first defendant subject to the obligation that he should personally discharge the debts owed by the larger family to his sons and, therefore, it is said, the properties must be regarded as his personal property. The contention is not supported by the partition deed of 1939, nor by any other material before us. Reliance was also placed by the defendants on K. V. Narayanan v. K. V. Ranganandhan ((1976) 3 SCR 637 : (1977) 1 SCC 244 ), but we do not see how that case can assist the defendants. That was a case where on a partition between the two branches of the family certain properties were given to a member of one branch for discharging some family debts. The debts were discharged by him and subsequently on a suit for partition of his branch filed by him, he claimed that one of the items earmarked for the discharge of the debts and which had remained undisposed of, was his exclusive property as it was given to him absolutely. This court held that the properties had been given to him on the partition of 1929 as separate property and were not liable to partition. The deed under which the properties were entrusted to him showed that the sole responsibility for discharge of the debts had been placed on him, and his liability to discharge the debts was not confined to the extent of the properties but was irrespective of the sufficiency or otherwise of the properties, and any deficit or surplus had to be met or enjoyed by him exclusively. It was also apparent that the other branch which had separated in 1929 was no longer liable for the debts. The court found that the properties were given to the family member in view of his personal undertaking to discharge the debts. It is apparent at once that the facts of the case are distinguishable. In the instant case, the properties were coparcenary properties and continued as such throughout. They were given into the possession and not into the ownership of the first defendant. As they were not employed by him for the purpose for which they had been given, they remained available for partition between him and his sons. Accordingly, we hold that the "Karulai" estate, represented by the properties at items 210 to 282 must be regarded as coparcenary property liable to partition.19. In regard to the property "Venkata Vilas" at item 336, the record shows that it was purchased on September 19, 1920 for Rs. 50, 000 and that the purchase price proceeded from the coparcenary funds. The evidence has been carefully considered by the appellate court and it has found that the first defendant could not possibly have had sufficient personal funds in order to acquire the property. Indeed, the evidence discloses that a sum of Rs. 49, 000 was drawn by cheque on August 4, 1920 from the family account. We are in agreement with the appellate court that the property, "Venkata Vilas", constitutes coparcenary property available for partition between the members of the family.20. Towards the end it was urged on behalf of the defendants that even if the properties covered by the two settlements are regarded as coparcenary properties, the settlements were made when the family stood divided in status and therefore they should be regarded as valid at least to the extent of the share of first defendant. There appears to be no objection by any party to this suggestion being accepted, except that it pointed out by the plaintiff that the eighteenth defendant, representing the estate of her deceased husband, the fourth defendant, has filed no appeal in this Court against the decree of the appellate Court so far as declared invalid the settlement of November 30, 1949. It seems to us desirable on considerations of equal justice and in order to maintain consistency in these cases that we should make no exception in regard to the claim of the eighteenth defendant, and she should be entitled to the same interest in the one-fifth share of the first defendant in "Venkata Vilas" as the second defendant would have. In the circumstances, we hold that the settlement dated June 21, 1949 shall be treated as settling the one-fifth share of the first defendant in the properties mentioned therein on the second defendant, and the settlement dated November 30, 1949, which was intended in favour of the second and fourth defendants, shall be regarded as valid in favour of the second defendant and the eighteenth defendant, representing the estate of the fourth defendant, to the extent of one-half each of the one-fifth share of the first defendant in the property mentioned therein. The rest of the shares in all the properties shall be worked out in the light of this judgment.
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of money to the fourth defendant and the property was acquired from that money, the property must continue to be regarded as the separate property of the fourth defendant. It was never acquired by him for the family, and all that can be said is that the first defendant is liable to account for the money so gifted. Agreeing with the appellate court, we are of the opinion that this property is theof the fourthsee no case either for disturbing the finding of the appellate court that the jewellery claimed was not proved to belong to the coparcenary. The direction of the appellate court that the claim of the second defendant on account of improvements made by him should be determined by the court of the first instance was also assailed, but it has not been established that the direction is not justified and we should interfere with it.18. We now turn to the two settlements of property made by the first defendant on the second defendant, his sons and the fourth defendant. The properties at items Nos. 210 to 282 were settled on the second defendant and his sons by the first defendant under a deed of settlement dated June 21, 1949. It was recited in the deed that at the partition of the family the property had been allotted to the share of the settlers branch consisting of himself and his sons and that at the partition effected thereafter between him and his sons in 1940, the property had fallen to the share of the settlor. The second settlement was made by the first defendant on the second and fourth defendants by a deed dated November 30, 1949 and it related to the property described as "Venkata Vilas" mentioned at item No. 336. This was also described in the deed by the first defendant as his separate property. The appellate court has found that the two sets of property constitute coparcenary property and could not be described as separate property of the first defendant. As regards the properties at items Nos. 210 to 282, they were given by the larger family to the possession of the first defendant for the purpose of discharging debts owed by the larger family to the sons of the first defendant. The partition deed dated September 9, 1939 discloses that after the shares of the different branches of the larger family had been determined and properties had been allotted according to the respective shares, the property at items Nos. 210 to 282 were set apart separately and entrusted to the possession of the first defendant for the purpose mentioned above. It is important to note that the deed does not mention that the ownership of the properties was transferred to the first defendant. They were coparcenary properties entrusted as such to the first defendant. The plaintiff, who did not consider that the partition set up in 1940 by the first defendant between him and his sons was binding on them, filed a suit (No. 1 of 1940) against the first defendant for recovery of his share of the money owed to him by the larger family. The suit was decreed on July 30, 1933 and it appears that the decree was satisfied from other funds. It seems to us clear that the properties at items Nos. 210 to 282, which were originally in the nature of coparcenary property, remained coparcenary property in the hands of the first defendant and were liable to partition between him and his sons. It was strenuously urged that the properties had been given by the larger family to the first defendant subject to the obligation that he should personally discharge the debts owed by the larger family to his sons and, therefore, it is said, the properties must be regarded as his personal property. The contention is not supported by the partition deed of 1939, nor by any other material before us. Reliance was also placed by the defendants on K. V. Narayanan v. K. V. Ranganandhan ((1976) 3 SCR 637 : (1977) 1 SCC 244 ), but we do not see how that case can assist the defendants. That was a case where on a partition between the two branches of the family certain properties were given to a member of one branch for discharging some family debts. The debts were discharged by him and subsequently on a suit for partition of his branch filed by him, he claimed that one of the items earmarked for the discharge of the debts and which had remained undisposed of, was his exclusive property as it was given to him absolutely. This court held that the properties had been given to him on the partition of 1929 as separate property and were not liable to partition. The deed under which the properties were entrusted to him showed that the sole responsibility for discharge of the debts had been placed on him, and his liability to discharge the debts was not confined to the extent of the properties but was irrespective of the sufficiency or otherwise of the properties, and any deficit or surplus had to be met or enjoyed by him exclusively. It was also apparent that the other branch which had separated in 1929 was no longer liable for the debts. The court found that the properties were given to the family member in view of his personal undertaking to discharge the debts. It is apparent at once that the facts of the case are distinguishable. In the instant case, the properties were coparcenary properties and continued as such throughout. They were given into the possession and not into the ownership of the first defendant. As they were not employed by him for the purpose for which they had been given, they remained available for partition between him and his sons. Accordingly, we hold that the "Karulai" estate, represented by the properties at items 210 to 282 must be regarded as coparcenary property liable to partition.
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State Bank of India & Another Vs. Mohammed Abdul Rahim | Sastry Award were not invoked and no departmental proceeding was initiated, the acquittal of the respondent has attained finality and, in effect would wipe out the initial conviction thereby entitling the respondent to back wages. Learned counsel for the respondent has also pointed out that in the decisions relied upon on behalf of the appellant-bank the basis for denial of back wages is the incarceration of the employee is custody following his arrest and conviction which disabled the employee from rendering any service whatsoever. In the present case the respondent was on bail all along. It is, therefore, argued that the ration of the decisions relied upon would not apply to the factsof the present case. 8. Before delving into the contentious issues arising from the arguments advanced, the issue with regard to the applicability of the provisions of the Sastry Award may be dealt with in the first instance. According to us, the said provisions do not have any special significance inasmuch as there can be no doubt on the proposition that on the very same facts that give rise to a criminal offence it is always open to the employer to initiate a departmental proceeding which option the employer may or may not exercise. In the event the employer chooses to initiate a departmental proceeding, it would be open for such an employer to take disciplinary action against the erring employee if the charged levelled are found to be substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that standard of proof in a criminal case and a departmental proceeding is different. However, in a case where the employer chooses not to initiate a departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same, i.e., in case of a reversal. The provisions of the Sastry Award, relied upon on behalf of the respondent, therefore, does not in any manner alter the basic principles surrounding the initiation of a criminal action and a departmental enquiry on the same set of facts and he consequences thereof. 9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that had led to the respondents dismissal/discharge in the present case had ceased to exist. The same would entitled him to be reinstated in service, an act that has been duly performed by the appellant-bank. 10. The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar (supra0, the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. In Banshi Dhar (supra), this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages was declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression moral turpitude is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages in as much as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant-bank from employing him. If the respondent could not have remained employed with the appellant-bank during the said period on account of the provisions of the Act. it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same have been granted by the appellant bank.11. The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.04.2002 and he was reinstated in service by the appellant bank on 07.11.2002. On the view that we have taken, at the highest what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.04.2002, until the date of his reinstatement, if the same has not already been granted by the appellant bank. | 1[ds]The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar (supra0, the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. In Banshi Dhar (supra), this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages was declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression moral turpitude is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages in as much as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on thefrom employing him. If the respondent could not have remained employed with theduring the said period on account of the provisions of the Act. it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same have been granted by the appellant bank.11. The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.04.2002 and he was reinstated in service by the appellant bank on 07.11.2002. On the view that we have taken, at the highest what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.04.2002, until the date of his reinstatement, if the same has not already been granted by the appellant bank. | 1 | 1,904 | 607 | ### 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:
Sastry Award were not invoked and no departmental proceeding was initiated, the acquittal of the respondent has attained finality and, in effect would wipe out the initial conviction thereby entitling the respondent to back wages. Learned counsel for the respondent has also pointed out that in the decisions relied upon on behalf of the appellant-bank the basis for denial of back wages is the incarceration of the employee is custody following his arrest and conviction which disabled the employee from rendering any service whatsoever. In the present case the respondent was on bail all along. It is, therefore, argued that the ration of the decisions relied upon would not apply to the factsof the present case. 8. Before delving into the contentious issues arising from the arguments advanced, the issue with regard to the applicability of the provisions of the Sastry Award may be dealt with in the first instance. According to us, the said provisions do not have any special significance inasmuch as there can be no doubt on the proposition that on the very same facts that give rise to a criminal offence it is always open to the employer to initiate a departmental proceeding which option the employer may or may not exercise. In the event the employer chooses to initiate a departmental proceeding, it would be open for such an employer to take disciplinary action against the erring employee if the charged levelled are found to be substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that standard of proof in a criminal case and a departmental proceeding is different. However, in a case where the employer chooses not to initiate a departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same, i.e., in case of a reversal. The provisions of the Sastry Award, relied upon on behalf of the respondent, therefore, does not in any manner alter the basic principles surrounding the initiation of a criminal action and a departmental enquiry on the same set of facts and he consequences thereof. 9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that had led to the respondents dismissal/discharge in the present case had ceased to exist. The same would entitled him to be reinstated in service, an act that has been duly performed by the appellant-bank. 10. The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar (supra0, the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. In Banshi Dhar (supra), this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages was declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression moral turpitude is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages in as much as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant-bank from employing him. If the respondent could not have remained employed with the appellant-bank during the said period on account of the provisions of the Act. it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same have been granted by the appellant bank.11. The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.04.2002 and he was reinstated in service by the appellant bank on 07.11.2002. On the view that we have taken, at the highest what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.04.2002, until the date of his reinstatement, if the same has not already been granted by the appellant bank.
### Response:
1
### Explanation:
The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar (supra0, the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. In Banshi Dhar (supra), this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages was declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression moral turpitude is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages in as much as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on thefrom employing him. If the respondent could not have remained employed with theduring the said period on account of the provisions of the Act. it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same have been granted by the appellant bank.11. The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.04.2002 and he was reinstated in service by the appellant bank on 07.11.2002. On the view that we have taken, at the highest what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.04.2002, until the date of his reinstatement, if the same has not already been granted by the appellant bank.
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Messrs L. B. Ghosh and Sons Vs. Ashok Kumar Saraf | Gupta, J. This appeal arises out of a proceeding for restitution under Section 144 of the Code of Civil Procedure. The respondent obtained a decree for eviction against M/s L.B. Ghosh & Sons, appellant before us. This decree was ultimately set aside by the High Court in appeal. In the decree that was passed the appellant who was the defendant in the suit was described as "M/s L.B. Ghosh & Sons" and it was not stated whether this was a partnership firm or a proprietary concern or a Hindu joint family business. Before the decree was set aside, the decree-holder respondent succeeded in recovering possession of the disputed premises in execution of the decree. After the decree was set aside, the appellant applied for restitution under Section 144 of the Code of Civil Procedure describing themselves just as they were described in the decree, "M/s L.B. Ghosh & Sons". An objection was taken as to the maintainability of the application for restitution on the ground that the applicant for restitution was not the defendant from whom possession had been recovered by the decree-holder. It may be stated here that there was some dispute in the suit as to whether the defendant was a proprietary concern or a partnership firm but, as stated already, in the decree the defendant was described only as M/s L.B. Ghosh & Sons. The City Civil Court at Calcutta hearing the miscellaneous case arising out of the application for restitution found no substance in the objection. On appeal the High Court at Calcutta however upheld the objection, held that the application for restitution as framed was not maintainable, and left it open to the "original judgment-debtor or anyone representing the said judgment-debtor", "entitled to the benefit of restitution", "to make a fresh application for restitution". The description of the petitioner in the application for restitution is the same as in the decree. We do not see any reason why the court giving effect to the order of restitution cannot take the decree as it stands. It may be stated here that in the suit the defendant had appeared through one Jatindra Mohan Ghosh and after his death which took place in the course of the ejectment proceedings, through one of his sons Ajit Kumar Ghosh. The application of restitution has also been filed through the said Ajit Kumar Ghosh. In these circumstances we do not think we should be justified in forcing the appellant before us to make another application for restitution thereby opening yet another chapter in the litigation between the parties which has gone on for quite some time now. | 1[ds]The description of the petitioner in the application for restitution is the same as in the decree. We do not see any reason why the court giving effect to the order of restitution cannot take the decree as it stands. It may be stated here that in the suit the defendant had appeared through one Jatindra Mohan Ghosh and after his death which took place in the course of the ejectment proceedings, through one of his sons Ajit Kumar Ghosh. The application of restitution has also been filed through the said Ajit Kumar Ghosh. In these circumstances we do not think we should be justified in forcing the appellant before us to make another application for restitution thereby opening yet another chapter in the litigation between the parties which has gone on for quite some time now. | 1 | 479 | 148 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
Gupta, J. This appeal arises out of a proceeding for restitution under Section 144 of the Code of Civil Procedure. The respondent obtained a decree for eviction against M/s L.B. Ghosh & Sons, appellant before us. This decree was ultimately set aside by the High Court in appeal. In the decree that was passed the appellant who was the defendant in the suit was described as "M/s L.B. Ghosh & Sons" and it was not stated whether this was a partnership firm or a proprietary concern or a Hindu joint family business. Before the decree was set aside, the decree-holder respondent succeeded in recovering possession of the disputed premises in execution of the decree. After the decree was set aside, the appellant applied for restitution under Section 144 of the Code of Civil Procedure describing themselves just as they were described in the decree, "M/s L.B. Ghosh & Sons". An objection was taken as to the maintainability of the application for restitution on the ground that the applicant for restitution was not the defendant from whom possession had been recovered by the decree-holder. It may be stated here that there was some dispute in the suit as to whether the defendant was a proprietary concern or a partnership firm but, as stated already, in the decree the defendant was described only as M/s L.B. Ghosh & Sons. The City Civil Court at Calcutta hearing the miscellaneous case arising out of the application for restitution found no substance in the objection. On appeal the High Court at Calcutta however upheld the objection, held that the application for restitution as framed was not maintainable, and left it open to the "original judgment-debtor or anyone representing the said judgment-debtor", "entitled to the benefit of restitution", "to make a fresh application for restitution". The description of the petitioner in the application for restitution is the same as in the decree. We do not see any reason why the court giving effect to the order of restitution cannot take the decree as it stands. It may be stated here that in the suit the defendant had appeared through one Jatindra Mohan Ghosh and after his death which took place in the course of the ejectment proceedings, through one of his sons Ajit Kumar Ghosh. The application of restitution has also been filed through the said Ajit Kumar Ghosh. In these circumstances we do not think we should be justified in forcing the appellant before us to make another application for restitution thereby opening yet another chapter in the litigation between the parties which has gone on for quite some time now.
### Response:
1
### Explanation:
The description of the petitioner in the application for restitution is the same as in the decree. We do not see any reason why the court giving effect to the order of restitution cannot take the decree as it stands. It may be stated here that in the suit the defendant had appeared through one Jatindra Mohan Ghosh and after his death which took place in the course of the ejectment proceedings, through one of his sons Ajit Kumar Ghosh. The application of restitution has also been filed through the said Ajit Kumar Ghosh. In these circumstances we do not think we should be justified in forcing the appellant before us to make another application for restitution thereby opening yet another chapter in the litigation between the parties which has gone on for quite some time now.
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Regional Director, E.S.I. Corporation Vs. Kerala State Drugs & Pharmaceuticals Ltd. and Ors | 1. The employees involved in these proceedings were engaged, according to the respondents, through its contractor for constructing vitamin A plant of the respondent-company. After the construction of the plant, the contractor and his employees were no longer connected with the respondents. It is thereafter that the appellant-Corporation raised a demand on the respondent-company for contribution in respect of the said employees towards insurance. Both the Insurance Court and the High Court held that since the contribution was demanded in respect of the employees who had since long ceased to be the employees working on the premises, no such contribution was leviable from the respondent-company. To arrive at this conclusion, the court gave two reasons. The first was that since the employee in respect of whom contribution was asked had : ceased to work in the premises of the respondent-company, there is no benefit which will now accrue to them by such contribution, and second, the workmen are unidentifiable. 2. We are afraid that the two courts misconceived both the object of the Act and the purpose of the insurance scheme under it. The contribution which is levied on the employer in respect of the employees engaged by him directly or through another agency 1 is for the benefit of all workmen in general who are covered by the Act. The contribution is irrespective of the fact whether the employees get or do not get the said benefit. That is also evident from the definition of insured person given in Section 2(14): of the Act which reads as follows : 2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- (14) insured person means a person who is or was an employee in respect of whom contributions are or were payable under this act and who is, by reason thereof, entitled to any of the benefits provided by this act. : 3. There is thus no quid pro quo between the persons insured and the benefit available under this Act. As regards the finding that the workmen were unidentifiable, what is forgotten is that under the act, once an establishment comes to be covered by the Act. the employer becomes liable to pay the contribution in respect of the employees in his employment directly or indirectly. The contribution which had become payable for the relevant period has to be paid even if the employees concerned are no longer in employment. Whether the employees are unidentifiable today or not is, therefore, irrelevant so long as the contribution was liable to be paid on their behalf, when they were in employment. 4. Shri Sampath, learned Counsel appearing for the appellant raised yet another point before us. He contended that the employees were not the employees of the respondent-company and hence the respondent-company was not liable to pay the contribution. We are afraid that this contention ignores the definition of the employee given in Section 2(9)(ii) of the act which is as follows: 2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- * * * (9) employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work of the factory or establishment or which is preliminary to the work which is ordinarily part of the work carried on in or incidental to the purpose of the factory or establishment; 5. Hence, we find no substance in any of the contentions. A similar point was decided by this is Court in a decision in employees State Insurance Corpn. v. Hotel Kalpaka International. In view of the said decision, there was no scope for any further arguments in the present case. However, we have dealt with the contentions raised for whatever they are worth. | 1[ds]2. We are afraid that the two courts misconceived both the object of the Act and the purpose of the insurance scheme under it. The contribution which is levied on the employer in respect of the employees engaged by him directly or through another agency 1 is for the benefit of all workmen in general who are covered by the Act. The contribution is irrespective of the fact whether the employees get or do not get the said benefit. That is also evident from the definition of insured person given in Section 2(14): of the Act which reads as follows :2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-(14) insured person means a person who is or was an employee in respect of whom contributions are or were payable under this act and who is, by reason thereof, entitled to any of the benefits provided by this act. :3. There is thus no quid pro quo between the persons insured and the benefit available under this Act. As regards the finding that the workmen were unidentifiable, what is forgotten is that under the act, once an establishment comes to be covered by the Act. the employer becomes liable to pay the contribution in respect of the employees in his employment directly or indirectly. The contribution which had become payable for the relevant period has to be paid even if the employees concerned are no longer in employment. Whether the employees are unidentifiable today or not is, therefore, irrelevant so long as the contribution was liable to be paid on their behalf, when they were in employment.We are afraid that this contention ignores the definition of the employee given in Section 2(9)(ii) of the act which is as follows:2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-(9) employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work of the factory or establishment or which is preliminary to the work which is ordinarily part of the work carried on in or incidental to the purpose of the factory or establishment;5. Hence, we find no substance in any of the contentions. A similar point was decided by this is Court in a decision in employees State Insurance Corpn. v. Hotel Kalpaka International. In view of the said decision, there was no scope for any further arguments in the present case. However, we have dealt with the contentions raised for whatever they are worth. | 1 | 735 | 514 | ### 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:
1. The employees involved in these proceedings were engaged, according to the respondents, through its contractor for constructing vitamin A plant of the respondent-company. After the construction of the plant, the contractor and his employees were no longer connected with the respondents. It is thereafter that the appellant-Corporation raised a demand on the respondent-company for contribution in respect of the said employees towards insurance. Both the Insurance Court and the High Court held that since the contribution was demanded in respect of the employees who had since long ceased to be the employees working on the premises, no such contribution was leviable from the respondent-company. To arrive at this conclusion, the court gave two reasons. The first was that since the employee in respect of whom contribution was asked had : ceased to work in the premises of the respondent-company, there is no benefit which will now accrue to them by such contribution, and second, the workmen are unidentifiable. 2. We are afraid that the two courts misconceived both the object of the Act and the purpose of the insurance scheme under it. The contribution which is levied on the employer in respect of the employees engaged by him directly or through another agency 1 is for the benefit of all workmen in general who are covered by the Act. The contribution is irrespective of the fact whether the employees get or do not get the said benefit. That is also evident from the definition of insured person given in Section 2(14): of the Act which reads as follows : 2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- (14) insured person means a person who is or was an employee in respect of whom contributions are or were payable under this act and who is, by reason thereof, entitled to any of the benefits provided by this act. : 3. There is thus no quid pro quo between the persons insured and the benefit available under this Act. As regards the finding that the workmen were unidentifiable, what is forgotten is that under the act, once an establishment comes to be covered by the Act. the employer becomes liable to pay the contribution in respect of the employees in his employment directly or indirectly. The contribution which had become payable for the relevant period has to be paid even if the employees concerned are no longer in employment. Whether the employees are unidentifiable today or not is, therefore, irrelevant so long as the contribution was liable to be paid on their behalf, when they were in employment. 4. Shri Sampath, learned Counsel appearing for the appellant raised yet another point before us. He contended that the employees were not the employees of the respondent-company and hence the respondent-company was not liable to pay the contribution. We are afraid that this contention ignores the definition of the employee given in Section 2(9)(ii) of the act which is as follows: 2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- * * * (9) employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work of the factory or establishment or which is preliminary to the work which is ordinarily part of the work carried on in or incidental to the purpose of the factory or establishment; 5. Hence, we find no substance in any of the contentions. A similar point was decided by this is Court in a decision in employees State Insurance Corpn. v. Hotel Kalpaka International. In view of the said decision, there was no scope for any further arguments in the present case. However, we have dealt with the contentions raised for whatever they are worth.
### Response:
1
### Explanation:
2. We are afraid that the two courts misconceived both the object of the Act and the purpose of the insurance scheme under it. The contribution which is levied on the employer in respect of the employees engaged by him directly or through another agency 1 is for the benefit of all workmen in general who are covered by the Act. The contribution is irrespective of the fact whether the employees get or do not get the said benefit. That is also evident from the definition of insured person given in Section 2(14): of the Act which reads as follows :2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-(14) insured person means a person who is or was an employee in respect of whom contributions are or were payable under this act and who is, by reason thereof, entitled to any of the benefits provided by this act. :3. There is thus no quid pro quo between the persons insured and the benefit available under this Act. As regards the finding that the workmen were unidentifiable, what is forgotten is that under the act, once an establishment comes to be covered by the Act. the employer becomes liable to pay the contribution in respect of the employees in his employment directly or indirectly. The contribution which had become payable for the relevant period has to be paid even if the employees concerned are no longer in employment. Whether the employees are unidentifiable today or not is, therefore, irrelevant so long as the contribution was liable to be paid on their behalf, when they were in employment.We are afraid that this contention ignores the definition of the employee given in Section 2(9)(ii) of the act which is as follows:2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-(9) employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work of the factory or establishment or which is preliminary to the work which is ordinarily part of the work carried on in or incidental to the purpose of the factory or establishment;5. Hence, we find no substance in any of the contentions. A similar point was decided by this is Court in a decision in employees State Insurance Corpn. v. Hotel Kalpaka International. In view of the said decision, there was no scope for any further arguments in the present case. However, we have dealt with the contentions raised for whatever they are worth.
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Akhilesh Kumar Singh Vs. State Of Jharkhand | levelled against Shri Kaushal Kumar Singh were almost identical except the charge No.1. According to the learned counsel, but as the purported misconduct committed by him but did not result in any personal gains, the disciplinary authority should have taken a lenient view. Our attention has been drawn to the order of punishment imposed upon the said Shri Kaushal Kumar Singh which is to the following effect : “After going through the statement and show cause present in record and realizing the opinion of Commanding Officer, I accept the opinion of commanding officer and found him guilty with regard to charge (1) absolutely and with regard to charge (2) partially. His illegal absent from 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 and 26.3.85 (totally eight days) will be treated as extraordinary leave. The allowance money which was paid to him of this period shall be deducted from his payable amount and deposited to the fund. Because he had immediately made a complaint against the Company Commander and he was found guilty for this sympathy his increment in annual salary shall be detained for one year. This punishment will not affect his future increment. Simultaneously warning for dismissal is given if it in future.” 9. The learned counsel urged that as a very lenient punishment was awarded to Kaushal Kumar Singh, the High Court must be held to have committed a manifest error in not entertaining the writ petition. Reliance in this behalf has been placed on Director General of Police & Ors. v. G. Dasayan [(1998) 2 SCC 407] and Anand Regional Coop. Oil Seedgrowers’ Union Ltd. v. Shaileshkumar Harshadbhai Shah. [(2006) 6 SCC 548) . 10. Mr. Nitish Massey, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the case of the appellant is not similarly situated to that of the aforesaid Shri Kaushal Kumar Singh as not only no charge like charge No.1 was framed against him, but even the charge No.2 was only proved particularly in his case. The appellate Authority, it was submitted, having given cogent and sufficient reason for not awarding a lesser punishment, this Court should not interfere therewith. 11. Charge No.1 framed against the appellant herein was a serious charge. He has been found guilty thereof. He tampered with the official records. Being only a Writer Constable, he could not have made an entry in the general diary as regards time of arrival of Company Commander. So far as Charge No.2 is concerned, he accepted the same. Charge No.3 was proved against him. The Appellate Authority as also the learned Single Judge, as noticed hereinbefore, opined that the charges levelled against the petitioner were serious in nature.It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly.12. Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that charge No.1 was a very serious one and Shri Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge No.2 had also been partly proved against him; whereas appellant admitted his guilt in relation thereto.The enquiry officer in his report categorically held : “Simultaneously I have gone through attendance register and food allowance register no officer of the company had neither made a signature nor verified it. It is also horrible that on what basis Attendance register and food allowance register had been treated as correct. It is necessary that whenever food allowance claim is being made it should be verified from the register which is not found. Company Commander given the statement that entry regarding Charge sheeter that he was present on 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 in the Company was made by the Charge Sheeter on register by the help of constable 432 Birendera Kumar. Charge Sheeter had not gone any where during that period and he stated in his statement that on that very day he was outside on the oral order of the Company Commander. It is very difficult to decide that whose statement should be treated as correct is of charge sheeter or of Commander. Company Commander is the in charge of the Company. So weightage should be given to his statement. Charge Sheeter certainly made forgery with company Commander because believing on him he made signature.” 13. Appellant has, thus, been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite, would not ordinarily interfere with the quantum of punishment. Even the industrial court would not do so as has been noticed by this Court in Shaileshkumar (supra). In the said case, however, having regard to the fact situation obtaining therein, it was held : “There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme.” The said decision does not assist the appellant at all.14. G. Dayasan (supra) is a case where respondent therein as also the Head Constable were tried together, but as different punishments having been imposed upon them although they faced identical charges, this Court interfered with the quantum of punishment.15. Such is not the case here. Charges against the appellant and Kaushal Kumar Singh being not identical in nature, the impugned judgment does not suffer from any legal infirmity. | 0[ds]11. Charge No.1 framed against the appellant herein was a serious charge. He has been found guilty thereof. He tampered with the official records. Being only a Writer Constable, he could not have made an entry in the general diary as regards time of arrival of Company Commander. So far as Charge No.2 is concerned, he accepted the same. Charge No.3 was proved against him. The Appellate Authority as also the learned Single Judge, as noticed hereinbefore, opined that the charges levelled against the petitioner were serious in nature.It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly.12. Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that charge No.1 was a very serious one and Shri Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge No.2 had also been partly proved against him; whereas appellant admitted his guilt in relation thereto.The enquiry officer in his report categorically heldI have gone through attendance register and food allowance register no officer of the company had neither made a signature nor verified it. It is also horrible that on what basis Attendance register and food allowance register had been treated as correct. It is necessary that whenever food allowance claim is being made it should be verified from the register which is not found. Company Commander given the statement that entry regarding Charge sheeter that he was present on 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 in the Company was made by the Charge Sheeter on register by the help of constable 432 Birendera Kumar. Charge Sheeter had not gone any where during that period and he stated in his statement that on that very day he was outside on the oral order of the Company Commander. It is very difficult to decide that whose statement should be treated as correct is of charge sheeter or of Commander. Company Commander is the in charge of the Company. So weightage should be given to his statement. Charge Sheeter certainly made forgery with company Commander because believing on him he made signature.Appellant has, thus, been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite, would not ordinarily interfere with the quantum of punishment. Even the industrial court would not do so as has been noticed by this Court in Shaileshkumar (supra). In the said case, however, having regard to the fact situation obtaining therein, it was heldis, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirementsaid decision does not assist the appellant at all.14. G. Dayasan (supra) is a case where respondent therein as also the Head Constable were tried together, but as different punishments having been imposed upon them although they faced identical charges, this Court interfered with the quantum of punishment.15. Such is not the case here. Charges against the appellant and Kaushal Kumar Singh being not identical in nature, the impugned judgment does not suffer from any legal infirmity. | 0 | 2,115 | 694 | ### 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:
levelled against Shri Kaushal Kumar Singh were almost identical except the charge No.1. According to the learned counsel, but as the purported misconduct committed by him but did not result in any personal gains, the disciplinary authority should have taken a lenient view. Our attention has been drawn to the order of punishment imposed upon the said Shri Kaushal Kumar Singh which is to the following effect : “After going through the statement and show cause present in record and realizing the opinion of Commanding Officer, I accept the opinion of commanding officer and found him guilty with regard to charge (1) absolutely and with regard to charge (2) partially. His illegal absent from 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 and 26.3.85 (totally eight days) will be treated as extraordinary leave. The allowance money which was paid to him of this period shall be deducted from his payable amount and deposited to the fund. Because he had immediately made a complaint against the Company Commander and he was found guilty for this sympathy his increment in annual salary shall be detained for one year. This punishment will not affect his future increment. Simultaneously warning for dismissal is given if it in future.” 9. The learned counsel urged that as a very lenient punishment was awarded to Kaushal Kumar Singh, the High Court must be held to have committed a manifest error in not entertaining the writ petition. Reliance in this behalf has been placed on Director General of Police & Ors. v. G. Dasayan [(1998) 2 SCC 407] and Anand Regional Coop. Oil Seedgrowers’ Union Ltd. v. Shaileshkumar Harshadbhai Shah. [(2006) 6 SCC 548) . 10. Mr. Nitish Massey, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the case of the appellant is not similarly situated to that of the aforesaid Shri Kaushal Kumar Singh as not only no charge like charge No.1 was framed against him, but even the charge No.2 was only proved particularly in his case. The appellate Authority, it was submitted, having given cogent and sufficient reason for not awarding a lesser punishment, this Court should not interfere therewith. 11. Charge No.1 framed against the appellant herein was a serious charge. He has been found guilty thereof. He tampered with the official records. Being only a Writer Constable, he could not have made an entry in the general diary as regards time of arrival of Company Commander. So far as Charge No.2 is concerned, he accepted the same. Charge No.3 was proved against him. The Appellate Authority as also the learned Single Judge, as noticed hereinbefore, opined that the charges levelled against the petitioner were serious in nature.It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly.12. Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that charge No.1 was a very serious one and Shri Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge No.2 had also been partly proved against him; whereas appellant admitted his guilt in relation thereto.The enquiry officer in his report categorically held : “Simultaneously I have gone through attendance register and food allowance register no officer of the company had neither made a signature nor verified it. It is also horrible that on what basis Attendance register and food allowance register had been treated as correct. It is necessary that whenever food allowance claim is being made it should be verified from the register which is not found. Company Commander given the statement that entry regarding Charge sheeter that he was present on 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 in the Company was made by the Charge Sheeter on register by the help of constable 432 Birendera Kumar. Charge Sheeter had not gone any where during that period and he stated in his statement that on that very day he was outside on the oral order of the Company Commander. It is very difficult to decide that whose statement should be treated as correct is of charge sheeter or of Commander. Company Commander is the in charge of the Company. So weightage should be given to his statement. Charge Sheeter certainly made forgery with company Commander because believing on him he made signature.” 13. Appellant has, thus, been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite, would not ordinarily interfere with the quantum of punishment. Even the industrial court would not do so as has been noticed by this Court in Shaileshkumar (supra). In the said case, however, having regard to the fact situation obtaining therein, it was held : “There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme.” The said decision does not assist the appellant at all.14. G. Dayasan (supra) is a case where respondent therein as also the Head Constable were tried together, but as different punishments having been imposed upon them although they faced identical charges, this Court interfered with the quantum of punishment.15. Such is not the case here. Charges against the appellant and Kaushal Kumar Singh being not identical in nature, the impugned judgment does not suffer from any legal infirmity.
### Response:
0
### Explanation:
11. Charge No.1 framed against the appellant herein was a serious charge. He has been found guilty thereof. He tampered with the official records. Being only a Writer Constable, he could not have made an entry in the general diary as regards time of arrival of Company Commander. So far as Charge No.2 is concerned, he accepted the same. Charge No.3 was proved against him. The Appellate Authority as also the learned Single Judge, as noticed hereinbefore, opined that the charges levelled against the petitioner were serious in nature.It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly.12. Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that charge No.1 was a very serious one and Shri Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge No.2 had also been partly proved against him; whereas appellant admitted his guilt in relation thereto.The enquiry officer in his report categorically heldI have gone through attendance register and food allowance register no officer of the company had neither made a signature nor verified it. It is also horrible that on what basis Attendance register and food allowance register had been treated as correct. It is necessary that whenever food allowance claim is being made it should be verified from the register which is not found. Company Commander given the statement that entry regarding Charge sheeter that he was present on 14.12.84 to 16.12.84 and 9.1.85 to 12.1.85 in the Company was made by the Charge Sheeter on register by the help of constable 432 Birendera Kumar. Charge Sheeter had not gone any where during that period and he stated in his statement that on that very day he was outside on the oral order of the Company Commander. It is very difficult to decide that whose statement should be treated as correct is of charge sheeter or of Commander. Company Commander is the in charge of the Company. So weightage should be given to his statement. Charge Sheeter certainly made forgery with company Commander because believing on him he made signature.Appellant has, thus, been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite, would not ordinarily interfere with the quantum of punishment. Even the industrial court would not do so as has been noticed by this Court in Shaileshkumar (supra). In the said case, however, having regard to the fact situation obtaining therein, it was heldis, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirementsaid decision does not assist the appellant at all.14. G. Dayasan (supra) is a case where respondent therein as also the Head Constable were tried together, but as different punishments having been imposed upon them although they faced identical charges, this Court interfered with the quantum of punishment.15. Such is not the case here. Charges against the appellant and Kaushal Kumar Singh being not identical in nature, the impugned judgment does not suffer from any legal infirmity.
|
K. M. Shanmugam Vs. The S. R. V. S. (P) Ltd. & Ors | marks, he was not given the permits as in the view of the said Authority he was guilty of misconduct. As between the other applicants, the appellant having secured the highest number of marks, he was given a permit. But on appeal the Appellate Tribunal re-allotted the marks and under the re-allotment the appellant got the highest number of marks; and because of that fact and also for the reason that he was a small operator of two buses, who should be given an opportunity to build up a viable unit as quickly as possible, he was given the permit by the appellate Tribunal upholding the order of the Regional Transport Authority. One of the questions raised there was whether the appellant was entitled to marks under Col. 2 for repair and maintenance facilities at Dharapuram the Appellate Tribunal found that he had such facilities. The appellant filed a writ in the High Court and the learned single Judge thought that some mistakes had been committed by the Appellate Tribunal in the allotment of marks and that it acted in contravention of the directions given by the Government under the said G.O., but dismissed the petition on the ground that, as the said instructions are only executive directions, their contravention did not confer any right on the parties before the tribunal on Letters Patent Appeal a Division Bench of that Court set aside that order on the ground that the Appellate Tribunal had taken into consideration the following two irrelevant considerations: (i) the appellants claim should suffer because of the punishment for his past misconduct, and (ii) the third respondent being a small operator, he would be entitled to better consideration than the appellant who was a monopolist. On appeal, this court followed the decision in 1959 Supp (2) SCR 227: (AIR 1959 SC 694 ) and AIR 1959 SC 896 and held that under the said G. O. the Government issued only administrative directions and that the failure of the Transport authorities to follow them would not entitle the respondents to a writ. As regards the two reasons given by the High Court, this Court came to the conclusion that they were not irrelevant consideration, but were considerations germane in the matter of issue of permits.In the result this Court allowed the appeal. This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ. But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal.14. The last of the cases relied upon is that in Sankara Ayyer v. Narayanswami Naidu, Civil Appeal No. 213 of 1960 D/- 10-10-1960 (SC). There too, the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for a new route on the basis of the administrative directions given by the State Government. The Regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator. A single Judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators. But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal. This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant considerations in the matter of issue of permits. It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view.15. It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under S. 43A of the Motor Vehicles Act were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under Art. 226 of the Constitution. In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant under S. 47 of the Act. They are not authorities on the question whether a writ of certioraris would lie where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under S. 47 of the Act, whether or not it was covered by the instructions given under S. 43A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question any the less a relevant consideration under S. 47 of the Act.16. That is the position in the present case. As we have already indicated on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the "out in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits. | 0[ds]In the result this Court allowed the appeal. This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ. But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal.14. The last of the cases relied upon is that in Sankara Ayyer v. Narayanswami Naidu, Civil Appeal No. 213 of 1960 D/- 10-10-1960 (SC). There too, the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for a new route on the basis of the administrative directions given by the State Government. The Regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator. A single Judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators. But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal. This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant considerations in the matter of issue of permits. It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view.15. It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under S. 43A of the Motor Vehicles Act were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under Art. 226 of the Constitution. In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant under S. 47 of the Act. They are not authorities on the question whether a writ of certioraris would lie where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under S. 47 of the Act, whether or not it was covered by the instructions given under S. 43A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question any the less a relevant consideration under S. 47 of the Act.16. That is the position in the present case. As we have already indicated on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the "out in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits. | 0 | 6,554 | 676 | ### 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:
marks, he was not given the permits as in the view of the said Authority he was guilty of misconduct. As between the other applicants, the appellant having secured the highest number of marks, he was given a permit. But on appeal the Appellate Tribunal re-allotted the marks and under the re-allotment the appellant got the highest number of marks; and because of that fact and also for the reason that he was a small operator of two buses, who should be given an opportunity to build up a viable unit as quickly as possible, he was given the permit by the appellate Tribunal upholding the order of the Regional Transport Authority. One of the questions raised there was whether the appellant was entitled to marks under Col. 2 for repair and maintenance facilities at Dharapuram the Appellate Tribunal found that he had such facilities. The appellant filed a writ in the High Court and the learned single Judge thought that some mistakes had been committed by the Appellate Tribunal in the allotment of marks and that it acted in contravention of the directions given by the Government under the said G.O., but dismissed the petition on the ground that, as the said instructions are only executive directions, their contravention did not confer any right on the parties before the tribunal on Letters Patent Appeal a Division Bench of that Court set aside that order on the ground that the Appellate Tribunal had taken into consideration the following two irrelevant considerations: (i) the appellants claim should suffer because of the punishment for his past misconduct, and (ii) the third respondent being a small operator, he would be entitled to better consideration than the appellant who was a monopolist. On appeal, this court followed the decision in 1959 Supp (2) SCR 227: (AIR 1959 SC 694 ) and AIR 1959 SC 896 and held that under the said G. O. the Government issued only administrative directions and that the failure of the Transport authorities to follow them would not entitle the respondents to a writ. As regards the two reasons given by the High Court, this Court came to the conclusion that they were not irrelevant consideration, but were considerations germane in the matter of issue of permits.In the result this Court allowed the appeal. This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ. But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal.14. The last of the cases relied upon is that in Sankara Ayyer v. Narayanswami Naidu, Civil Appeal No. 213 of 1960 D/- 10-10-1960 (SC). There too, the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for a new route on the basis of the administrative directions given by the State Government. The Regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator. A single Judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators. But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal. This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant considerations in the matter of issue of permits. It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view.15. It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under S. 43A of the Motor Vehicles Act were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under Art. 226 of the Constitution. In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant under S. 47 of the Act. They are not authorities on the question whether a writ of certioraris would lie where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under S. 47 of the Act, whether or not it was covered by the instructions given under S. 43A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question any the less a relevant consideration under S. 47 of the Act.16. That is the position in the present case. As we have already indicated on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the "out in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits.
### Response:
0
### Explanation:
In the result this Court allowed the appeal. This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ. But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal.14. The last of the cases relied upon is that in Sankara Ayyer v. Narayanswami Naidu, Civil Appeal No. 213 of 1960 D/- 10-10-1960 (SC). There too, the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for a new route on the basis of the administrative directions given by the State Government. The Regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator. A single Judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators. But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal. This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant considerations in the matter of issue of permits. It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view.15. It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under S. 43A of the Motor Vehicles Act were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under Art. 226 of the Constitution. In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant under S. 47 of the Act. They are not authorities on the question whether a writ of certioraris would lie where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under S. 47 of the Act, whether or not it was covered by the instructions given under S. 43A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question any the less a relevant consideration under S. 47 of the Act.16. That is the position in the present case. As we have already indicated on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the "out in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits.
|
THE STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE Vs. TR. N. SEENIVASAGAN | , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) 8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original) 15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below: It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case. … It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction. It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court. It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO. … It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case. 16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order. | 1[ds]13. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.14. In Manju Devi v State of Rajasthan (2019) 6 SCC 203 , a two-Judge bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness. Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 ; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] . In Natasha Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15)8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original)15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below:It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case.It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction.It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court.It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO.It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case.16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order. | 1 | 2,933 | 1,612 | ### 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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, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) 8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original) 15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below: It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case. … It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction. It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court. It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO. … It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case. 16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order.
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v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15)8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original)15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below:It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case.It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction.It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court.It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO.It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case.16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order.
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M/S. Shakthi Seeds Pvt. Ltd Vs. Dy. Commnr. (Ct) | that the department could not have required the appellant-dealer to produce evidence as regards accuracy or veracity of the declaration regarding the labelling. 3. In support of the appeal, learned counsel for the appellant reiterated its stand before the High Court. 4. Learned counsel for the respondent on the other hand supported the findings of the authorities, Tribunal and the High Court. 5. The reasoning of the Tribunal related to certified and truthfully labelled seeds reads as follows: "Regarding treatment with fungicides, it has to be stated that not all fungicides treated are certified and truthfully labelled seeds. Because, even ordinary and high quality pure seeds are also treated with fungicides by some persons to prevent loss of seeds and future seedlings from such seeds because of the fungal infection of the said seeds of the seeding purpose. Besides there is prohibition to use the said treated seeds for edible purpose also after certain periods after which there is no residual effect of such fungicides." 6. In reply to the show cause notice issued the appellant had clarified its stand as follows: "In this regard, we would like to bring to your kind notice, that we have purchased processed chilli seed, Paddy seed and Sunflower seed from farmers, and not chillies, paddy or sunflower commodities. The above cited seeds namely Chillis seed, paddy seed and Sunflower seed have been processed, treated with fungicides and packed by us using packing material and sold under our brand name of "Shakthi" as truthfully labelled seeds. Moreover the said seeds were meant for agricultural purpose only and not for food, feed or oil purpose, since they were treated with fungicides. All seeds are first purchased only from the farmers who are unregistered dealers." 7. There was no consideration of these aspects as apparently the High Court has lost sight of the substance of the clarification. 8. The G.O.Ms. No. 604 dated 9.4.1981 reads as follows: "In exercise of powers conferred by sub-section (1) of Section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (A.P. Act 6 of 1957) the Governor of Andhra Pradesh hereby exempts from the Tax payable under the said Act the sales or purchases of all varieties of certified and truthfully labelled seeds for agricultural purposes. Sales of certified and truthfully labelled seeds in the course of inter-State trade of Commerce Exemption from CST". 9. The Clarification Memorandum No. 13630/CT-II(2)/89-19 dated 26.4.1994 reads as follows: "In the G.O.Ms. No. 604 Revenue (s) Department dated 9.4.81, the Government issued orders exempting from the tax payable under the A.P.G.S.T. Act the Sales or Purchases of all varieties of certified and truthfully labelled seeds for agricultural purposes. In the G.O. second read above, a similar order was issued under the C.S.T. Act in respect of the above goods sold in the course of inter-state trade also. The A.P. Seed Growers Merchants and Nurserymen Association, Hyderabad, National Seeds Corporation, New Delhi and Peddireddy Thimmaredy Farm Foundation, Hyderabad have now represented to the Government that even though the exemption granted in the above G.Os. are applicable to both the categories of seeds viz. certified seeds and or truthfully labelled seeds some of the assessing authorities are insisting that the seeds should be certified as well as truthfully labelled to become eligible for grant of exemption. Hence they requested the Government to issue clarification in the matter to remove the ambiguity. The Government has examined the matter in consultation with the Agriculture and Co-operation Department and they hereby clarify that both "certified seeds and/or truthfully labelled seeds" are exempt from tax as per the orders issued in G.O.Ms.No.604 Revenue (s) Department dated 9.4.81 and G.O.Ms.No.129 Revenue (CT-II) Department dated 14.2.89 as they are two types of seeds sold for Agricultural purposes." 10. Rule 7 of the Seeds Rules, 1968 (in short the Rules) reads as follows: "Rule 7. Responsibility for marking or labeling - When seed of a notified kind or variety is offered for sale under Sec.7 each container shall be marked or labelled in the manner hereinafter specified. The person whose name appears on the mark or label shall be responsible for the accuracy of the information required to appear on the mark or label so long as seed is contained in the unopened original container:Provided, however, that such person shall not be responsible for the accuracy of the statement appearing on the mark or label if the seed is removed from the original unopened container, or he shall not be responsible for the accuracy of the germination statement beyond the date of validity indicated on the mark or label". 11. The Clarification Memorandum dated 26.4.1994 clarified that two alternatives are available i.e. either certified or truthfully labelled. Certified seeds is defined in Section 9 of the Seeds Act, 1966 (in short the Seeds Act). Reference in this context also may be made to the Rule 2(e) of the Rules dealing with certified seeds. 12. Learned counsel for the appellant conceded that there was no claim by the appellant about sale of certified seeds. Rule 7 deals with marking or labelling. 13. It appears that Tribunal proceeded on the basis that the seeds were required to be certified and truthfully labelled for the purpose of eligibility for exemption. In reality, as clearly stated in the clarificatory memorandum they are alternatives.14. The High Court also proceeded on the same basis overlooking the clarificatory memorandum15. In the circumstances, it would be appropriate for the Tribunal to examine the factual aspect, keeping in view the clarificatory memorandum providing alternatives. The parties shall be free to lead fresh evidence. The appellant shall produce evidence to show that the seeds were truthfully labelled. It cannot be said that the authorities cannot require the dealer to satisfy the requirement that the seeds were truthfully labelled. There is no such blanket protection. In order to be satisfied about the acceptability of the claim, they can require the assessee to justify the claim and that it is entitled to the exemption. | 1[ds]13. It appears that Tribunal proceeded on the basis that the seeds were required to be certified and truthfully labelled for the purpose of eligibility for exemption. In reality, as clearly stated in the clarificatory memorandum they are alternatives.14. The High Court also proceeded on the same basis overlooking the clarificatory memorandum15. In the circumstances, it would be appropriate for the Tribunal to examine the factual aspect, keeping in view the clarificatory memorandum providing alternatives. The parties shall be free to lead fresh evidence. The appellant shall produce evidence to show that the seeds were truthfully labelled. It cannot be said that the authorities cannot require the dealer to satisfy the requirement that the seeds were truthfully labelled. There is no such blanket protection. In order to be satisfied about the acceptability of the claim, they can require the assessee to justify the claim and that it is entitled to the exemption. | 1 | 1,761 | 172 | ### 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:
that the department could not have required the appellant-dealer to produce evidence as regards accuracy or veracity of the declaration regarding the labelling. 3. In support of the appeal, learned counsel for the appellant reiterated its stand before the High Court. 4. Learned counsel for the respondent on the other hand supported the findings of the authorities, Tribunal and the High Court. 5. The reasoning of the Tribunal related to certified and truthfully labelled seeds reads as follows: "Regarding treatment with fungicides, it has to be stated that not all fungicides treated are certified and truthfully labelled seeds. Because, even ordinary and high quality pure seeds are also treated with fungicides by some persons to prevent loss of seeds and future seedlings from such seeds because of the fungal infection of the said seeds of the seeding purpose. Besides there is prohibition to use the said treated seeds for edible purpose also after certain periods after which there is no residual effect of such fungicides." 6. In reply to the show cause notice issued the appellant had clarified its stand as follows: "In this regard, we would like to bring to your kind notice, that we have purchased processed chilli seed, Paddy seed and Sunflower seed from farmers, and not chillies, paddy or sunflower commodities. The above cited seeds namely Chillis seed, paddy seed and Sunflower seed have been processed, treated with fungicides and packed by us using packing material and sold under our brand name of "Shakthi" as truthfully labelled seeds. Moreover the said seeds were meant for agricultural purpose only and not for food, feed or oil purpose, since they were treated with fungicides. All seeds are first purchased only from the farmers who are unregistered dealers." 7. There was no consideration of these aspects as apparently the High Court has lost sight of the substance of the clarification. 8. The G.O.Ms. No. 604 dated 9.4.1981 reads as follows: "In exercise of powers conferred by sub-section (1) of Section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (A.P. Act 6 of 1957) the Governor of Andhra Pradesh hereby exempts from the Tax payable under the said Act the sales or purchases of all varieties of certified and truthfully labelled seeds for agricultural purposes. Sales of certified and truthfully labelled seeds in the course of inter-State trade of Commerce Exemption from CST". 9. The Clarification Memorandum No. 13630/CT-II(2)/89-19 dated 26.4.1994 reads as follows: "In the G.O.Ms. No. 604 Revenue (s) Department dated 9.4.81, the Government issued orders exempting from the tax payable under the A.P.G.S.T. Act the Sales or Purchases of all varieties of certified and truthfully labelled seeds for agricultural purposes. In the G.O. second read above, a similar order was issued under the C.S.T. Act in respect of the above goods sold in the course of inter-state trade also. The A.P. Seed Growers Merchants and Nurserymen Association, Hyderabad, National Seeds Corporation, New Delhi and Peddireddy Thimmaredy Farm Foundation, Hyderabad have now represented to the Government that even though the exemption granted in the above G.Os. are applicable to both the categories of seeds viz. certified seeds and or truthfully labelled seeds some of the assessing authorities are insisting that the seeds should be certified as well as truthfully labelled to become eligible for grant of exemption. Hence they requested the Government to issue clarification in the matter to remove the ambiguity. The Government has examined the matter in consultation with the Agriculture and Co-operation Department and they hereby clarify that both "certified seeds and/or truthfully labelled seeds" are exempt from tax as per the orders issued in G.O.Ms.No.604 Revenue (s) Department dated 9.4.81 and G.O.Ms.No.129 Revenue (CT-II) Department dated 14.2.89 as they are two types of seeds sold for Agricultural purposes." 10. Rule 7 of the Seeds Rules, 1968 (in short the Rules) reads as follows: "Rule 7. Responsibility for marking or labeling - When seed of a notified kind or variety is offered for sale under Sec.7 each container shall be marked or labelled in the manner hereinafter specified. The person whose name appears on the mark or label shall be responsible for the accuracy of the information required to appear on the mark or label so long as seed is contained in the unopened original container:Provided, however, that such person shall not be responsible for the accuracy of the statement appearing on the mark or label if the seed is removed from the original unopened container, or he shall not be responsible for the accuracy of the germination statement beyond the date of validity indicated on the mark or label". 11. The Clarification Memorandum dated 26.4.1994 clarified that two alternatives are available i.e. either certified or truthfully labelled. Certified seeds is defined in Section 9 of the Seeds Act, 1966 (in short the Seeds Act). Reference in this context also may be made to the Rule 2(e) of the Rules dealing with certified seeds. 12. Learned counsel for the appellant conceded that there was no claim by the appellant about sale of certified seeds. Rule 7 deals with marking or labelling. 13. It appears that Tribunal proceeded on the basis that the seeds were required to be certified and truthfully labelled for the purpose of eligibility for exemption. In reality, as clearly stated in the clarificatory memorandum they are alternatives.14. The High Court also proceeded on the same basis overlooking the clarificatory memorandum15. In the circumstances, it would be appropriate for the Tribunal to examine the factual aspect, keeping in view the clarificatory memorandum providing alternatives. The parties shall be free to lead fresh evidence. The appellant shall produce evidence to show that the seeds were truthfully labelled. It cannot be said that the authorities cannot require the dealer to satisfy the requirement that the seeds were truthfully labelled. There is no such blanket protection. In order to be satisfied about the acceptability of the claim, they can require the assessee to justify the claim and that it is entitled to the exemption.
### Response:
1
### Explanation:
13. It appears that Tribunal proceeded on the basis that the seeds were required to be certified and truthfully labelled for the purpose of eligibility for exemption. In reality, as clearly stated in the clarificatory memorandum they are alternatives.14. The High Court also proceeded on the same basis overlooking the clarificatory memorandum15. In the circumstances, it would be appropriate for the Tribunal to examine the factual aspect, keeping in view the clarificatory memorandum providing alternatives. The parties shall be free to lead fresh evidence. The appellant shall produce evidence to show that the seeds were truthfully labelled. It cannot be said that the authorities cannot require the dealer to satisfy the requirement that the seeds were truthfully labelled. There is no such blanket protection. In order to be satisfied about the acceptability of the claim, they can require the assessee to justify the claim and that it is entitled to the exemption.
|
Bharat Petroleum Corporation Ltd Vs. Maharashtra General Kamgar Union | 518, and Ahmadi, J. (as he then was) in the context of Section 22(ii) of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971, as also in the context of domestic enquiry, upheld the statutory restrictions imposed on delinquents choice of representation in the domestic enquiry through an agent. It was laid down as under : "11. A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on the rule of natural justice. He may, therefore, fell that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of ones choice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Representation through counsel can be restricted by law as for example, Section 36 of the Industrial Disputes Act, 1947, and so also by certified Standing Orders. In the present case the Standing Orders permitted an employee to be represented by a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute." 25. The earlier decision in Kalindi and others v. Tata Locomotive and Engineering Co. Ltd. (supra); Dunlop Rubber Co. v. Workmen (supra) and Brooke Bond India (P) Ltd. v. Subba Raman (S.) and another, 1961(2) LLJ 417, were followed and it was held that the law in this country does not concede an absolute right of representation to an employee as part of his right to be heard. It was further specified that there is no right to representation as such unless the Company, by its Standing Orders, recognises such a right. In this case, it was also laid down that a delinquent employee has no right to be represented in the departmental proceedings by a lawyer unless the facts involved in the disciplinary proceedings were of a complex nature in which case the assistance of a lawyer could be permitted. 26. We have seriously perused the judgment of the High Court which, curiously, has treated the decision of this Court in Crescent Dves and Chemicals Ltd.s case (supra) as a decision in favour of the respondent No. 1. The process of reasoning by which this decision has been held to be in favour of respondent No. 1 for coming to the conclusion that he had a right to be represented by a person who, though an office-bearer of the Trade Union, was not an employee of the appellant is absolutely incorrect and we are not prepared to subscribe to this view. Consequently, we are of the opinion that the judgment passed by the High Court in so far as it purports to quash the order of the Appellate Authority, by which the Draft Standing Orders were Certified, cannot be sustained. 27. The contention of the learned counsel for Respondent No. 1 that the Standing Orders made by the appellant must conform to the Model Standing Orders cannot be accepted. It is true that originally the jurisdiction of the Certifying Officer as also that of the Appellate Authority was very limited and the only jurisdiction available to them under the Act was to see whether the Standing Orders made by the Establishment and submitted for their certification conformed to the Model Standing Orders. This required the process of comparison of the Draft Standing Orders with the Model Standing Orders and on comparison if it was found that the Draft Standing Orders were conformity with the Model Standing Orders, the same would be certified even if they were not reasonable or fair. The workmen practically had no say in the matter and they would not be listened even if they agitated that the Draft Standing Orders were not fair or reasonable. 28. In 1956, radical changes were introduced in the Act the Parliament as a result of which not only the scope of the Act was widened, but jurisdiction was also conferred upon the Certifying Officer as also the Appellate Authority to adjudicate upon and decide the question relating to fairness or reasonableness of any provision of the Standing Orders. 29. In the instant case, the Standing Orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair. 30. Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not be disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a co-employee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co-employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant. | 1[ds]29. In the instant case, the Standing Orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair.Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not be disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be aof the same establishment in which the delinquent is employed. There appears to be some logic behind this as awould be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant. | 1 | 5,046 | 296 | ### 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:
518, and Ahmadi, J. (as he then was) in the context of Section 22(ii) of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971, as also in the context of domestic enquiry, upheld the statutory restrictions imposed on delinquents choice of representation in the domestic enquiry through an agent. It was laid down as under : "11. A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on the rule of natural justice. He may, therefore, fell that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of ones choice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Representation through counsel can be restricted by law as for example, Section 36 of the Industrial Disputes Act, 1947, and so also by certified Standing Orders. In the present case the Standing Orders permitted an employee to be represented by a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute." 25. The earlier decision in Kalindi and others v. Tata Locomotive and Engineering Co. Ltd. (supra); Dunlop Rubber Co. v. Workmen (supra) and Brooke Bond India (P) Ltd. v. Subba Raman (S.) and another, 1961(2) LLJ 417, were followed and it was held that the law in this country does not concede an absolute right of representation to an employee as part of his right to be heard. It was further specified that there is no right to representation as such unless the Company, by its Standing Orders, recognises such a right. In this case, it was also laid down that a delinquent employee has no right to be represented in the departmental proceedings by a lawyer unless the facts involved in the disciplinary proceedings were of a complex nature in which case the assistance of a lawyer could be permitted. 26. We have seriously perused the judgment of the High Court which, curiously, has treated the decision of this Court in Crescent Dves and Chemicals Ltd.s case (supra) as a decision in favour of the respondent No. 1. The process of reasoning by which this decision has been held to be in favour of respondent No. 1 for coming to the conclusion that he had a right to be represented by a person who, though an office-bearer of the Trade Union, was not an employee of the appellant is absolutely incorrect and we are not prepared to subscribe to this view. Consequently, we are of the opinion that the judgment passed by the High Court in so far as it purports to quash the order of the Appellate Authority, by which the Draft Standing Orders were Certified, cannot be sustained. 27. The contention of the learned counsel for Respondent No. 1 that the Standing Orders made by the appellant must conform to the Model Standing Orders cannot be accepted. It is true that originally the jurisdiction of the Certifying Officer as also that of the Appellate Authority was very limited and the only jurisdiction available to them under the Act was to see whether the Standing Orders made by the Establishment and submitted for their certification conformed to the Model Standing Orders. This required the process of comparison of the Draft Standing Orders with the Model Standing Orders and on comparison if it was found that the Draft Standing Orders were conformity with the Model Standing Orders, the same would be certified even if they were not reasonable or fair. The workmen practically had no say in the matter and they would not be listened even if they agitated that the Draft Standing Orders were not fair or reasonable. 28. In 1956, radical changes were introduced in the Act the Parliament as a result of which not only the scope of the Act was widened, but jurisdiction was also conferred upon the Certifying Officer as also the Appellate Authority to adjudicate upon and decide the question relating to fairness or reasonableness of any provision of the Standing Orders. 29. In the instant case, the Standing Orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair. 30. Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not be disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a co-employee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co-employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant.
### Response:
1
### Explanation:
29. In the instant case, the Standing Orders as finally certified cannot be said either to be not in consonance with the Model Standing Orders or unreasonable or unfair.Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this rule of representation has not be disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be aof the same establishment in which the delinquent is employed. There appears to be some logic behind this as awould be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate Authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant.
|
Rallis India Ltd Vs. Poduru Vidya Bhusan | Criminal Complaint, we are of the considered opinion that sufficient averments have been made against the Respondents that they were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm. This averment has been specifically mentioned by the Appellant in the complaint even though denied by the Respondents but the burden of proof that at the relevant point of time they were not the partners, lies specifically on them. This onus is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, in our opinion, they cannot be discharged of their liability. Consequently, High Court committed an error in discharging them. Also, at the cost of repetition, by virtue of their own submissions before the High Court (reproduced in Para 6 above), the Respondents have admitted the fact that the Appellant had referred to them in their capacity as partners who were incharge of the affairs of the firm in the initial complaints. The question as to whether or not they were partners in the firm as on 31.03.2004, is one of fact, which has to be established in trial. The initial burden by way of averment in the complaint has been made by the Appellant. 12. The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, proviso to Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his knowledge or he had exercised due diligence to prevent the commission of such offence, he will not be liable of punishment. Needless to say, final judgment and order would depend on the evidence adduced. Criminal liability is attracted only on those, who at the time of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners "qua" the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced - if they are eventually found to be not guilty, as a necessary consequence thereof would be acquitted. 13. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless parties are given opportunity to lead evidence, it is not possible to come to definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the Respondents ceased to be the partners of the firm. 14. Before concluding the present discussion, we also take this opportunity to strike a cautionary note with regard to the manner in which High Courts ought to exercise their power to quash criminal proceedings when such proceeding is related to offences committed by companies. The world of commercial transactions contains numerous unique intricacies, many of which are yet to be statutorily regulated. More particularly, the principle laid down in Section 141 of the Act (which is pari materia with identical sections in other Acts like the Food Safety and Standards Act, the erstwhile Prevention of Food Adulteration Act etc. etc.) is susceptible to abuse by unscrupulous companies to the detriment of unsuspecting third parties. In the present case, there are several disputed facts involved - for instance, the date when the partnership came into being, who were the initial partners, if and when the Respondents had actually retired from the partnership firm etc.15. Strictly speaking, the ratio of the SMS Pharmaceuticals (supra) can be followed only, after the factum that accused were the Directors or Partners of a Company or Firm respectively at the relevant point of time, stands fully established. However, in cases like the present, where there are allegations and counter-allegations between the parties regarding the very composition of the firm, the above rule of `specific averment must be broadly construed. Indeed, it would be nothing short of a travesty of justice if the Directors of a Company of Partners of a Firm, who, having duped a third-party by producing false documents (like a fake partnership deed) or making false statements (that some others were in charge of the Company/Firm), at a subsequent stage, seek protection from prosecution on the ground that they were not directly indicted in the complaint - such a proposition strikes against one of the very basic tenets of the law of natural justice, which is, that none shall be allowed to take advantage of his own default. Of course, the above observation is of a general nature, and has no bearing on the present case, but nonetheless, the power to quash a criminal proceeding with respect to an offence under Section 141 of the Act, must be exercised keeping this advisory note and caveat in mind.16. On account of foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by learned Single Judge exercising the jurisdiction conferred on him under Section 482 of the Cr.P.C. cannot be sustained in law. The same are hereby set aside and quashed. The trial court is directed to dispose of the Criminal complaints filed by Appellant at an early date, after giving opportunity of hearing to both sides, in accordance with law. However, the Trial Court would not be influenced by any of the observations made hereinabove and would decide the matters in accordance with law. 17. | 1[ds]14. Before concluding the present discussion, we also take this opportunity to strike a cautionary note with regard to the manner in which High Courts ought to exercise their power to quash criminal proceedings when such proceeding is related to offences committed by companies. The world of commercial transactions contains numerous unique intricacies, many of which are yet to be statutorily regulated. More particularly, the principle laid down in Section 141 of the Act (which is pari materia with identical sections in other Acts like the Food Safety and Standards Act, the erstwhile Prevention of Food Adulteration Act etc. etc.) is susceptible to abuse by unscrupulous companies to the detriment of unsuspecting third parties. In the present case, there are several disputed facts involved - for instance, the date when the partnership came into being, who were the initial partners, if and when the Respondents had actually retired from the partnership firm etc.15. Strictly speaking, the ratio of the SMS Pharmaceuticals (supra) can be followed only, after the factum that accused were the Directors or Partners of a Company or Firm respectively at the relevant point of time, stands fully established. However, in cases like the present, where there are allegations and counter-allegations between the parties regarding the very composition of the firm, the above rule of `specific averment must be broadly construed. Indeed, it would be nothing short of a travesty of justice if the Directors of a Company of Partners of a Firm, who, having duped a third-party by producing false documents (like a fake partnership deed) or making false statements (that some others were in charge of the Company/Firm), at a subsequent stage, seek protection from prosecution on the ground that they were not directly indicted in the complaint - such a proposition strikes against one of the very basic tenets of the law of natural justice, which is, that none shall be allowed to take advantage of his own default. Of course, the above observation is of a general nature, and has no bearing on the present case, but nonetheless, the power to quash a criminal proceeding with respect to an offence under Section 141 of the Act, must be exercised keeping this advisory note and caveat in mind.16. On account of foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by learned Single Judge exercising the jurisdiction conferred on him under Section 482 of the Cr.P.C. cannot be sustained in law. The same are hereby set aside and quashed. The trial court is directed to dispose of the Criminal complaints filed by Appellant at an early date, after giving opportunity of hearing to both sides, in accordance with law. However, the Trial Court would not be influenced by any of the observations made hereinabove and would decide the matters in accordance with law. | 1 | 2,150 | 534 | ### 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:
Criminal Complaint, we are of the considered opinion that sufficient averments have been made against the Respondents that they were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm. This averment has been specifically mentioned by the Appellant in the complaint even though denied by the Respondents but the burden of proof that at the relevant point of time they were not the partners, lies specifically on them. This onus is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, in our opinion, they cannot be discharged of their liability. Consequently, High Court committed an error in discharging them. Also, at the cost of repetition, by virtue of their own submissions before the High Court (reproduced in Para 6 above), the Respondents have admitted the fact that the Appellant had referred to them in their capacity as partners who were incharge of the affairs of the firm in the initial complaints. The question as to whether or not they were partners in the firm as on 31.03.2004, is one of fact, which has to be established in trial. The initial burden by way of averment in the complaint has been made by the Appellant. 12. The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, proviso to Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his knowledge or he had exercised due diligence to prevent the commission of such offence, he will not be liable of punishment. Needless to say, final judgment and order would depend on the evidence adduced. Criminal liability is attracted only on those, who at the time of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners "qua" the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced - if they are eventually found to be not guilty, as a necessary consequence thereof would be acquitted. 13. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless parties are given opportunity to lead evidence, it is not possible to come to definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the Respondents ceased to be the partners of the firm. 14. Before concluding the present discussion, we also take this opportunity to strike a cautionary note with regard to the manner in which High Courts ought to exercise their power to quash criminal proceedings when such proceeding is related to offences committed by companies. The world of commercial transactions contains numerous unique intricacies, many of which are yet to be statutorily regulated. More particularly, the principle laid down in Section 141 of the Act (which is pari materia with identical sections in other Acts like the Food Safety and Standards Act, the erstwhile Prevention of Food Adulteration Act etc. etc.) is susceptible to abuse by unscrupulous companies to the detriment of unsuspecting third parties. In the present case, there are several disputed facts involved - for instance, the date when the partnership came into being, who were the initial partners, if and when the Respondents had actually retired from the partnership firm etc.15. Strictly speaking, the ratio of the SMS Pharmaceuticals (supra) can be followed only, after the factum that accused were the Directors or Partners of a Company or Firm respectively at the relevant point of time, stands fully established. However, in cases like the present, where there are allegations and counter-allegations between the parties regarding the very composition of the firm, the above rule of `specific averment must be broadly construed. Indeed, it would be nothing short of a travesty of justice if the Directors of a Company of Partners of a Firm, who, having duped a third-party by producing false documents (like a fake partnership deed) or making false statements (that some others were in charge of the Company/Firm), at a subsequent stage, seek protection from prosecution on the ground that they were not directly indicted in the complaint - such a proposition strikes against one of the very basic tenets of the law of natural justice, which is, that none shall be allowed to take advantage of his own default. Of course, the above observation is of a general nature, and has no bearing on the present case, but nonetheless, the power to quash a criminal proceeding with respect to an offence under Section 141 of the Act, must be exercised keeping this advisory note and caveat in mind.16. On account of foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by learned Single Judge exercising the jurisdiction conferred on him under Section 482 of the Cr.P.C. cannot be sustained in law. The same are hereby set aside and quashed. The trial court is directed to dispose of the Criminal complaints filed by Appellant at an early date, after giving opportunity of hearing to both sides, in accordance with law. However, the Trial Court would not be influenced by any of the observations made hereinabove and would decide the matters in accordance with law. 17.
### Response:
1
### Explanation:
14. Before concluding the present discussion, we also take this opportunity to strike a cautionary note with regard to the manner in which High Courts ought to exercise their power to quash criminal proceedings when such proceeding is related to offences committed by companies. The world of commercial transactions contains numerous unique intricacies, many of which are yet to be statutorily regulated. More particularly, the principle laid down in Section 141 of the Act (which is pari materia with identical sections in other Acts like the Food Safety and Standards Act, the erstwhile Prevention of Food Adulteration Act etc. etc.) is susceptible to abuse by unscrupulous companies to the detriment of unsuspecting third parties. In the present case, there are several disputed facts involved - for instance, the date when the partnership came into being, who were the initial partners, if and when the Respondents had actually retired from the partnership firm etc.15. Strictly speaking, the ratio of the SMS Pharmaceuticals (supra) can be followed only, after the factum that accused were the Directors or Partners of a Company or Firm respectively at the relevant point of time, stands fully established. However, in cases like the present, where there are allegations and counter-allegations between the parties regarding the very composition of the firm, the above rule of `specific averment must be broadly construed. Indeed, it would be nothing short of a travesty of justice if the Directors of a Company of Partners of a Firm, who, having duped a third-party by producing false documents (like a fake partnership deed) or making false statements (that some others were in charge of the Company/Firm), at a subsequent stage, seek protection from prosecution on the ground that they were not directly indicted in the complaint - such a proposition strikes against one of the very basic tenets of the law of natural justice, which is, that none shall be allowed to take advantage of his own default. Of course, the above observation is of a general nature, and has no bearing on the present case, but nonetheless, the power to quash a criminal proceeding with respect to an offence under Section 141 of the Act, must be exercised keeping this advisory note and caveat in mind.16. On account of foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by learned Single Judge exercising the jurisdiction conferred on him under Section 482 of the Cr.P.C. cannot be sustained in law. The same are hereby set aside and quashed. The trial court is directed to dispose of the Criminal complaints filed by Appellant at an early date, after giving opportunity of hearing to both sides, in accordance with law. However, the Trial Court would not be influenced by any of the observations made hereinabove and would decide the matters in accordance with law.
|
Union Of India Vs. Mahindra & Mahindra Ltd | of the scheme. The new scheme was merely more comprehensive and the language employed more precise and definite. As in the old Section 4, the terms in which the value was defined remained the price charged by the Assessee in the course of wholesale trade for delivery at the time and place of removal. Under the new Section 4 the phrase "place of removal" was defined by Section 4(b) not merely as "the factory or any other place or premises of production or manufacture of the excisable goods" from where such goods are removed but was extended to "a warehouse or any place or premises wherein the excisable goods have been permitted to be deposited without payment of duty" and from where such goods are removed. The judicial construction of the provisions of the old Section 4 had already declared that the price envisaged under Clauses (a) and (b) of that section was the price charged by the manufacturer in a transaction at arms length. After referring to several cases, some of which have already been mentioned here earlier, this Court pointed out in Voltas Limited, (1973) 3 SCC 503 :"the wholesale cash price has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyer to whom a specially low price is charged because of extra-commercial considerations, e.g., because he is a relative of the manufacturer, the price charged for those sales would not be the wholesale cash price for levying excise Under Section 4(a) of the Act. A sole distributor might or might not be a favoured buyer according as terms of the agreement with him are fair and reasonable and were arrived at on purely commercial basis.34. Both learned Counsel for the Assessees and the learned Solicitor General for the Revenue are agreed that in enacting the new Section 4 Parliament did not intend to bring into existence a scheme of valuation different from that embodied in the old Section 4. Reference was made in that connection to the Statement of Objects and Reasons. The difference, however, lies in this that while learned Counsel for the Assessee attempted to show by reference to the old Section 4 that the legislative intent was to confine the value of an excisable article to the manufacturing cost and manufacturing profit and that therefore the same limitations should be read into the new Section 4, the learned Solicitor-General approached the problem from the other end and contended that since on a plain reading of the new Section 4 the price actually charged by the Assessee was the true criterion and was not limited to the manufacturing cost and manufacturing profit, it is that construction which should be put also on the old Section 4. We have earlier indicated our inability to accept the proposition that the old Section 4 defined the value of an excisable article in terms of the manufacturing cost and manufacturing profit exclusively. We find from an examination of the provisions of the new Section 4 that a similar conclusion must follow. The normal price mentioned in the new Section 4(1)(a) is the price at which the goods are ordinarily sold by the Assessee in the course of wholesale trade. It is the wholesale price charged by him. It is a price which may vary, according to the first proviso to the new Section 4(1)(a) with different classes of buyers. It may also be, according to the second proviso to the new Section 4(1)(a), the price fixed as the wholesale price under any law or the maximum price where the law fixes a maximum. The price may also be a different price if the case falls within the third proviso to the new Section 4(1)(a). In that event it will be the price charged by a related person in the course of wholesale trade. Clearly, it is not possible to conceive of the price under the new Section 4(1)(a) being confined to the manufacturing cost and the manufacturing profit. Moreover, it is reasonable to suppose that the central principle for the determination of the value of the excisable article should be the same, whether the case falls under Clause (a) or Clause (b) of the old Section 4 or under the new Section 4(1). When regard is had to the provision of Clause (b) in each case, it is not possible to limit the price to its components representing the manufacturing cost and manufacturing profit. 17. In Collector of Central Excise v. Indian Oxygen Ltd., AIR 1988 SC 1873 , referring to the decision in Union of India v. Bombay Tyre International Ltd., (1984) 1 SCC 467 , this Court held that in the light of the aforesaid principles it has to be borne in mind that any activity ancillary to but not incidental to the manufacture cannot be included as part of the activity for the manufacture. Any income either in the form of interest on deposits, notional or real earned on the deposit etc. would not be the price for the manufacture though they might be profits or gains, if any, of any ancillary or allied venture. 18. In the present case the Assessee failed to bring the ascertainable price of the tractor, cost of transportation to depot, etc. to the notice of the High Court. The Assessee simply challenged the show-cause notices on the ground that the amended Section 4 is not applicable. The High Court without looking into the relevant fact, only on the ground that Sub-clause (iii) to Section 4(b) was subsequently added by amendment including depot, premises of consignment agent or any other place or premises from where the excisable goods were to be sold after their clearance from the factory, declared the notices illegal and set aside the same. Even the matter was not remanded back to competent authority allowing the Assessee to bring to its notice "normal price", in course of wholesale trade, place of removal of tractors, transportation charges, etc. | 1[ds]18. In the present case the Assessee failed to bring the ascertainable price of the tractor, cost of transportation to depot, etc. to the notice of the High Court. The Assessee simply challenged the show-cause notices on the ground that the amended Section 4 is not applicable. The High Court without looking into the relevant fact, only on the ground that Sub-clause (iii) to Section 4(b) was subsequently added by amendment including depot, premises of consignment agent or any other place or premises from where the excisable goods were to be sold after their clearance from the factory, declared the notices illegal and set aside the same. Even the matter was not remanded back to competent authority allowing the Assessee to bring to its notice "normal price", in course of wholesale trade, place of removal of tractors, transportation charges, | 1 | 5,237 | 164 | ### 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:
of the scheme. The new scheme was merely more comprehensive and the language employed more precise and definite. As in the old Section 4, the terms in which the value was defined remained the price charged by the Assessee in the course of wholesale trade for delivery at the time and place of removal. Under the new Section 4 the phrase "place of removal" was defined by Section 4(b) not merely as "the factory or any other place or premises of production or manufacture of the excisable goods" from where such goods are removed but was extended to "a warehouse or any place or premises wherein the excisable goods have been permitted to be deposited without payment of duty" and from where such goods are removed. The judicial construction of the provisions of the old Section 4 had already declared that the price envisaged under Clauses (a) and (b) of that section was the price charged by the manufacturer in a transaction at arms length. After referring to several cases, some of which have already been mentioned here earlier, this Court pointed out in Voltas Limited, (1973) 3 SCC 503 :"the wholesale cash price has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyer to whom a specially low price is charged because of extra-commercial considerations, e.g., because he is a relative of the manufacturer, the price charged for those sales would not be the wholesale cash price for levying excise Under Section 4(a) of the Act. A sole distributor might or might not be a favoured buyer according as terms of the agreement with him are fair and reasonable and were arrived at on purely commercial basis.34. Both learned Counsel for the Assessees and the learned Solicitor General for the Revenue are agreed that in enacting the new Section 4 Parliament did not intend to bring into existence a scheme of valuation different from that embodied in the old Section 4. Reference was made in that connection to the Statement of Objects and Reasons. The difference, however, lies in this that while learned Counsel for the Assessee attempted to show by reference to the old Section 4 that the legislative intent was to confine the value of an excisable article to the manufacturing cost and manufacturing profit and that therefore the same limitations should be read into the new Section 4, the learned Solicitor-General approached the problem from the other end and contended that since on a plain reading of the new Section 4 the price actually charged by the Assessee was the true criterion and was not limited to the manufacturing cost and manufacturing profit, it is that construction which should be put also on the old Section 4. We have earlier indicated our inability to accept the proposition that the old Section 4 defined the value of an excisable article in terms of the manufacturing cost and manufacturing profit exclusively. We find from an examination of the provisions of the new Section 4 that a similar conclusion must follow. The normal price mentioned in the new Section 4(1)(a) is the price at which the goods are ordinarily sold by the Assessee in the course of wholesale trade. It is the wholesale price charged by him. It is a price which may vary, according to the first proviso to the new Section 4(1)(a) with different classes of buyers. It may also be, according to the second proviso to the new Section 4(1)(a), the price fixed as the wholesale price under any law or the maximum price where the law fixes a maximum. The price may also be a different price if the case falls within the third proviso to the new Section 4(1)(a). In that event it will be the price charged by a related person in the course of wholesale trade. Clearly, it is not possible to conceive of the price under the new Section 4(1)(a) being confined to the manufacturing cost and the manufacturing profit. Moreover, it is reasonable to suppose that the central principle for the determination of the value of the excisable article should be the same, whether the case falls under Clause (a) or Clause (b) of the old Section 4 or under the new Section 4(1). When regard is had to the provision of Clause (b) in each case, it is not possible to limit the price to its components representing the manufacturing cost and manufacturing profit. 17. In Collector of Central Excise v. Indian Oxygen Ltd., AIR 1988 SC 1873 , referring to the decision in Union of India v. Bombay Tyre International Ltd., (1984) 1 SCC 467 , this Court held that in the light of the aforesaid principles it has to be borne in mind that any activity ancillary to but not incidental to the manufacture cannot be included as part of the activity for the manufacture. Any income either in the form of interest on deposits, notional or real earned on the deposit etc. would not be the price for the manufacture though they might be profits or gains, if any, of any ancillary or allied venture. 18. In the present case the Assessee failed to bring the ascertainable price of the tractor, cost of transportation to depot, etc. to the notice of the High Court. The Assessee simply challenged the show-cause notices on the ground that the amended Section 4 is not applicable. The High Court without looking into the relevant fact, only on the ground that Sub-clause (iii) to Section 4(b) was subsequently added by amendment including depot, premises of consignment agent or any other place or premises from where the excisable goods were to be sold after their clearance from the factory, declared the notices illegal and set aside the same. Even the matter was not remanded back to competent authority allowing the Assessee to bring to its notice "normal price", in course of wholesale trade, place of removal of tractors, transportation charges, etc.
### Response:
1
### Explanation:
18. In the present case the Assessee failed to bring the ascertainable price of the tractor, cost of transportation to depot, etc. to the notice of the High Court. The Assessee simply challenged the show-cause notices on the ground that the amended Section 4 is not applicable. The High Court without looking into the relevant fact, only on the ground that Sub-clause (iii) to Section 4(b) was subsequently added by amendment including depot, premises of consignment agent or any other place or premises from where the excisable goods were to be sold after their clearance from the factory, declared the notices illegal and set aside the same. Even the matter was not remanded back to competent authority allowing the Assessee to bring to its notice "normal price", in course of wholesale trade, place of removal of tractors, transportation charges,
|
M/s. S.R. Ghosh Vs. Union of India | the price rise notification dated 3.7.1996 was to the knowledge and notice of the appellant, and as such, when the appellant executed the formal agreement on 16.09.1996, it consented to the position as it prevailed on that date. The entire controversy was examined in the aforesaid background. Clauses 16 and 43 were also viewed in that background.8. The order passed by the learned Single Judge on 8.4.2005 was assailed unsuccessfully by the appellant before a Division Bench of the High Court. The Division Bench dismissed the challenge through the impugned order dated 19.12.2005. Through the instant civil appeal, the appellant is seeking to assail the findings recorded by the learned Single Judge dated 8.4.2005, and that of the Division Bench of the Calcutta High Court dated 19.12.2005.9. We have heard learned counsel for the rival parties at some length. The first issue that falls for our consideration is, whether or not the arbitral Tribunal had the jurisdiction in the matter. We are of the considered view, that the assumption of the courts below, that the contractual obligation bound the parties when the formal agreement was executed on 16.09.1996 was based on an unacceptable foundation. When the offer made by the appellant in response to the tender notice dated 18.01.1996 was accepted by the respondent on 10.05.1996, the obligations between the parties must be understood to have attained finality, inasmuch as, if the appellant chose to walk out of the contractual obligation after its offer was accepted by the respondent, there would be adverse civil consequence, as for instance, the earnest money deposited by the appellant, could have been forfeited. In the above view of the matter, we are of the view, that the obligations between the parties in furtherance of the tender notice dated 18.01.1996 came to be crystalized on 10.05.1996, when the formal acceptance letter was issued by the respondent to the appellant.10. Having concluded as above, it is obvious that the price rise emerging out of the notification of the Central Government dated 3.7.1996 fell within the jurisdiction of the arbitral Tribunal. We say so, because the above notification was issued after ( and not before) the dates of finalization of the contract between the parties. And as such, the appellant must be deemed to have entered into the contractual obligation, without knowledge and notice of the price escalation. The arbitral Tribunal was therefore obliged to deal with the claim of escalation made by the appellant, premised on the notification dated 3.7.1996.11. The first question that arises for our consideration is, whether the arbitral award can be considered to be justified in the background of clause 16 of the general conditions of contract. We are of the considered view, that the parties were bound on the rates executed in the agreement and "any fluctuation of market rates" would not be a ground to entertain a challenge to the determined rates under the contract. First and foremost, we must record that it was well within the domain of the arbitral Tribunal to construe the provisions of the contract. The arbitral Tribunal on analysing clause 16 arrived at the conclusion, that fluctuation of market rates would not be a sufficient ground to entertain a claim for escalation. The arbitral Tribunal however arrived at the conclusion, that the escalation of rates in question was based on a statutory notification issued by the Central Government on 3.7.1996 which did not fall within the realm of clause 16. We are of the view, that the interpretation placed by the arbitral Tribunal on clause 16 was a possible view, and calls for no interference at our hands. Our instant determination is also based on the fact that the appellant had made a stake for escalation in two express communications addressed by the appellant to the respondent dated 22.07.1996 and 13.09.1996, and therefore must never be seen to have accepted the position adopted by the respondent through the letter dated 15.07.1996 (extracted above).12. The only remaining issue that requires our attention is based on clause 43 of the general conditions of contract. A perusal of the above clause, according to the learned counsel for the respondent, leaves no room for any doubt that after the contractor had signed a "No Claim Certificate" in favour of the respondent, it was not open to the appellant, to raise a claim that he is presently agitating, based on the Central Government notification dated 3.7.1996. It was submitted, that it is not even the case of the appellant before this Court, nor has it been before the courts below, or even before the arbitral Tribunal that the appellant did not sign the "No Claim Certificate", and that too after the works were finally measured up. It was accordingly submitted, that the factum of having signed a "No Claim Certificate" renders the claim of the appellant unacceptable.13. It is not necessary for us to seriously examine the issue canvassed at the behest of the respondent, based on clause 43, in view of the following findings recorded by the arbitral Tribunal:"(5) The respondent argued during hearing meeting that as per clause 43 of General conditions of contract, after signing of No Claim Certificate and acceptance of final bills no further claim is maintainable. During the proceedings this tribunal came to learn from the respondent that signing of No Claim Certificate is compulsory on the part of the claimant in getting the payment for undisputed portion of final bills. Otherwise, the final bills will not be passed; in other words, the claimant had no way but to sign the No Claim Certificate for getting the payment. However, this tribunal considers that payment of final bills after signing the said No Claim Certificate in no way affects the instant claim of the claimant."(emphasis is ours)We find no justification to interfere with the afore-stated findings recorded in the arbitral award, especially on account of the fact, that the same was recorded on the basis of inputs furnished at the behest of the respondent itself. | 0[ds]We are of the considered view, that the assumption of the courts below, that the contractual obligation bound the parties when the formal agreement was executed on 16.09.1996 was based on an unacceptable foundation. When the offer made by the appellant in response to the tender notice dated 18.01.1996 was accepted by the respondent on 10.05.1996, the obligations between the parties must be understood to have attained finality, inasmuch as, if the appellant chose to walk out of the contractual obligation after its offer was accepted by the respondent, there would be adverse civil consequence, as for instance, the earnest money deposited by the appellant, could have been forfeited. In the above view of the matter, we are of the view, that the obligations between the parties in furtherance of the tender notice dated 18.01.1996 came to be crystalized on 10.05.1996, when the formal acceptance letter was issued by the respondent to the appellant.10. Having concluded as above, it is obvious that the price rise emerging out of the notification of the Central Government dated 3.7.1996 fell within the jurisdiction of the arbitral Tribunal. We say so, because the above notification was issued after ( and not before) the dates of finalization of the contract between the parties. And as such, the appellant must be deemed to have entered into the contractual obligation, without knowledge and notice of the price escalation. The arbitral Tribunal was therefore obliged to deal with the claim of escalation made by the appellant, premised on the notification datedare of the considered view, that the parties were bound on the rates executed in the agreement and "any fluctuation of market rates" would not be a ground to entertain a challenge to the determined rates under the contract. First and foremost, we must record that it was well within the domain of the arbitral Tribunal to construe the provisions of the contract. The arbitral Tribunal on analysing clause 16 arrived at the conclusion, that fluctuation of market rates would not be a sufficient ground to entertain a claim for escalation. The arbitral Tribunal however arrived at the conclusion, that the escalation of rates in question was based on a statutory notification issued by the Central Government on 3.7.1996 which did not fall within the realm of clause 16. We are of the view, that the interpretation placed by the arbitral Tribunal on clause 16 was a possible view, and calls for no interference at our hands. Our instant determination is also based on the fact that the appellant had made a stake for escalation in two express communications addressed by the appellant to the respondent dated 22.07.1996 and 13.09.1996, and therefore must never be seen to have accepted the position adopted by the respondent through the letter dated 15.07.1996 (extractedfind no justification to interfere with thefindings recorded in the arbitral award, especially on account of the fact, that the same was recorded on the basis of inputs furnished at the behest of the respondent itself. | 0 | 2,615 | 544 | ### 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:
the price rise notification dated 3.7.1996 was to the knowledge and notice of the appellant, and as such, when the appellant executed the formal agreement on 16.09.1996, it consented to the position as it prevailed on that date. The entire controversy was examined in the aforesaid background. Clauses 16 and 43 were also viewed in that background.8. The order passed by the learned Single Judge on 8.4.2005 was assailed unsuccessfully by the appellant before a Division Bench of the High Court. The Division Bench dismissed the challenge through the impugned order dated 19.12.2005. Through the instant civil appeal, the appellant is seeking to assail the findings recorded by the learned Single Judge dated 8.4.2005, and that of the Division Bench of the Calcutta High Court dated 19.12.2005.9. We have heard learned counsel for the rival parties at some length. The first issue that falls for our consideration is, whether or not the arbitral Tribunal had the jurisdiction in the matter. We are of the considered view, that the assumption of the courts below, that the contractual obligation bound the parties when the formal agreement was executed on 16.09.1996 was based on an unacceptable foundation. When the offer made by the appellant in response to the tender notice dated 18.01.1996 was accepted by the respondent on 10.05.1996, the obligations between the parties must be understood to have attained finality, inasmuch as, if the appellant chose to walk out of the contractual obligation after its offer was accepted by the respondent, there would be adverse civil consequence, as for instance, the earnest money deposited by the appellant, could have been forfeited. In the above view of the matter, we are of the view, that the obligations between the parties in furtherance of the tender notice dated 18.01.1996 came to be crystalized on 10.05.1996, when the formal acceptance letter was issued by the respondent to the appellant.10. Having concluded as above, it is obvious that the price rise emerging out of the notification of the Central Government dated 3.7.1996 fell within the jurisdiction of the arbitral Tribunal. We say so, because the above notification was issued after ( and not before) the dates of finalization of the contract between the parties. And as such, the appellant must be deemed to have entered into the contractual obligation, without knowledge and notice of the price escalation. The arbitral Tribunal was therefore obliged to deal with the claim of escalation made by the appellant, premised on the notification dated 3.7.1996.11. The first question that arises for our consideration is, whether the arbitral award can be considered to be justified in the background of clause 16 of the general conditions of contract. We are of the considered view, that the parties were bound on the rates executed in the agreement and "any fluctuation of market rates" would not be a ground to entertain a challenge to the determined rates under the contract. First and foremost, we must record that it was well within the domain of the arbitral Tribunal to construe the provisions of the contract. The arbitral Tribunal on analysing clause 16 arrived at the conclusion, that fluctuation of market rates would not be a sufficient ground to entertain a claim for escalation. The arbitral Tribunal however arrived at the conclusion, that the escalation of rates in question was based on a statutory notification issued by the Central Government on 3.7.1996 which did not fall within the realm of clause 16. We are of the view, that the interpretation placed by the arbitral Tribunal on clause 16 was a possible view, and calls for no interference at our hands. Our instant determination is also based on the fact that the appellant had made a stake for escalation in two express communications addressed by the appellant to the respondent dated 22.07.1996 and 13.09.1996, and therefore must never be seen to have accepted the position adopted by the respondent through the letter dated 15.07.1996 (extracted above).12. The only remaining issue that requires our attention is based on clause 43 of the general conditions of contract. A perusal of the above clause, according to the learned counsel for the respondent, leaves no room for any doubt that after the contractor had signed a "No Claim Certificate" in favour of the respondent, it was not open to the appellant, to raise a claim that he is presently agitating, based on the Central Government notification dated 3.7.1996. It was submitted, that it is not even the case of the appellant before this Court, nor has it been before the courts below, or even before the arbitral Tribunal that the appellant did not sign the "No Claim Certificate", and that too after the works were finally measured up. It was accordingly submitted, that the factum of having signed a "No Claim Certificate" renders the claim of the appellant unacceptable.13. It is not necessary for us to seriously examine the issue canvassed at the behest of the respondent, based on clause 43, in view of the following findings recorded by the arbitral Tribunal:"(5) The respondent argued during hearing meeting that as per clause 43 of General conditions of contract, after signing of No Claim Certificate and acceptance of final bills no further claim is maintainable. During the proceedings this tribunal came to learn from the respondent that signing of No Claim Certificate is compulsory on the part of the claimant in getting the payment for undisputed portion of final bills. Otherwise, the final bills will not be passed; in other words, the claimant had no way but to sign the No Claim Certificate for getting the payment. However, this tribunal considers that payment of final bills after signing the said No Claim Certificate in no way affects the instant claim of the claimant."(emphasis is ours)We find no justification to interfere with the afore-stated findings recorded in the arbitral award, especially on account of the fact, that the same was recorded on the basis of inputs furnished at the behest of the respondent itself.
### Response:
0
### Explanation:
We are of the considered view, that the assumption of the courts below, that the contractual obligation bound the parties when the formal agreement was executed on 16.09.1996 was based on an unacceptable foundation. When the offer made by the appellant in response to the tender notice dated 18.01.1996 was accepted by the respondent on 10.05.1996, the obligations between the parties must be understood to have attained finality, inasmuch as, if the appellant chose to walk out of the contractual obligation after its offer was accepted by the respondent, there would be adverse civil consequence, as for instance, the earnest money deposited by the appellant, could have been forfeited. In the above view of the matter, we are of the view, that the obligations between the parties in furtherance of the tender notice dated 18.01.1996 came to be crystalized on 10.05.1996, when the formal acceptance letter was issued by the respondent to the appellant.10. Having concluded as above, it is obvious that the price rise emerging out of the notification of the Central Government dated 3.7.1996 fell within the jurisdiction of the arbitral Tribunal. We say so, because the above notification was issued after ( and not before) the dates of finalization of the contract between the parties. And as such, the appellant must be deemed to have entered into the contractual obligation, without knowledge and notice of the price escalation. The arbitral Tribunal was therefore obliged to deal with the claim of escalation made by the appellant, premised on the notification datedare of the considered view, that the parties were bound on the rates executed in the agreement and "any fluctuation of market rates" would not be a ground to entertain a challenge to the determined rates under the contract. First and foremost, we must record that it was well within the domain of the arbitral Tribunal to construe the provisions of the contract. The arbitral Tribunal on analysing clause 16 arrived at the conclusion, that fluctuation of market rates would not be a sufficient ground to entertain a claim for escalation. The arbitral Tribunal however arrived at the conclusion, that the escalation of rates in question was based on a statutory notification issued by the Central Government on 3.7.1996 which did not fall within the realm of clause 16. We are of the view, that the interpretation placed by the arbitral Tribunal on clause 16 was a possible view, and calls for no interference at our hands. Our instant determination is also based on the fact that the appellant had made a stake for escalation in two express communications addressed by the appellant to the respondent dated 22.07.1996 and 13.09.1996, and therefore must never be seen to have accepted the position adopted by the respondent through the letter dated 15.07.1996 (extractedfind no justification to interfere with thefindings recorded in the arbitral award, especially on account of the fact, that the same was recorded on the basis of inputs furnished at the behest of the respondent itself.
|
State Of Gujarat & Another Vs. Zinabhai Ranchhodji Darji & Ors | applied to the municipal borough of Surat prior to that borough becoming a City with effect from October 1, 1966. The Panchayats Act was thus in force in the municipal borough of Surat immediately preceding October 1, 1966 on which date Surat became a City. If follows that "municipal borough" in S. 310A (10) of the Panchayats Act would have the meaning of the word "City". 8. Before us no attempt was made on behalf of the State to demolish all the steps in the above process of reasoning and in particular the conclusion of the High Court that S.310A (10) of the Panchayats Act was applicable to a revenue district which included the borough of Surat before it became a city. It was suggested on behalf of the State that the provisions of the Panchayats Act with the exception of S.1 (2) were to be applied in respect of such class of panchayats in such districts and on such dates as the State Government may be notification appoint. The provisions of the Panchayats Act could thus be made applicable only in respect of pahchayats. What S. 1 (3) however provides is that the provisions of the Act can be brought into force in such districts as the State Government may by notification in the Official Gazette appoint. Indeed the notification dated February 7, 1963 provided that the provisions of S. 310 shall come into force in all the districts of the State of Gujarat except the district of Dangs. 9. The principal argument that has been addressed to us in that the provisions contained in Appendix IV of the Corporations Act referred to above clearly employ the language. "unless a different intention appears."A great deal of emphasis has been laid on the Explanation appearing in S. 310A in which municipal borough is confined only to a municipal borough constituted or deemed to be constituted under the Municipalities Act, 1963. The omission of the word "city" from the Explanation, It is said, is significant and it would be wholly impermissible to travel beyond the Explanation which contains the key to the meaning of the word "municipal borough" as employed in the sub-section. It alos shows a contrary intention which rules out the applicability of Para I of Appendix IV of the Corporation Act. It has also been urged that the words "conversion of a municipal borough into a Gram or a Nagar" in sub-s. (10) of S. 310-A of the Panchayats Act could not possibly take in a city which would ordinarily have a population of more than two lakhs. By reading the word "city" in place of the word "municipal borough" by applying Para I of Appendix IV of the Corporations Act the result would be so absurd that it would be contrary to all canons of interpretation to do so, It does appear somewhat unusual that the draftsmen of S. 310A and in particular sub-s. (10) of that section should have omitted the word "city" from the principal part of that sub-section as also the Explanation. But it is equally possible that the applicability of Appendix IV (para I) of the Corporations Act was kept in view and it was considered unnecessary to expressly mention the word "city" in S. 310A (10) of the Panchayat Act. The High Court was of the opinion with regard to the second limb of the argument on this point that although it would be impossible to conceive of a situation where a city might be converted into a Gram or a Nagar but that would only mean that no occasion would arise in to invoke the words "conversion of a municipal borough into a Gram or a Nagar.". These words would not be rendered meaningless as they would continue to apply to a situation where a municipal borough (within the meaning of the Municipalities Act) and not a city was converted into a Gram or Nagar. There as a good deal of force in the following reasoning of the High with regard to the applicability of paragraph I Appendix IV:"The principal underlying Paragraph I seems to be that where an enactment was in force in a local area and applied in relation to it, it must continue to apply notwithstanding that the local area is converted from a municipal borough into a City. Here in the present case if the local area of Surat had continued to be a municipal borough which it was when sub-section (10) of section 310A came into force and the alteration of the limits of Chorashi Taluka and Surat District had taken place as a result of the inclusion of Rander and Adajan in the limits of the Municipal Borough of Surat, sub-section (10) of section 310A would have applied, then is there any reason from the point of view of Section 310A why the Legislature should have intended that a different consequence shall ensue if the same alteration takes place a time when the Surat Municipal Borough is converted into the City of Surat. There is no conceivable reason why the consequences which would have followed from the alteration of the limits of the local area of Surat when it was a Municipal Borough should not follow when the same alteration takes place in the, limits of the same local area of Surat after it is constituted into a City." 10. After fully considering the contentions raised on behalf of the State we are not satisfied that there is any such infirmity in the Judgment of the High Court which makes it erroneous or would justify our taking a different view. It must be remembered that in the matter of interpretation of enactments which are in force in a particular State this court generally attaches a good deal of value to the views of the High Court of that State, particularly when they have been fully considered by it, because that court is expected to be sufficiently conversant with the provisions of the various local enactments. | 0[ds]As has been pointed out by the High Court if the city of Surat which was originally a municipal borough constituted under the Bombay Municipal Boroughs Act 1925 became a municipal borough under the deeming provisions of the Municipalities Act 1963 there would have been no difficulty in applying S. 310A (10) and its provisions would have excluded the applicability of sub-s. (1) of S. 310A when the limits of Chorashi Taluka and the Surat district were altered by reason of Rander and Adajan having been excluded from the same and included in the city of Surat as a result of the notification dated January 16, 1970. But the municipal borough of Surat had been converted into a city with effect from October 1, 1966 as noticed before under the provisions of the Corporations Act. This immediately led to the question whether the applicability of S.310 A (10) would be attracted by virtue of S. 493 read with Appendix IV. Para 1 of the Corporations Act7. The approach of the High Court appears to have been that the word district in S. 1 (3) must mean a revenue district and not a district as defined in S. 2 (6) of the Panchayats Act. The opening words of the definition section are "unless the context otherwise requires". Section 1 (2) of the same Act declares that it extends to the whole of the State of Gujarat. Sub-section (3) provides that S.1 shall come into force at once. It further provides that all or any of the remaining provisions of the Panchayats Act shall come into force in respect of such class of panchayats in such districts and on such dates as the State Government may by notification appoint. The State Government can appoint different dates in respect of different districts and different provisions. From this the High Court concluded that the word "district? in section 1 (3) must mean a revenue district. The main reason which prevailed with High Court was that the word "district" in that provision could not be construed to a district which was yet to be formed under section 2 (6) of the panchayats Act particularly when that provision could come into force only when the notification had been issued under S.1 (3). Thus a district under the Panchayats Act could be formed only if its provisions were brought into force. It may be useful to give conclusion of the High Court in its own words:"......how can a notification be issued by the State Government under section 1 sub-s. (3) bringing into force the provisions of the Panchayats Act in a district which can exist legally as well as conceptually only after the provisions of the Act are brought into force? Section 1 sub-s (3) applies at a stage prior to the formation of the district under the Panchyats Act..."The High Court also referred to the provisions of S. 9 of the Panchayats Act and illustrated how the State Government could not invoke its provisions for the purpose of declaring such revenue village or group of revenue villages to be a Nagar or a Gram. It was only it S.9 was in force in the local area comprising in such revenue village or group of revenue villages that State Government could acting under that section declare such local area to be a Nagar or a Gram. Similar would be the case with reference to S. 307 of the Panchayats Act which is to be found in Chapter XVI which makes provisions for conversion of municipality into a Panchayat and for amalgamation and division of Panchayats. Section 310A was applied by means of a notification dated February 7, 1963. The High Court construed the notification to mean that it was applied to the revenue district of Surat which would include the municipal borough of Surat. Now Para I of Appendix IV in the Corporation Act Lays down that references in any enactment other than the three enactments mentioned therein which were in force on the date preceding the appointed day in a city to municipal boroughs etc. shall, unless a different intention appears, be construed as references to the City. If S. 310A of the Panchayats Act was in force in the revenue district of Surat it applied to the municipal borough of Surat prior to that borough becoming a City with effect from October 1, 1966. The Panchayats Act was thus in force in the municipal borough of Surat immediately preceding October 1, 1966 on which date Surat became a City. If follows that "municipal borough" in S.310A (10) of the Panchayats Actwould have the meaning of the word "City"8. Before us no attempt was made on behalf of the State to demolish all the steps in the above process of reasoning and in particular the conclusion of the High Court thatA (10) of the Panchayats Actwas applicable to a revenue district which included the borough of Surat before it became a city. It was suggested on behalf of the State that the provisions of the Panchayats Act with the exception of S.1 (2) were to be applied in respect of such class of panchayats in such districts and on such dates as the State Government may be notification appoint. The provisions of the Panchayats Act could thus be made applicable only in respect of pahchayats. What S. 1 (3) however provides is that the provisions of the Act can be brought into force in such districts as the State Government may by notification in the Official Gazette appoint. Indeed the notification dated February 7, 1963 provided that the provisions of S. 310 shall come into force in all the districts of the State of Gujarat except the district of DangsThe omission of the word "city" from the Explanation, It is said, is significant and it would be wholly impermissible to travel beyond the Explanation which contains the key to the meaning of the word "municipal borough" as employed in the sub-section. It alos shows a contrary intention which rules out the applicability of Para I of Appendix IV of the Corporation Act. It has also been urged that the words "conversion of a municipal borough into a Gram or a Nagar" in sub-s. (10) of S. 310-A of the Panchayats Act could not possibly take in a city which would ordinarily have a population of more than two lakhs. By reading the word "city" in place of the word "municipal borough" by applying Para I of Appendix IV of the Corporations Act the result would be so absurd that it would be contrary to all canons of interpretation to do so, It does appear somewhat unusual that the draftsmen of S. 310A and in particular sub-s. (10) of that section should have omitted the word "city" from the principal part of that sub-section as also the Explanation. But it is equally possible that the applicability of Appendix IV (para I) of the Corporations Act was kept in view and it was considered unnecessary to expressly mention the word "city" in S. 310A (10) of the Panchayat Act. The High Court was of the opinion with regard to the second limb of the argument on this point that although it would be impossible to conceive of a situation where a city might be converted into a Gram or a Nagar but that would only mean that no occasion would arise in to invoke the words "conversion of a municipal borough into a Gram or a Nagar.". These words would not be rendered meaningless as they would continue to apply to a situation where a municipal borough (within the meaning of the Municipalities Act) and not a city was converted into a Gram or Nagar10. After fully considering the contentions raised on behalf of the State we are not satisfied that there is any such infirmity in the Judgment of the High Court which makes it erroneous or would justify our taking a different view. It must be remembered that in the matter of interpretation of enactments which are in force in a particular State this court generally attaches a good deal of value to the views of the High Court of that State, particularly when they have been fully considered by it, because that court is expected to be sufficiently conversant with the provisions of the various local enactments | 0 | 3,847 | 1,521 | ### 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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applied to the municipal borough of Surat prior to that borough becoming a City with effect from October 1, 1966. The Panchayats Act was thus in force in the municipal borough of Surat immediately preceding October 1, 1966 on which date Surat became a City. If follows that "municipal borough" in S. 310A (10) of the Panchayats Act would have the meaning of the word "City". 8. Before us no attempt was made on behalf of the State to demolish all the steps in the above process of reasoning and in particular the conclusion of the High Court that S.310A (10) of the Panchayats Act was applicable to a revenue district which included the borough of Surat before it became a city. It was suggested on behalf of the State that the provisions of the Panchayats Act with the exception of S.1 (2) were to be applied in respect of such class of panchayats in such districts and on such dates as the State Government may be notification appoint. The provisions of the Panchayats Act could thus be made applicable only in respect of pahchayats. What S. 1 (3) however provides is that the provisions of the Act can be brought into force in such districts as the State Government may by notification in the Official Gazette appoint. Indeed the notification dated February 7, 1963 provided that the provisions of S. 310 shall come into force in all the districts of the State of Gujarat except the district of Dangs. 9. The principal argument that has been addressed to us in that the provisions contained in Appendix IV of the Corporations Act referred to above clearly employ the language. "unless a different intention appears."A great deal of emphasis has been laid on the Explanation appearing in S. 310A in which municipal borough is confined only to a municipal borough constituted or deemed to be constituted under the Municipalities Act, 1963. The omission of the word "city" from the Explanation, It is said, is significant and it would be wholly impermissible to travel beyond the Explanation which contains the key to the meaning of the word "municipal borough" as employed in the sub-section. It alos shows a contrary intention which rules out the applicability of Para I of Appendix IV of the Corporation Act. It has also been urged that the words "conversion of a municipal borough into a Gram or a Nagar" in sub-s. (10) of S. 310-A of the Panchayats Act could not possibly take in a city which would ordinarily have a population of more than two lakhs. By reading the word "city" in place of the word "municipal borough" by applying Para I of Appendix IV of the Corporations Act the result would be so absurd that it would be contrary to all canons of interpretation to do so, It does appear somewhat unusual that the draftsmen of S. 310A and in particular sub-s. (10) of that section should have omitted the word "city" from the principal part of that sub-section as also the Explanation. But it is equally possible that the applicability of Appendix IV (para I) of the Corporations Act was kept in view and it was considered unnecessary to expressly mention the word "city" in S. 310A (10) of the Panchayat Act. The High Court was of the opinion with regard to the second limb of the argument on this point that although it would be impossible to conceive of a situation where a city might be converted into a Gram or a Nagar but that would only mean that no occasion would arise in to invoke the words "conversion of a municipal borough into a Gram or a Nagar.". These words would not be rendered meaningless as they would continue to apply to a situation where a municipal borough (within the meaning of the Municipalities Act) and not a city was converted into a Gram or Nagar. There as a good deal of force in the following reasoning of the High with regard to the applicability of paragraph I Appendix IV:"The principal underlying Paragraph I seems to be that where an enactment was in force in a local area and applied in relation to it, it must continue to apply notwithstanding that the local area is converted from a municipal borough into a City. Here in the present case if the local area of Surat had continued to be a municipal borough which it was when sub-section (10) of section 310A came into force and the alteration of the limits of Chorashi Taluka and Surat District had taken place as a result of the inclusion of Rander and Adajan in the limits of the Municipal Borough of Surat, sub-section (10) of section 310A would have applied, then is there any reason from the point of view of Section 310A why the Legislature should have intended that a different consequence shall ensue if the same alteration takes place a time when the Surat Municipal Borough is converted into the City of Surat. There is no conceivable reason why the consequences which would have followed from the alteration of the limits of the local area of Surat when it was a Municipal Borough should not follow when the same alteration takes place in the, limits of the same local area of Surat after it is constituted into a City." 10. After fully considering the contentions raised on behalf of the State we are not satisfied that there is any such infirmity in the Judgment of the High Court which makes it erroneous or would justify our taking a different view. It must be remembered that in the matter of interpretation of enactments which are in force in a particular State this court generally attaches a good deal of value to the views of the High Court of that State, particularly when they have been fully considered by it, because that court is expected to be sufficiently conversant with the provisions of the various local enactments.
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into force. It may be useful to give conclusion of the High Court in its own words:"......how can a notification be issued by the State Government under section 1 sub-s. (3) bringing into force the provisions of the Panchayats Act in a district which can exist legally as well as conceptually only after the provisions of the Act are brought into force? Section 1 sub-s (3) applies at a stage prior to the formation of the district under the Panchyats Act..."The High Court also referred to the provisions of S. 9 of the Panchayats Act and illustrated how the State Government could not invoke its provisions for the purpose of declaring such revenue village or group of revenue villages to be a Nagar or a Gram. It was only it S.9 was in force in the local area comprising in such revenue village or group of revenue villages that State Government could acting under that section declare such local area to be a Nagar or a Gram. Similar would be the case with reference to S. 307 of the Panchayats Act which is to be found in Chapter XVI which makes provisions for conversion of municipality into a Panchayat and for amalgamation and division of Panchayats. Section 310A was applied by means of a notification dated February 7, 1963. The High Court construed the notification to mean that it was applied to the revenue district of Surat which would include the municipal borough of Surat. Now Para I of Appendix IV in the Corporation Act Lays down that references in any enactment other than the three enactments mentioned therein which were in force on the date preceding the appointed day in a city to municipal boroughs etc. shall, unless a different intention appears, be construed as references to the City. If S. 310A of the Panchayats Act was in force in the revenue district of Surat it applied to the municipal borough of Surat prior to that borough becoming a City with effect from October 1, 1966. The Panchayats Act was thus in force in the municipal borough of Surat immediately preceding October 1, 1966 on which date Surat became a City. If follows that "municipal borough" in S.310A (10) of the Panchayats Actwould have the meaning of the word "City"8. Before us no attempt was made on behalf of the State to demolish all the steps in the above process of reasoning and in particular the conclusion of the High Court thatA (10) of the Panchayats Actwas applicable to a revenue district which included the borough of Surat before it became a city. It was suggested on behalf of the State that the provisions of the Panchayats Act with the exception of S.1 (2) were to be applied in respect of such class of panchayats in such districts and on such dates as the State Government may be notification appoint. The provisions of the Panchayats Act could thus be made applicable only in respect of pahchayats. What S. 1 (3) however provides is that the provisions of the Act can be brought into force in such districts as the State Government may by notification in the Official Gazette appoint. Indeed the notification dated February 7, 1963 provided that the provisions of S. 310 shall come into force in all the districts of the State of Gujarat except the district of DangsThe omission of the word "city" from the Explanation, It is said, is significant and it would be wholly impermissible to travel beyond the Explanation which contains the key to the meaning of the word "municipal borough" as employed in the sub-section. It alos shows a contrary intention which rules out the applicability of Para I of Appendix IV of the Corporation Act. It has also been urged that the words "conversion of a municipal borough into a Gram or a Nagar" in sub-s. (10) of S. 310-A of the Panchayats Act could not possibly take in a city which would ordinarily have a population of more than two lakhs. By reading the word "city" in place of the word "municipal borough" by applying Para I of Appendix IV of the Corporations Act the result would be so absurd that it would be contrary to all canons of interpretation to do so, It does appear somewhat unusual that the draftsmen of S. 310A and in particular sub-s. (10) of that section should have omitted the word "city" from the principal part of that sub-section as also the Explanation. But it is equally possible that the applicability of Appendix IV (para I) of the Corporations Act was kept in view and it was considered unnecessary to expressly mention the word "city" in S. 310A (10) of the Panchayat Act. The High Court was of the opinion with regard to the second limb of the argument on this point that although it would be impossible to conceive of a situation where a city might be converted into a Gram or a Nagar but that would only mean that no occasion would arise in to invoke the words "conversion of a municipal borough into a Gram or a Nagar.". These words would not be rendered meaningless as they would continue to apply to a situation where a municipal borough (within the meaning of the Municipalities Act) and not a city was converted into a Gram or Nagar10. After fully considering the contentions raised on behalf of the State we are not satisfied that there is any such infirmity in the Judgment of the High Court which makes it erroneous or would justify our taking a different view. It must be remembered that in the matter of interpretation of enactments which are in force in a particular State this court generally attaches a good deal of value to the views of the High Court of that State, particularly when they have been fully considered by it, because that court is expected to be sufficiently conversant with the provisions of the various local enactments
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KEYSTONE REALTORS PVT. LTD Vs. ANIL V. THARTHARE | while granting clearance for expansion which includes adding new components to the existing industrial operations etc. This has allowed several projects to continue their activities and expand despite blatant non compliance. Finally, it is only with industrial, thermal power and other such related operations that one can decide on parameters of pollution. Development projects like highways, airports and other infrastructure projects which seek to expand might have a detrimental impact due to factors such as change in land use (i.e. construction over a wetland, grassland or agricultural land etc). Despite this, the project proponent can certify that there is no change in pollution load and hence expansion is to be allowed. The current process seeks a detailed EIA report to determine whether impacts can be mitigated. If the amendment is brought into force, it will simply do away with this critical and necessary step in the environmental clearance process. Therefore, this amendment should not be allowed. … The draft notification takes a myopic view of environmental and social impact of modernisation and expansion. Any modernisation/expansion projects will necessarily entail increase in production, increase in transportation, increase in pressure on the local infrastructure and local natural resources and increase in the pollution load during the construction phase. So, even if a modernisation/expansion does not lead to an increase in the pollution load or water or land requirement within the factory premises during the operation phase, it will lead to an increase in environmental and social impact outside the premise.? (Emphasis supplied) The draft amendment was not adopted in subsequent amendments to the EIA Notification. We find considerable merit in the observations of the committee that the requirement of an EC at the time of expansion forms a critical step in the environmental clearance regime. According to the committee, it assists officials not just in evaluating and mitigating any adverse impact caused by the expansion but also in assessing whether the project proponent is in compliance with their existing obligations. Crucially, any form of expansion necessarily puts a strain on the local environment and infrastructure and needs to be carefully evaluated in a holistic manner. 16. In a case where the text of the provisions requires interpretation, this Court must adopt an interpretation which is in consonance with the object and purpose of the legislation or delegated legislation as a whole. The EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It cannot be disputed that as the size of the project increases, so does the magnitude of the project" environmental impact. This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable. It is true that there may exist certain situations where the expansion sought by a project proponent is truly marginal or the environmental impact of such expansion is non-existent. However, it is not for this Court to lay down a bright-line test as to what constitutes a "marginal" increase and what constitutes a material increase warranting a fresh Form 1 and scrutiny by the Expert Appraisal Committee. If the government in its wisdom were to prescribe that a one-time "marginal"increase (e.g. 5% or 10%) in project size, within the threshold limit stipulated in the Schedule, could be subject to a lower standard of scrutiny without diluting the urgent need for environmental protection, conceivably this Court may give effect to such a provision. This would be subject to any challenge on the ground of their being a violation of the precautionary principle. However, as the EIA Notification currently stands, an expansion within the limits prescribed by the Schedules would be subject to the procedure set out in paragraph 7(ii). 17. At the time of the second increase, the total construction area of the appellant" project was enlarged from 32,395.17 square metres to 40,480.88 square metres. As a result of the expansion, the appellant constructed sixteen additional flats which were sold at the prevailing market rate. The appellant did not comply with the procedure set out under paragraph 7(ii) of the EIA Notification but rather sought an "amendment" to the EC. The third respondent did not require the appellant to submit an updated Form 1 nor was the proposal processed and evaluated by the fourth respondent. The "amendment"to the EC dated 13 March 2014 does not discuss the potential environmental impact of the increase in construction area, but merely records that the construction area now stands at 40,480.88 square metres. The procedure set out under paragraph 7(ii) of the EIA Notification exists to ensure that where a project is expanded in size, the environmental impact on the surrounding area is evaluated holistically considering all the relevant factors including air and water availability and pollution, management of solid and wet waste and the urban carrying capacity of the area. This was not done in the case of the appellant" s project. It was not open to the third respondent to grant an "amendment" to the EC without following the procedure set out in paragraph 7(ii) of the EIA Notification. 18. We further note that as on the date of the impugned order construction at the project site had already been completed. A core tenet underlying the entire scheme of the EIA Notification is that construction should not be executed until ample scientific evidence has been compiled so as to understand the true environmental impact of a project. By completing the construction of the project, the appellant denied the third and fourth respondents the ability to evaluate the environmental impact and suggest methods to mitigate any environmental damage. At this stage, only remedial measures may be taken. The NGT has already directed the appellant to deposit Rupees one crore and has set up an expert committee to evaluate the impact of the appellant"s project and suggest remedial measures. | 0[ds]14. The dangers effectively articulated by the learned counsel for the first respondent are real. If clause (ii) of paragraph 2 does not cover a case where the expansion is within the limits stipulated by the Schedule, a project proponent may incrementally keep increasing the size of the project area over time resulting in a significant increase in the project size without an assessment of the environmental impact resulting from the expansion. Such an outcome would defeat the entire scheme of the EIA Notification which is to ensure that any new or additional environmental impact is assessed and certified by the relevant regulatory authorities. In the present case, the lower limit of Entry 8(a) of the Schedule is a built up area of 20,000 square metres and the upper limit is 1,50,000 square metres. It cannot be doubted that the environmental impact of a construction of 1,50,000 square metres is drastically more than construction of 20,000 square metres. If the appellant" argument is accepted in totality, a project proponent could potentially secure an EC for constructing 20,000 square metres and by "amendment" steadily increase the area of construction up to 1,50,000 square metres without submitting an updated Form 1 or any substantive review by the SEACThe draft amendment was not adopted in subsequent amendments to the EIA Notification. We find considerable merit in the observations of the committee that the requirement of an EC at the time of expansion forms a critical step in the environmental clearance regime. According to the committee, it assists officials not just in evaluating and mitigating any adverse impact caused by the expansion but also in assessing whether the project proponent is in compliance with their existing obligations. Crucially, any form of expansion necessarily puts a strain on the local environment and infrastructure and needs to be carefully evaluated in a holistic mannerThe EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It cannot be disputed that as the size of the project increases, so does the magnitude of the project" environmental impact. This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable. It is true that there may exist certain situations where the expansion sought by a project proponent is truly marginal or the environmental impact of such expansion is non-existent. However, it is not for this Court to lay down a bright-line test as to what constitutes a "marginal" increase and what constitutes a material increase warranting a fresh Form 1 and scrutiny by the Expert Appraisal Committee. If the government in its wisdom were to prescribe that a one-time "marginal"increase (e.g. 5% or 10%) in project size, within the threshold limit stipulated in the Schedule, could be subject to a lower standard of scrutiny without diluting the urgent need for environmental protection, conceivably this Court may give effect to such a provision. This would be subject to any challenge on the ground of their being a violation of the precautionary principle. However, as the EIA Notification currently stands, an expansion within the limits prescribed by the Schedules would be subject to the procedure set out in paragraph 7(ii)17. At the time of the second increase, the total construction area of the appellant" project was enlarged from 32,395.17 square metres to 40,480.88 square metres. As a result of the expansion, the appellant constructed sixteen additional flats which were sold at the prevailing market rate. The appellant did not comply with the procedure set out under paragraph 7(ii) of the EIA Notification but rather sought an "amendment" to the EC. The third respondent did not require the appellant to submit an updated Form 1 nor was the proposal processed and evaluated by the fourth respondent. The "amendment"to the EC dated 13 March 2014 does not discuss the potential environmental impact of the increase in construction area, but merely records that the construction area now stands at 40,480.88 square metres. The procedure set out under paragraph 7(ii) of the EIA Notification exists to ensure that where a project is expanded in size, the environmental impact on the surrounding area is evaluated holistically considering all the relevant factors including air and water availability and pollution, management of solid and wet waste and the urban carrying capacity of the area. This was not done in the case of the appellant" s project. It was not open to the third respondent to grant an "amendment" to the EC without following the procedure set out in paragraph 7(ii) of the EIA Notification18. We further note that as on the date of the impugned order construction at the project site had already been completed. A core tenet underlying the entire scheme of the EIA Notification is that construction should not be executed until ample scientific evidence has been compiled so as to understand the true environmental impact of a project. By completing the construction of the project, the appellant denied the third and fourth respondents the ability to evaluate the environmental impact and suggest methods to mitigate any environmental damage. At this stage, only remedial measures may be taken. The NGT has already directed the appellant to deposit Rupees one crore and has set up an expert committee to evaluate the impact of the appellant"s project and suggest remedial measures. | 0 | 4,726 | 1,018 | ### 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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while granting clearance for expansion which includes adding new components to the existing industrial operations etc. This has allowed several projects to continue their activities and expand despite blatant non compliance. Finally, it is only with industrial, thermal power and other such related operations that one can decide on parameters of pollution. Development projects like highways, airports and other infrastructure projects which seek to expand might have a detrimental impact due to factors such as change in land use (i.e. construction over a wetland, grassland or agricultural land etc). Despite this, the project proponent can certify that there is no change in pollution load and hence expansion is to be allowed. The current process seeks a detailed EIA report to determine whether impacts can be mitigated. If the amendment is brought into force, it will simply do away with this critical and necessary step in the environmental clearance process. Therefore, this amendment should not be allowed. … The draft notification takes a myopic view of environmental and social impact of modernisation and expansion. Any modernisation/expansion projects will necessarily entail increase in production, increase in transportation, increase in pressure on the local infrastructure and local natural resources and increase in the pollution load during the construction phase. So, even if a modernisation/expansion does not lead to an increase in the pollution load or water or land requirement within the factory premises during the operation phase, it will lead to an increase in environmental and social impact outside the premise.? (Emphasis supplied) The draft amendment was not adopted in subsequent amendments to the EIA Notification. We find considerable merit in the observations of the committee that the requirement of an EC at the time of expansion forms a critical step in the environmental clearance regime. According to the committee, it assists officials not just in evaluating and mitigating any adverse impact caused by the expansion but also in assessing whether the project proponent is in compliance with their existing obligations. Crucially, any form of expansion necessarily puts a strain on the local environment and infrastructure and needs to be carefully evaluated in a holistic manner. 16. In a case where the text of the provisions requires interpretation, this Court must adopt an interpretation which is in consonance with the object and purpose of the legislation or delegated legislation as a whole. The EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It cannot be disputed that as the size of the project increases, so does the magnitude of the project" environmental impact. This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable. It is true that there may exist certain situations where the expansion sought by a project proponent is truly marginal or the environmental impact of such expansion is non-existent. However, it is not for this Court to lay down a bright-line test as to what constitutes a "marginal" increase and what constitutes a material increase warranting a fresh Form 1 and scrutiny by the Expert Appraisal Committee. If the government in its wisdom were to prescribe that a one-time "marginal"increase (e.g. 5% or 10%) in project size, within the threshold limit stipulated in the Schedule, could be subject to a lower standard of scrutiny without diluting the urgent need for environmental protection, conceivably this Court may give effect to such a provision. This would be subject to any challenge on the ground of their being a violation of the precautionary principle. However, as the EIA Notification currently stands, an expansion within the limits prescribed by the Schedules would be subject to the procedure set out in paragraph 7(ii). 17. At the time of the second increase, the total construction area of the appellant" project was enlarged from 32,395.17 square metres to 40,480.88 square metres. As a result of the expansion, the appellant constructed sixteen additional flats which were sold at the prevailing market rate. The appellant did not comply with the procedure set out under paragraph 7(ii) of the EIA Notification but rather sought an "amendment" to the EC. The third respondent did not require the appellant to submit an updated Form 1 nor was the proposal processed and evaluated by the fourth respondent. The "amendment"to the EC dated 13 March 2014 does not discuss the potential environmental impact of the increase in construction area, but merely records that the construction area now stands at 40,480.88 square metres. The procedure set out under paragraph 7(ii) of the EIA Notification exists to ensure that where a project is expanded in size, the environmental impact on the surrounding area is evaluated holistically considering all the relevant factors including air and water availability and pollution, management of solid and wet waste and the urban carrying capacity of the area. This was not done in the case of the appellant" s project. It was not open to the third respondent to grant an "amendment" to the EC without following the procedure set out in paragraph 7(ii) of the EIA Notification. 18. We further note that as on the date of the impugned order construction at the project site had already been completed. A core tenet underlying the entire scheme of the EIA Notification is that construction should not be executed until ample scientific evidence has been compiled so as to understand the true environmental impact of a project. By completing the construction of the project, the appellant denied the third and fourth respondents the ability to evaluate the environmental impact and suggest methods to mitigate any environmental damage. At this stage, only remedial measures may be taken. The NGT has already directed the appellant to deposit Rupees one crore and has set up an expert committee to evaluate the impact of the appellant"s project and suggest remedial measures.
### Response:
0
### Explanation:
14. The dangers effectively articulated by the learned counsel for the first respondent are real. If clause (ii) of paragraph 2 does not cover a case where the expansion is within the limits stipulated by the Schedule, a project proponent may incrementally keep increasing the size of the project area over time resulting in a significant increase in the project size without an assessment of the environmental impact resulting from the expansion. Such an outcome would defeat the entire scheme of the EIA Notification which is to ensure that any new or additional environmental impact is assessed and certified by the relevant regulatory authorities. In the present case, the lower limit of Entry 8(a) of the Schedule is a built up area of 20,000 square metres and the upper limit is 1,50,000 square metres. It cannot be doubted that the environmental impact of a construction of 1,50,000 square metres is drastically more than construction of 20,000 square metres. If the appellant" argument is accepted in totality, a project proponent could potentially secure an EC for constructing 20,000 square metres and by "amendment" steadily increase the area of construction up to 1,50,000 square metres without submitting an updated Form 1 or any substantive review by the SEACThe draft amendment was not adopted in subsequent amendments to the EIA Notification. We find considerable merit in the observations of the committee that the requirement of an EC at the time of expansion forms a critical step in the environmental clearance regime. According to the committee, it assists officials not just in evaluating and mitigating any adverse impact caused by the expansion but also in assessing whether the project proponent is in compliance with their existing obligations. Crucially, any form of expansion necessarily puts a strain on the local environment and infrastructure and needs to be carefully evaluated in a holistic mannerThe EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It cannot be disputed that as the size of the project increases, so does the magnitude of the project" environmental impact. This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable. It is true that there may exist certain situations where the expansion sought by a project proponent is truly marginal or the environmental impact of such expansion is non-existent. However, it is not for this Court to lay down a bright-line test as to what constitutes a "marginal" increase and what constitutes a material increase warranting a fresh Form 1 and scrutiny by the Expert Appraisal Committee. If the government in its wisdom were to prescribe that a one-time "marginal"increase (e.g. 5% or 10%) in project size, within the threshold limit stipulated in the Schedule, could be subject to a lower standard of scrutiny without diluting the urgent need for environmental protection, conceivably this Court may give effect to such a provision. This would be subject to any challenge on the ground of their being a violation of the precautionary principle. However, as the EIA Notification currently stands, an expansion within the limits prescribed by the Schedules would be subject to the procedure set out in paragraph 7(ii)17. At the time of the second increase, the total construction area of the appellant" project was enlarged from 32,395.17 square metres to 40,480.88 square metres. As a result of the expansion, the appellant constructed sixteen additional flats which were sold at the prevailing market rate. The appellant did not comply with the procedure set out under paragraph 7(ii) of the EIA Notification but rather sought an "amendment" to the EC. The third respondent did not require the appellant to submit an updated Form 1 nor was the proposal processed and evaluated by the fourth respondent. The "amendment"to the EC dated 13 March 2014 does not discuss the potential environmental impact of the increase in construction area, but merely records that the construction area now stands at 40,480.88 square metres. The procedure set out under paragraph 7(ii) of the EIA Notification exists to ensure that where a project is expanded in size, the environmental impact on the surrounding area is evaluated holistically considering all the relevant factors including air and water availability and pollution, management of solid and wet waste and the urban carrying capacity of the area. This was not done in the case of the appellant" s project. It was not open to the third respondent to grant an "amendment" to the EC without following the procedure set out in paragraph 7(ii) of the EIA Notification18. We further note that as on the date of the impugned order construction at the project site had already been completed. A core tenet underlying the entire scheme of the EIA Notification is that construction should not be executed until ample scientific evidence has been compiled so as to understand the true environmental impact of a project. By completing the construction of the project, the appellant denied the third and fourth respondents the ability to evaluate the environmental impact and suggest methods to mitigate any environmental damage. At this stage, only remedial measures may be taken. The NGT has already directed the appellant to deposit Rupees one crore and has set up an expert committee to evaluate the impact of the appellant"s project and suggest remedial measures.
|
E.P.F.Commissioner Vs. O.L.Of Esskay Pharmaceuticals Ltd | does not afford any clear solution in this case.”“It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.” 40. In Kumaon Motor Owners Union Ltd. v. State of Uttar Pradesh (1966) 2 SCR 121 , there was conflict between the provisions contained in Rule 131(2) (g) and (i) of the Defence of India Rules, 1962 and Chapter IV-A of the Motor Vehicles Act, 1939. Section 68-B gave overriding effect to the provisions of Chapter IV-A of the Motor Vehicles Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions contained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions contained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act. 41. In Ashok Marketing Limited v. Punjab National Bank (1990) 4 SCC 406 , the Constitution Bench considered some of the precedents on the interpretation of statutes and observed : “The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein.” (emphasis supplied) 42. It is also important to bear in mind that even before the insertion of proviso to Sections 529(1), 529(3) and Section 529A and amendment of Section 530(1), all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund established for welfare of the employees were payable in priority to all other debts in a winding up proceedings [Section 530(1)(f)]. Even the wages, salary and other dues payable to the workers and employees were payable in priority to all other debts. What Parliament has done by these amendments is to define the term “workmens dues” and to place them at par with debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to Section 529(1). However, these amendments, though subsequent in point of time, cannot be interpreted in a manner which would result in diluting the mandate of Section 11 of the EPF Act, sub-section (2) whereof declares that the amount due from an employer shall be the first charge on the assets of the establishment and shall be paid in priority to all other debts. The words “all other debts” used in Section 11(2) would necessarily include the debts due to secured creditors like banks, financial institutions etc. The mere ranking of the dues of workers at par with debts due to secured creditors cannot lead to an inference that Parliament intended to create first charge in favour of the secured creditors and give priority to the debts due to secured creditors over the amount due from the employer under the EPF Act.43. At the cost of repetition, we would emphasize that in terms of Section 530(1), all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority, all wages or salary or any employee, in respect of the services rendered to the company and due for a period not exceeding 4 months all accrued holiday remuneration etc. and all sums due to any employee from provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company are payable in priority to all other debts. This provision existed when Section 11(2) was inserted in the EPF Act by Act No. 40 of 1973 and any amount due from an employer in respect of the employees contribution was declared first charge on the assets of the establishment and became payable in priority to all other debts. However, while inserting Section 529A in the Companies Act by Act No.35 of 1985 Parliament, in its wisdom, did not declare the workmens dues (this expression includes various dues including provident fund) as first charge. The effect of the amendment made in the Companies Act in 1985 is only to expand the scope of the dues of workmen and place them at par with the debts due to secured creditors and there is no reason to interpret this amendment as giving priority to the debts due to secured creditor over the dues of provident fund payable by an employer. Of course, after the amount due from an employer under the EPF Act is paid, the other dues of the workers will be treated at par with the debts due to secured creditors and payment thereof will be regulated by the provisions contained in Section 529(1) read with Section 529(3), 529A and 530 of the Companies Act.44. In view of what we have observed above on the interpretation of Section 11 of the EPF Act and Sections 529, 529A and 530 of the Companies Act, the judgment of the Division Bench of the Gujarat High Court, which turned on the interpretation of Section 94 of the Employees State Insurance Act and Sections 529A and 530 of the Companies Act and on which reliance has been placed by the learned Company Judge and the Division Bench of the High Court while dismissing the applications filed by the appellant, cannot be treated as laying down the correct law. 45. In the result, | 1[ds]The argument of Shri Gaurav Agrawal that the non obstante clause contained in the subsequent legislation, i.e. Section 529A(1) of the Companies Act should prevail over similar clause contained in an earlier legislation, i.e. Section 11(2) of the EPF Act sounds attractive, but if the two provisions are read in the light of the objects sought to be achieved by the legislature by enacting the same, it is not possible to agree with the learned counsel. As noted earlier, the object of the amendment made in the EPF Act by Act No.40 of 1973 was to treat the dues payable by the employer as first charge on the assets of the establishment and to ensure that the same are recovered in priority to other debts. As against this, the amendments made in the Companies Act in 1985 are intended to create a charge pari passu in favour of the workmen on every security available to the secured creditors of the company for recovery of their debts. There is nothing in the language of Section 529A which may give an indication that legislature wanted to create first charge in respect of the workmens dues, as defined in Sections 529(3)(b) and 529A and debts due to the securedis also important to bear in mind that even before the insertion of proviso to Sections 529(1), 529(3) and Section 529A and amendment of Section 530(1), all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund established for welfare of the employees were payable in priority to all other debts in a winding up proceedings [Section 530(1)(f)]. Even the wages, salary and other dues payable to the workers and employees were payable in priority to all other debts. What Parliament has done by these amendments is to define the termnd to place them at par with debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to Section 529(1). However, these amendments, though subsequent in point of time, cannot be interpreted in a manner which would result in diluting the mandate of Section 11 of the EPF Act, sub-section (2) whereof declares that the amount due from an employer shall be the first charge on the assets of the establishment and shall be paid in priority to all other debts. The wordsused in Section 11(2) would necessarily include the debts due to secured creditors like banks, financial institutions etc. The mere ranking of the dues of workers at par with debts due to secured creditors cannot lead to an inference that Parliament intended to create first charge in favour of the secured creditors and give priority to the debts due to secured creditors over the amount due from the employer under the EPF Act.43. At the cost of repetition, we would emphasize that in terms of Section 530(1), all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority, all wages or salary or any employee, in respect of the services rendered to the company and due for a period not exceeding 4 months all accrued holiday remuneration etc. and all sums due to any employee from provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company are payable in priority to all other debts. This provision existed when Section 11(2) was inserted in the EPF Act by Act No. 40 of 1973 and any amount due from an employer in respect of the employees contribution was declared first charge on the assets of the establishment and became payable in priority to all other debts. However, while inserting Section 529A in the Companies Act by Act No.35 of 1985 Parliament, in its wisdom, did not declare the workmens dues (this expression includes various dues including provident fund) as first charge. The effect of the amendment made in the Companies Act in 1985 is only to expand the scope of the dues of workmen and place them at par with the debts due to secured creditors and there is no reason to interpret this amendment as giving priority to the debts due to secured creditor over the dues of provident fund payable by an employer. Of course, after the amount due from an employer under the EPF Act is paid, the other dues of the workers will be treated at par with the debts due to secured creditors and payment thereof will be regulated by the provisions contained in Section 529(1) read with Section 529(3), 529A and 530 of the Companies Act.44. In view of what we have observed above on the interpretation of Section 11 of the EPF Act and Sections 529, 529A and 530 of the Companies Act, the judgment of the Division Bench of the Gujarat High Court, which turned on the interpretation of Section 94 of the Employees State Insurance Act and Sections 529A and 530 of the Companies Act and on which reliance has been placed by the learned Company Judge and the Division Bench of the High Court while dismissing the applications filed by the appellant, cannot be treated as laying down the correct law. | 1 | 13,720 | 988 | ### 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:
does not afford any clear solution in this case.”“It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.” 40. In Kumaon Motor Owners Union Ltd. v. State of Uttar Pradesh (1966) 2 SCR 121 , there was conflict between the provisions contained in Rule 131(2) (g) and (i) of the Defence of India Rules, 1962 and Chapter IV-A of the Motor Vehicles Act, 1939. Section 68-B gave overriding effect to the provisions of Chapter IV-A of the Motor Vehicles Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions contained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions contained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act. 41. In Ashok Marketing Limited v. Punjab National Bank (1990) 4 SCC 406 , the Constitution Bench considered some of the precedents on the interpretation of statutes and observed : “The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein.” (emphasis supplied) 42. It is also important to bear in mind that even before the insertion of proviso to Sections 529(1), 529(3) and Section 529A and amendment of Section 530(1), all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund established for welfare of the employees were payable in priority to all other debts in a winding up proceedings [Section 530(1)(f)]. Even the wages, salary and other dues payable to the workers and employees were payable in priority to all other debts. What Parliament has done by these amendments is to define the term “workmens dues” and to place them at par with debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to Section 529(1). However, these amendments, though subsequent in point of time, cannot be interpreted in a manner which would result in diluting the mandate of Section 11 of the EPF Act, sub-section (2) whereof declares that the amount due from an employer shall be the first charge on the assets of the establishment and shall be paid in priority to all other debts. The words “all other debts” used in Section 11(2) would necessarily include the debts due to secured creditors like banks, financial institutions etc. The mere ranking of the dues of workers at par with debts due to secured creditors cannot lead to an inference that Parliament intended to create first charge in favour of the secured creditors and give priority to the debts due to secured creditors over the amount due from the employer under the EPF Act.43. At the cost of repetition, we would emphasize that in terms of Section 530(1), all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority, all wages or salary or any employee, in respect of the services rendered to the company and due for a period not exceeding 4 months all accrued holiday remuneration etc. and all sums due to any employee from provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company are payable in priority to all other debts. This provision existed when Section 11(2) was inserted in the EPF Act by Act No. 40 of 1973 and any amount due from an employer in respect of the employees contribution was declared first charge on the assets of the establishment and became payable in priority to all other debts. However, while inserting Section 529A in the Companies Act by Act No.35 of 1985 Parliament, in its wisdom, did not declare the workmens dues (this expression includes various dues including provident fund) as first charge. The effect of the amendment made in the Companies Act in 1985 is only to expand the scope of the dues of workmen and place them at par with the debts due to secured creditors and there is no reason to interpret this amendment as giving priority to the debts due to secured creditor over the dues of provident fund payable by an employer. Of course, after the amount due from an employer under the EPF Act is paid, the other dues of the workers will be treated at par with the debts due to secured creditors and payment thereof will be regulated by the provisions contained in Section 529(1) read with Section 529(3), 529A and 530 of the Companies Act.44. In view of what we have observed above on the interpretation of Section 11 of the EPF Act and Sections 529, 529A and 530 of the Companies Act, the judgment of the Division Bench of the Gujarat High Court, which turned on the interpretation of Section 94 of the Employees State Insurance Act and Sections 529A and 530 of the Companies Act and on which reliance has been placed by the learned Company Judge and the Division Bench of the High Court while dismissing the applications filed by the appellant, cannot be treated as laying down the correct law. 45. In the result,
### Response:
1
### Explanation:
The argument of Shri Gaurav Agrawal that the non obstante clause contained in the subsequent legislation, i.e. Section 529A(1) of the Companies Act should prevail over similar clause contained in an earlier legislation, i.e. Section 11(2) of the EPF Act sounds attractive, but if the two provisions are read in the light of the objects sought to be achieved by the legislature by enacting the same, it is not possible to agree with the learned counsel. As noted earlier, the object of the amendment made in the EPF Act by Act No.40 of 1973 was to treat the dues payable by the employer as first charge on the assets of the establishment and to ensure that the same are recovered in priority to other debts. As against this, the amendments made in the Companies Act in 1985 are intended to create a charge pari passu in favour of the workmen on every security available to the secured creditors of the company for recovery of their debts. There is nothing in the language of Section 529A which may give an indication that legislature wanted to create first charge in respect of the workmens dues, as defined in Sections 529(3)(b) and 529A and debts due to the securedis also important to bear in mind that even before the insertion of proviso to Sections 529(1), 529(3) and Section 529A and amendment of Section 530(1), all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund established for welfare of the employees were payable in priority to all other debts in a winding up proceedings [Section 530(1)(f)]. Even the wages, salary and other dues payable to the workers and employees were payable in priority to all other debts. What Parliament has done by these amendments is to define the termnd to place them at par with debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to Section 529(1). However, these amendments, though subsequent in point of time, cannot be interpreted in a manner which would result in diluting the mandate of Section 11 of the EPF Act, sub-section (2) whereof declares that the amount due from an employer shall be the first charge on the assets of the establishment and shall be paid in priority to all other debts. The wordsused in Section 11(2) would necessarily include the debts due to secured creditors like banks, financial institutions etc. The mere ranking of the dues of workers at par with debts due to secured creditors cannot lead to an inference that Parliament intended to create first charge in favour of the secured creditors and give priority to the debts due to secured creditors over the amount due from the employer under the EPF Act.43. At the cost of repetition, we would emphasize that in terms of Section 530(1), all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority, all wages or salary or any employee, in respect of the services rendered to the company and due for a period not exceeding 4 months all accrued holiday remuneration etc. and all sums due to any employee from provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company are payable in priority to all other debts. This provision existed when Section 11(2) was inserted in the EPF Act by Act No. 40 of 1973 and any amount due from an employer in respect of the employees contribution was declared first charge on the assets of the establishment and became payable in priority to all other debts. However, while inserting Section 529A in the Companies Act by Act No.35 of 1985 Parliament, in its wisdom, did not declare the workmens dues (this expression includes various dues including provident fund) as first charge. The effect of the amendment made in the Companies Act in 1985 is only to expand the scope of the dues of workmen and place them at par with the debts due to secured creditors and there is no reason to interpret this amendment as giving priority to the debts due to secured creditor over the dues of provident fund payable by an employer. Of course, after the amount due from an employer under the EPF Act is paid, the other dues of the workers will be treated at par with the debts due to secured creditors and payment thereof will be regulated by the provisions contained in Section 529(1) read with Section 529(3), 529A and 530 of the Companies Act.44. In view of what we have observed above on the interpretation of Section 11 of the EPF Act and Sections 529, 529A and 530 of the Companies Act, the judgment of the Division Bench of the Gujarat High Court, which turned on the interpretation of Section 94 of the Employees State Insurance Act and Sections 529A and 530 of the Companies Act and on which reliance has been placed by the learned Company Judge and the Division Bench of the High Court while dismissing the applications filed by the appellant, cannot be treated as laying down the correct law.
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State of Punjab and Another Vs. Murlidhar Mahabir Parshad | S.T.C. 976). The points which arose in that case for determination were : (1) when can a proceeding be said to commence and (2) if a proceeding has commenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being time-barred. The appellant there was a registered dealer, carrying on business in bidis. For the year 1949-50, i.e., for the period from October 22, 1949 to November 9, 1950, he submitted only one return on October 5, 1950, for one quarter and defaulted in respect of the other quarters. He was served a notice on August 13, 1954, under section 11(1) and (2) of the C.P. and Berar Sales Tax Act, 1947, in respect of the turnover for the said period. He filed the returns subsequently, but contended that the proceedings before the Sales Tax, Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year 1950-51 he had filed no return at all and was served a notice on October 15, 1954, under section 11(4) of the Act. That notice was within three years from October 16, 1951, which fell within the fourth quarter of the year in question. He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. It was held by this Court that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was also held that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover : (1) he submits a return by the date prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return; (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under section 11(2), but does not finalise the assessment; (3) the registered dealer does not submit a return, the Commissioner issues a notice under section 10(3) and section 11(4) of the Act; and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. It was held by this Court that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act, and that the acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the Act. It was held in the first case that the Tribunal had no jurisdiction to issue a notice under section 11-A with respect to the quarters other than that covered by the return made by the appellant. In the second case the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450 of the report, the Court observed that in a case where a return has been made, but the Commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. The Court Proceeded to observe that even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under section 10(3) or under section 11(4), the proceedings would be pending till the final assessment is made. This decision therefore clearly lays down the principle that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period of three years though an assessment order is finalised after the expiry of such period. In other words, the assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(4) or 10(3), and if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise. The view expressed by this Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), has been subsequently followed by this Court in a recent case, State of Punjab & Others v. M/s. Tara Chand Lajpat Rai (Civil Appeal No. 1080 of 1965 decided on 28-2-1967; [1967] 19 S.T.C. 493), in which the material facts were almost parallel to those in the present case. In view of the principle laid down by these decisions we hold in the present case that the proceedings for assessment of sales tax taken against the respondent by the Assessing Authority are legally valid, because the assessment in question being for the year 1957-58, the notice with regard thereto in Form S.T. XIV had been issued and served upon the respondent on January 2, 1960, and proceedings for assessment were initiated in time within the period prescribed under section 11(5) of the Act. It follows therefore that the respondent has made out no case for the grant of a writ under Article 226 of the Constitution for quashing the proceedings for assessment of sales tax for the year 1957-58 taken against him by the appellants. | 1[ds]This decision therefore clearly lays down the principle that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period of three years though an assessment order is finalised after the expiry of such period. In other words, the assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(4) or 10(3), and if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation wouldview of the principle laid down by these decisions we hold in the present case that the proceedings for assessment of sales tax taken against the respondent by the Assessing Authority are legally valid, because the assessment in question being for the yearthe notice with regard thereto in Form S.T. XIV had been issued and served upon the respondent on January 2, 1960, and proceedings for assessment were initiated in time within the period prescribed under section 11(5) of the Act. It follows therefore that the respondent has made out no case for the grant of a writ under Article 226 of the Constitution for quashing the proceedings for assessment of sales tax for the yeartaken against him by the appellants. | 1 | 2,415 | 272 | ### 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:
S.T.C. 976). The points which arose in that case for determination were : (1) when can a proceeding be said to commence and (2) if a proceeding has commenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being time-barred. The appellant there was a registered dealer, carrying on business in bidis. For the year 1949-50, i.e., for the period from October 22, 1949 to November 9, 1950, he submitted only one return on October 5, 1950, for one quarter and defaulted in respect of the other quarters. He was served a notice on August 13, 1954, under section 11(1) and (2) of the C.P. and Berar Sales Tax Act, 1947, in respect of the turnover for the said period. He filed the returns subsequently, but contended that the proceedings before the Sales Tax, Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year 1950-51 he had filed no return at all and was served a notice on October 15, 1954, under section 11(4) of the Act. That notice was within three years from October 16, 1951, which fell within the fourth quarter of the year in question. He also filed another writ petition for a similar relief in respect of that year. The contention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer the proceedings commence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. It was held by this Court that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assessment. It was also held that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover : (1) he submits a return by the date prescribed and pays the tax due in terms of the said return, the Commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return; (2) the Commissioner is not satisfied with the correctness of the return, he issues a notice to him under section 11(2), but does not finalise the assessment; (3) the registered dealer does not submit a return, the Commissioner issues a notice under section 10(3) and section 11(4) of the Act; and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. It was held by this Court that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act, and that the acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the Act. It was held in the first case that the Tribunal had no jurisdiction to issue a notice under section 11-A with respect to the quarters other than that covered by the return made by the appellant. In the second case the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450 of the report, the Court observed that in a case where a return has been made, but the Commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. The Court Proceeded to observe that even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under section 10(3) or under section 11(4), the proceedings would be pending till the final assessment is made. This decision therefore clearly lays down the principle that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period of three years though an assessment order is finalised after the expiry of such period. In other words, the assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(4) or 10(3), and if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise. The view expressed by this Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), has been subsequently followed by this Court in a recent case, State of Punjab & Others v. M/s. Tara Chand Lajpat Rai (Civil Appeal No. 1080 of 1965 decided on 28-2-1967; [1967] 19 S.T.C. 493), in which the material facts were almost parallel to those in the present case. In view of the principle laid down by these decisions we hold in the present case that the proceedings for assessment of sales tax taken against the respondent by the Assessing Authority are legally valid, because the assessment in question being for the year 1957-58, the notice with regard thereto in Form S.T. XIV had been issued and served upon the respondent on January 2, 1960, and proceedings for assessment were initiated in time within the period prescribed under section 11(5) of the Act. It follows therefore that the respondent has made out no case for the grant of a writ under Article 226 of the Constitution for quashing the proceedings for assessment of sales tax for the year 1957-58 taken against him by the appellants.
### Response:
1
### Explanation:
This decision therefore clearly lays down the principle that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period of three years though an assessment order is finalised after the expiry of such period. In other words, the assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(4) or 10(3), and if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation wouldview of the principle laid down by these decisions we hold in the present case that the proceedings for assessment of sales tax taken against the respondent by the Assessing Authority are legally valid, because the assessment in question being for the yearthe notice with regard thereto in Form S.T. XIV had been issued and served upon the respondent on January 2, 1960, and proceedings for assessment were initiated in time within the period prescribed under section 11(5) of the Act. It follows therefore that the respondent has made out no case for the grant of a writ under Article 226 of the Constitution for quashing the proceedings for assessment of sales tax for the yeartaken against him by the appellants.
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Unlon Of Lndla & Others Vs. Sripati Ranjan Biswas And Another | imposed on you by the Disciplinary Authority (viz the Collector of Customs, Calcutta is not excessive or severe and that your appeal should be rejected. The President hereby orders accordingly. A copy of the U. P. S. Cs. letter No. F. 3/56/68-61 dated 26-10-1968 and a copy of the order passed by the Minister on behalf of the President are enclosed herewith."4. The respondent in a third round of litigation challenged the above order in the High Court under Article 226 of the Constitution. The learned single Judge dismissed the same but in appeal against that judgment the Division Bench set aside the order of the learned single Judge and quashed the aforesaid order of May 9, 1969. Hence this appeal by the Union of India.5. The High Court held that the powers and duties which the President is required to exercise as an appellate authority under Rule 23 (2) (b) of the Rules are not constitutional duties imposed upon the President under the Constitution. According to the High Court the functions and duties of the President as an appellate authority under the said Rules are not part of business of the Government of India nor are they part of the Presidents duties under the Constitution. The High Court, therefore, came to the conclusion that the Minister had no right to deal with the appeal which had been preferred to the President of India under the said Rules.6. The above question is squarely covered by a recent decision of this Court in Samsher Singh v. State of Punjab. AIR 1974 SC 2192 = (1974 Lab IC 1380). Even so, Mr. A. K. Sen appearing on behalf of the respondent submits that there is still an area which has not been covered by the said decision. Mr. Sen submits that hearing of an appeal under a statutory rule as in this case, is a quasi-judicial act and, therefore, it cannot be delegated by the President to the Minister.7. It is, however clear that in Samsher Singhs case AIR 1974 SC 2192 = (1974 Lab IC 1380) the question related to the termination of service of a subordinate Judge under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and that of another officer in the Punjab Civil Service (Judicial Branch) under Rule 7 (3) in Part D of the Punjab Civil Services (Judicial Branch) Rules,1951 as amended from time to time. It is not disputed that the above two Rules under which the termination took place are statutory Rules.8. The question which is raised in this appeal relates to the domain of appointment or dismissal of a Government servant. Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhs case. The legal position is brought out very clearly in para. 57 of the report in Shamsher Singh, AIR 1974 SC 2192 = (1974 Lab IC 1380) (supra) in the following extracts :-"Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution".Again in Para. 48 the Court observed-"The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor."We are, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969. | 1[ds]Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhsare, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969. | 1 | 1,749 | 302 | ### 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:
imposed on you by the Disciplinary Authority (viz the Collector of Customs, Calcutta is not excessive or severe and that your appeal should be rejected. The President hereby orders accordingly. A copy of the U. P. S. Cs. letter No. F. 3/56/68-61 dated 26-10-1968 and a copy of the order passed by the Minister on behalf of the President are enclosed herewith."4. The respondent in a third round of litigation challenged the above order in the High Court under Article 226 of the Constitution. The learned single Judge dismissed the same but in appeal against that judgment the Division Bench set aside the order of the learned single Judge and quashed the aforesaid order of May 9, 1969. Hence this appeal by the Union of India.5. The High Court held that the powers and duties which the President is required to exercise as an appellate authority under Rule 23 (2) (b) of the Rules are not constitutional duties imposed upon the President under the Constitution. According to the High Court the functions and duties of the President as an appellate authority under the said Rules are not part of business of the Government of India nor are they part of the Presidents duties under the Constitution. The High Court, therefore, came to the conclusion that the Minister had no right to deal with the appeal which had been preferred to the President of India under the said Rules.6. The above question is squarely covered by a recent decision of this Court in Samsher Singh v. State of Punjab. AIR 1974 SC 2192 = (1974 Lab IC 1380). Even so, Mr. A. K. Sen appearing on behalf of the respondent submits that there is still an area which has not been covered by the said decision. Mr. Sen submits that hearing of an appeal under a statutory rule as in this case, is a quasi-judicial act and, therefore, it cannot be delegated by the President to the Minister.7. It is, however clear that in Samsher Singhs case AIR 1974 SC 2192 = (1974 Lab IC 1380) the question related to the termination of service of a subordinate Judge under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and that of another officer in the Punjab Civil Service (Judicial Branch) under Rule 7 (3) in Part D of the Punjab Civil Services (Judicial Branch) Rules,1951 as amended from time to time. It is not disputed that the above two Rules under which the termination took place are statutory Rules.8. The question which is raised in this appeal relates to the domain of appointment or dismissal of a Government servant. Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhs case. The legal position is brought out very clearly in para. 57 of the report in Shamsher Singh, AIR 1974 SC 2192 = (1974 Lab IC 1380) (supra) in the following extracts :-"Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution".Again in Para. 48 the Court observed-"The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor."We are, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969.
### Response:
1
### Explanation:
Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhsare, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969.
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Commissioner Central Excise Vs. M/S.United Spirits Ltd | to pay excise duty, sales tax, etc. because the activity did not constitute manufacture.”29. At this juncture, it is obligatory to state that revenue has heavily relied upon on Pepsi Foods Ltd. (supra). In the said case the Court had found that the consideration payable as royalty was an inevitable consequence of the sale of the concentrate and in such circumstances the price paid for the concentrate was not the sole consideration paid by the purchaser. The terms of agreement had obligated the bottler to purchase the concentrate from the assessee alone, use the assessees’ trade mark on the bottled beverage and also pay royalty for assessees’ trade mark at the specified percentage of the maximum retail price of each bottle. In the given circumstances and evidence available, it was held that the price actually paid for sale of concentrate was not to be the determinative factor as the price paid for the sale of concentrate, i.e., invoice would not be determinative, as the royalty payment was inseparably linked with the sale consideration paid for the concentrate. The indelible nexus and connect was established to club the two considerations.30. The respondent, in its turn, has placed reliance on Shyam Oil Cake Ltd. (supra) and contended that mere separate tariff entry is not indicative whether the same amounts to manufacture, for tariff entry can be merely for the purpose of identifying the product and the rate applicable to it. In such case, it would not have the effect of rendering the specified commodity to be excisable. Section 2(f) defines “manufacture” and by deeming effect, a process can amount to manufacture. Albeit, for a deeming provision to come into play, it must be specifically stated that a particular process amounts to manufacture. The respondent has also placed reliance on Circular no. 495/61/99-CX-3 dated 22nd November, 1998, but the said circular relates to compound preparation during the course of manufacture of agarbati. In the context of the said product, clarification was issued. It is noticeable that the respondent had pleaded a different factual matrix which has been accepted by the tribunal, albeit, without referring to specific details. General observation and broad brush approach need not reflect true consideration paid for all transactions. A far greater and deeper scrutiny of facts is required before forming any opinion, one way or the other. It would be wrong to be assumptuous without full factual matrix being lucent and absolutely clear.31. Recently, in The Additional Commissioner of Commercial Taxes, Bangalore v. Ayili Stone Industries Etc. Etc. (Civil Appeal Nos. 1983-2039 of 2016 dated 18.10.2016)the Court was dealing with the issue of grant of exemption on polished granite stone and the view of the revenue that the polished and unpolished granite stones are under separate Entries in the second schedule to the Karnataka Sales Tax Act, 1957. The question arose before this Court pertained to interpretation of polished and granite stones and in that context the concept of manufacture and after referring to various judgments, it held that:-“28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words “other titles”. A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.”32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy. | 1[ds]32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy. | 1 | 10,208 | 305 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
to pay excise duty, sales tax, etc. because the activity did not constitute manufacture.”29. At this juncture, it is obligatory to state that revenue has heavily relied upon on Pepsi Foods Ltd. (supra). In the said case the Court had found that the consideration payable as royalty was an inevitable consequence of the sale of the concentrate and in such circumstances the price paid for the concentrate was not the sole consideration paid by the purchaser. The terms of agreement had obligated the bottler to purchase the concentrate from the assessee alone, use the assessees’ trade mark on the bottled beverage and also pay royalty for assessees’ trade mark at the specified percentage of the maximum retail price of each bottle. In the given circumstances and evidence available, it was held that the price actually paid for sale of concentrate was not to be the determinative factor as the price paid for the sale of concentrate, i.e., invoice would not be determinative, as the royalty payment was inseparably linked with the sale consideration paid for the concentrate. The indelible nexus and connect was established to club the two considerations.30. The respondent, in its turn, has placed reliance on Shyam Oil Cake Ltd. (supra) and contended that mere separate tariff entry is not indicative whether the same amounts to manufacture, for tariff entry can be merely for the purpose of identifying the product and the rate applicable to it. In such case, it would not have the effect of rendering the specified commodity to be excisable. Section 2(f) defines “manufacture” and by deeming effect, a process can amount to manufacture. Albeit, for a deeming provision to come into play, it must be specifically stated that a particular process amounts to manufacture. The respondent has also placed reliance on Circular no. 495/61/99-CX-3 dated 22nd November, 1998, but the said circular relates to compound preparation during the course of manufacture of agarbati. In the context of the said product, clarification was issued. It is noticeable that the respondent had pleaded a different factual matrix which has been accepted by the tribunal, albeit, without referring to specific details. General observation and broad brush approach need not reflect true consideration paid for all transactions. A far greater and deeper scrutiny of facts is required before forming any opinion, one way or the other. It would be wrong to be assumptuous without full factual matrix being lucent and absolutely clear.31. Recently, in The Additional Commissioner of Commercial Taxes, Bangalore v. Ayili Stone Industries Etc. Etc. (Civil Appeal Nos. 1983-2039 of 2016 dated 18.10.2016)the Court was dealing with the issue of grant of exemption on polished granite stone and the view of the revenue that the polished and unpolished granite stones are under separate Entries in the second schedule to the Karnataka Sales Tax Act, 1957. The question arose before this Court pertained to interpretation of polished and granite stones and in that context the concept of manufacture and after referring to various judgments, it held that:-“28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words “other titles”. A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.”32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy.
### Response:
1
### Explanation:
32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy.
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Shyamsunder Tikam Shet & Anr Vs. State Of Maharashtra & Anr | the payment of the village revenue, while the village lands which he has to manage in accordance with the restrictions mentioned in the Kabulayat fall under three distinct classes. These are (1) Dharekari lands the tenants of which have a transferable and heritable right paying Dhara alone to the Khot; (2) Khot-nisbat lands which are either in the hands of permanent occupancy tenants or tenants with less permanent right paying Fayda to the Khot and the Government assessment; and (3) Khoti Khasgi lands, private lands, in the possession of the Khot of which he can make such use as he pleases."8. It was contended on behalf of the appellants that the Sud of 1869 at p. 124-A of the paper book was an important document and the Tribunal has not correctly appreciated the meaning of the words Khalsa and Varkas. We do not wish to express at this stage any concluded opinion on the construction of this document. We wish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forest land.The legal position is correctly summarised in Dandekars Law of Land Tenures, Vol. 1, pp. 287-288 as under:"Section 41 of the Land Revenue Code declares that the right to all trees, bushwood, Jungle or other natural product, wherever growing, except in so far as the same may be the property of individual capable of holding property, vests in Government. Government proprietorship of all trees is the rule and private rights or proprietorship, if any, are merely exceptions to the rule.The question whether a Khot has got the proprietary or any other limited right to the trees standing or growing on lands in his Khoti village depends (1) upon the Khots interest in the soil (2) upon any express grant or concession, and (3) upon the customary user, if any. In the first case, if the Khot is the proprietor of the soil, which is very hardly the case, he is the proprietor of all the trees standing or growing on the lands in his Khoti village. The trees upon the land, and the right to cut down and sell the trees is incident to proprietorship of the land. In such a case the principle is quicquid plantatur solo solo cedit. Ordinarily the khot having no ownership over the soil, it has been held that he is not entitled to cut timber either on uncultivated or on forest lands. Government has the right to take such lands to make a forest revenue under the customary law as well as under positive enactments."It is necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).10. In Sadashiv Parshram Risbud v. Secretary of State for India, 20 Bom LR 141 = (AIR 1917 Bom 38 ) the question arose whether the khots were entitled to recover the sale proceeds of certain teak trees sold by Government grown on Varkas lands. In the alternative the khots claimed one-third share of the sale proceeds relying upon the clause in the Kabulyat. It was held by the Bombay High Court that as between the khots and the Government the matter in dispute was concluded by the kabulyat and the khot could not obtain more than one-third of the proceeds of the sale of the trees. It was held by Shah, J., that the Dunlops Proclamation could apply to Varkas lands in a khoti village, but if any person claimed the benefit of the Proclamation he should prove that the land, on which the trees stood, was his in a popular sense, that is, it was sufficiently marked out as being in his permanent occupation in his permanent occupation in his own right so as to make it properly describable as his land. On the facts of that case it was held that the khots had no claim to the teak trees under Section 40 of the Land Revenue Code and they had failed to prove that they were entitled to the benefit of Dunlops Proclamation in respect of the Varkas lands in question.11. In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the following points:(1) Whether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.12. We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment. | 0[ds]6. The legal position is well established that khotis in the district of Kolaba are hereditary farmers of land revenue and are entitled to hold villages as khotis on their entering every year into the customarywish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forestis necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the followingWhether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment. | 0 | 3,186 | 420 | ### Instruction:
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the payment of the village revenue, while the village lands which he has to manage in accordance with the restrictions mentioned in the Kabulayat fall under three distinct classes. These are (1) Dharekari lands the tenants of which have a transferable and heritable right paying Dhara alone to the Khot; (2) Khot-nisbat lands which are either in the hands of permanent occupancy tenants or tenants with less permanent right paying Fayda to the Khot and the Government assessment; and (3) Khoti Khasgi lands, private lands, in the possession of the Khot of which he can make such use as he pleases."8. It was contended on behalf of the appellants that the Sud of 1869 at p. 124-A of the paper book was an important document and the Tribunal has not correctly appreciated the meaning of the words Khalsa and Varkas. We do not wish to express at this stage any concluded opinion on the construction of this document. We wish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forest land.The legal position is correctly summarised in Dandekars Law of Land Tenures, Vol. 1, pp. 287-288 as under:"Section 41 of the Land Revenue Code declares that the right to all trees, bushwood, Jungle or other natural product, wherever growing, except in so far as the same may be the property of individual capable of holding property, vests in Government. Government proprietorship of all trees is the rule and private rights or proprietorship, if any, are merely exceptions to the rule.The question whether a Khot has got the proprietary or any other limited right to the trees standing or growing on lands in his Khoti village depends (1) upon the Khots interest in the soil (2) upon any express grant or concession, and (3) upon the customary user, if any. In the first case, if the Khot is the proprietor of the soil, which is very hardly the case, he is the proprietor of all the trees standing or growing on the lands in his Khoti village. The trees upon the land, and the right to cut down and sell the trees is incident to proprietorship of the land. In such a case the principle is quicquid plantatur solo solo cedit. Ordinarily the khot having no ownership over the soil, it has been held that he is not entitled to cut timber either on uncultivated or on forest lands. Government has the right to take such lands to make a forest revenue under the customary law as well as under positive enactments."It is necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).10. In Sadashiv Parshram Risbud v. Secretary of State for India, 20 Bom LR 141 = (AIR 1917 Bom 38 ) the question arose whether the khots were entitled to recover the sale proceeds of certain teak trees sold by Government grown on Varkas lands. In the alternative the khots claimed one-third share of the sale proceeds relying upon the clause in the Kabulyat. It was held by the Bombay High Court that as between the khots and the Government the matter in dispute was concluded by the kabulyat and the khot could not obtain more than one-third of the proceeds of the sale of the trees. It was held by Shah, J., that the Dunlops Proclamation could apply to Varkas lands in a khoti village, but if any person claimed the benefit of the Proclamation he should prove that the land, on which the trees stood, was his in a popular sense, that is, it was sufficiently marked out as being in his permanent occupation in his permanent occupation in his own right so as to make it properly describable as his land. On the facts of that case it was held that the khots had no claim to the teak trees under Section 40 of the Land Revenue Code and they had failed to prove that they were entitled to the benefit of Dunlops Proclamation in respect of the Varkas lands in question.11. In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the following points:(1) Whether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.12. We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment.
### Response:
0
### Explanation:
6. The legal position is well established that khotis in the district of Kolaba are hereditary farmers of land revenue and are entitled to hold villages as khotis on their entering every year into the customarywish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forestis necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the followingWhether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment.
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Sunaina Sharma Vs. The State Of Jammu And Kashmir | fulfilling the other requirement of the rules.12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.13. In Suraj Prakash Gupta’s case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12. Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority. Note-1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.18. The Division Bench relied upon the definition of the ‘member of service’ as defined in Section 2(e) of the Civil Service Rules, according to which the ‘member of service’ is a person who holds a pensionable post. According to the Division Bench, since the promotees were working against pensionable posts in the feeder category they were members of the Service and thus they satisfied the conditions of Rule 23. We cannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs. The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules. | 1[ds]7. Since judgment in Suraj Prakashcase (supra) deals with very same Rules which fall for consideration in the present case, it is relevant for decision of our case. There is however, one marked difference between this case and the case of Suraj Prakash Gupta (supra). In Suraj Prakash Gupta (supra) all the promotees had actually worked in the higher posts and the challenge was that they could not get the benefit of the higher posts since they had not worked as per the rules. In the present case, the promotees have not worked even for a day in the higher post before being regularly promoted. In the present case, the learned Single Judge relied upon this judgment to hold that the promotees could not get benefit of anterior appointment under Rule 23. The Division Bench held otherwise. The difference of opinion is only because of one factor. According to the learned Single Judge, the promotees should have actually worked either on ad hoc basis or officiating basis on the promotional post, whereas according to the Division Bench, regardless of the fact whether the employee had actually worked on the promotional post or not, he is entitled to claim promotion from the date the vacancy arises in the promotional cadre, as long as he was working on a pensionable post and is a member of the service.8. At this stage, it would be pertinent to mention that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not born in the cadre. Seniority has to be reckoned only from the date the person entered into that service.From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimeses can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules.12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.13. In Suraj Prakashcase (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12. Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, orbasis etc.16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority.to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which thevacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regularcannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs. The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules. | 1 | 5,747 | 1,369 | ### Instruction:
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fulfilling the other requirement of the rules.12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.13. In Suraj Prakash Gupta’s case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12. Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority. Note-1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.18. The Division Bench relied upon the definition of the ‘member of service’ as defined in Section 2(e) of the Civil Service Rules, according to which the ‘member of service’ is a person who holds a pensionable post. According to the Division Bench, since the promotees were working against pensionable posts in the feeder category they were members of the Service and thus they satisfied the conditions of Rule 23. We cannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs. The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules.
### Response:
1
### Explanation:
be reckoned only from the date the person entered into that service.From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimeses can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules.12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.13. In Suraj Prakashcase (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12. Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, orbasis etc.16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority.to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which thevacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regularcannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs. The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules.
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Sicom Limited Vs. Official Liquidator, High Court ) Bombay As Liquidator of Set ) Telecommunications Limited & Others | the 1990 Mortgage Deed is concerned, it is not necessary to go into the background as to why the said Mortgage Deed was executed but probably it seems there were negotiations between the parties and thereafter the loan advanced to the company in liquidation, seems to be restructured leading to the novation of the contract. A reading of the said clause therefore discloses that the words yearly rests and compound are conspicuously absent in the clause. As indicated above the interest has been hiked to 16.5% payable quarterly and the word rests has not been suffixed to the word quarterly as is usually done in lending contracts.9. Apart from the aforesaid, it is also required to the noted that in so far as the payment of additional interest on account of default is concerned, it is stipulated that the parties agreed to payment of additional interest @ 2.5% p.a. on the total amount in default during the period of such default. Hence there is no mention of any interest which is compounded, to be paid on the defaulted amount. We therefore find merit in the submission of Mr. Kamat that when the parties had agreed to the payment of compound interest, it was specifically provided for, as in the 1987 Mortgage Deed and when they did not do so, it was conspicuously absent as in the 1990 Mortgage Deed. Hence the parties by contract having not provided for payment of compound interest the claim of the Appellant for computation of the amount on the basis of the usual banking practice of capitalisation of interest cannot be entertained.10. Now coming to the judgment cited on behalf of the Appellant i.e. in Central Bank of India (supra), the Apex Court in the said case was concerned with the interpretation of the term principal sum adjudged and such principal sum as appearing in Section 34 of the CPC and it is in the context of the said issue that the Apex Court referred to the usual banking practice of capitalisation of unpaid interest. The Apex Court concluded that the principal sum adjudged may include the amount of interest charged on periodical rests and capitalised with the principal sum actually advanced so as become a part of the principal. Paragraph 44 of the said judgment is material and is reproduced hereinunder:44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other placed in Section 34(1) where the expression has been used qualified by the adjective such that is to stay, as such principal sum. Recognition of the method of capitalisation of interest so as to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of such use of the money which it would have made if the debtor had paid the amount of interest on the date due. The creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar Vs. Narayana Ayyar the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases, where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different placed in the language of same section i.e. section 34 CPC.In so far as the judgments (supra) of the Division Benches are concerned, they also deal with the issue of the Principal Amount Due. It has been held in State Bank of Indias case that principal sum adjudged can include in it interest as well depending upon the contract between the parties. In the said case there was a contract for payment of interest with quarterly rests.In M/s. Good Luck Talkies & Ors (supra) the Division Bench held that the unpaid interest merges in the principal which under the contract is to be treated as principal. The said judgments are predating the judgment of the Constitution Bench in Central Bank of Indias case (Supra). The Constitution Bench Judgment of the Apex Court has settled the law in so far as the Principal Sum Adjudged is concerned. The Apex Court as well as the Division Benches hence concerned with the issue as to on which amount the interest under Section 34 was payable. It is in the said context that the components of the principal sum adjudged as appearing in Section 34 of the CPC were set out by the Apex Court.11. In our view the aforesaid judgments would not aid the Appellant to contend that the Appellant is entitled to compound interest in terms of the clause as appearing in the 1990 Mortgage Deed, when the parties by contract have not provided for the same. | 1[ds]9. A reading of the aforesaid clauses therefore discloses that in so far as the clause in the 1989 Mortgage Deed is concerned, the interest was payable @ 15.5% by half yearly rests on the date specified in the said clause and the proviso was made to pay additional / compound interest @ 2.5% p.a. over and above the SICOM lending rate.In so far as the clause in the 1990 Mortgage Deed is concerned, it is not necessary to go into the background as to why the said Mortgage Deed was executed but probably it seems there were negotiations between the parties and thereafter the loan advanced to the company in liquidation, seems to be restructured leading to the novation of the contract. A reading of the said clause therefore discloses that the words yearly rests and compound are conspicuously absent in the clause. As indicated above the interest has been hiked to 16.5% payable quarterly and the word rests has not been suffixed to the word quarterly as is usually done in lending contracts.9. Apart from the aforesaid, it is also required to the noted that in so far as the payment of additional interest on account of default is concerned, it is stipulated that the parties agreed to payment of additional interest @ 2.5% p.a. on the total amount in default during the period of such default. Hence there is no mention of any interest which is compounded, to be paid on the defaulted amount. We therefore find merit in the submission of Mr. Kamat that when the parties had agreed to the payment of compound interest, it was specifically provided for, as in the 1987 Mortgage Deed and when they did not do so, it was conspicuously absent as in the 1990 Mortgage Deed. Hence the parties by contract having not provided for payment of compound interest the claim of the Appellant for computation of the amount on the basis of the usual banking practice of capitalisation of interest cannot be entertained.10. Now coming to the judgment cited on behalf of the Appellant i.e. in Central Bank of India (supra), the Apex Court in the said case was concerned with the interpretation of the term principal sum adjudged and such principal sum as appearing in Section 34 of the CPC and it is in the context of the said issue that the Apex Court referred to the usual banking practice of capitalisation of unpaid interest. The Apex Court concluded that the principal sum adjudged may include the amount of interest charged on periodical rests and capitalised with the principal sum actually advanced so as become a part of the principal. Paragraph 44 of the said judgment is material and is reproduced hereinunder:44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other placed in Section 34(1) where the expression has been used qualified by the adjective such that is to stay, as such principal sum. Recognition of the method of capitalisation of interest so as to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of such use of the money which it would have made if the debtor had paid the amount of interest on the date due. The creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar Vs. Narayana Ayyar the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases, where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different placed in the language of same section i.e. section 34 CPC.In so far as the judgments (supra) of the Division Benches are concerned, they also deal with the issue of the Principal Amount Due. It has been held in State Bank of Indias case that principal sum adjudged can include in it interest as well depending upon the contract between the parties. In the said case there was a contract for payment of interest with quarterly rests.In M/s. Good Luck TalkiesOrs (supra) the Division Bench held that the unpaid interest merges in the principal which under the contract is to be treated as principal. The said judgments are predating the judgment of the Constitution Bench in Central Bank of Indias case (Supra). The Constitution Bench Judgment of the Apex Court has settled the law in so far as the Principal Sum Adjudged is concerned. The Apex Court as well as the Division Benches hence concerned with the issue as to on which amount the interest under Section 34 was payable. It is in the said context that the components of the principal sum adjudged as appearing in Section 34 of the CPC were set out by the Apex Court.11. In our view the aforesaid judgments would not aid the Appellant to contend that the Appellant is entitled to compound interest in terms of the clause as appearing in the 1990 Mortgage Deed, when the parties by contract have not provided for the same. | 1 | 2,639 | 1,149 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the 1990 Mortgage Deed is concerned, it is not necessary to go into the background as to why the said Mortgage Deed was executed but probably it seems there were negotiations between the parties and thereafter the loan advanced to the company in liquidation, seems to be restructured leading to the novation of the contract. A reading of the said clause therefore discloses that the words yearly rests and compound are conspicuously absent in the clause. As indicated above the interest has been hiked to 16.5% payable quarterly and the word rests has not been suffixed to the word quarterly as is usually done in lending contracts.9. Apart from the aforesaid, it is also required to the noted that in so far as the payment of additional interest on account of default is concerned, it is stipulated that the parties agreed to payment of additional interest @ 2.5% p.a. on the total amount in default during the period of such default. Hence there is no mention of any interest which is compounded, to be paid on the defaulted amount. We therefore find merit in the submission of Mr. Kamat that when the parties had agreed to the payment of compound interest, it was specifically provided for, as in the 1987 Mortgage Deed and when they did not do so, it was conspicuously absent as in the 1990 Mortgage Deed. Hence the parties by contract having not provided for payment of compound interest the claim of the Appellant for computation of the amount on the basis of the usual banking practice of capitalisation of interest cannot be entertained.10. Now coming to the judgment cited on behalf of the Appellant i.e. in Central Bank of India (supra), the Apex Court in the said case was concerned with the interpretation of the term principal sum adjudged and such principal sum as appearing in Section 34 of the CPC and it is in the context of the said issue that the Apex Court referred to the usual banking practice of capitalisation of unpaid interest. The Apex Court concluded that the principal sum adjudged may include the amount of interest charged on periodical rests and capitalised with the principal sum actually advanced so as become a part of the principal. Paragraph 44 of the said judgment is material and is reproduced hereinunder:44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other placed in Section 34(1) where the expression has been used qualified by the adjective such that is to stay, as such principal sum. Recognition of the method of capitalisation of interest so as to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of such use of the money which it would have made if the debtor had paid the amount of interest on the date due. The creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar Vs. Narayana Ayyar the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases, where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different placed in the language of same section i.e. section 34 CPC.In so far as the judgments (supra) of the Division Benches are concerned, they also deal with the issue of the Principal Amount Due. It has been held in State Bank of Indias case that principal sum adjudged can include in it interest as well depending upon the contract between the parties. In the said case there was a contract for payment of interest with quarterly rests.In M/s. Good Luck Talkies & Ors (supra) the Division Bench held that the unpaid interest merges in the principal which under the contract is to be treated as principal. The said judgments are predating the judgment of the Constitution Bench in Central Bank of Indias case (Supra). The Constitution Bench Judgment of the Apex Court has settled the law in so far as the Principal Sum Adjudged is concerned. The Apex Court as well as the Division Benches hence concerned with the issue as to on which amount the interest under Section 34 was payable. It is in the said context that the components of the principal sum adjudged as appearing in Section 34 of the CPC were set out by the Apex Court.11. In our view the aforesaid judgments would not aid the Appellant to contend that the Appellant is entitled to compound interest in terms of the clause as appearing in the 1990 Mortgage Deed, when the parties by contract have not provided for the same.
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1
### Explanation:
clause in the 1990 Mortgage Deed is concerned, it is not necessary to go into the background as to why the said Mortgage Deed was executed but probably it seems there were negotiations between the parties and thereafter the loan advanced to the company in liquidation, seems to be restructured leading to the novation of the contract. A reading of the said clause therefore discloses that the words yearly rests and compound are conspicuously absent in the clause. As indicated above the interest has been hiked to 16.5% payable quarterly and the word rests has not been suffixed to the word quarterly as is usually done in lending contracts.9. Apart from the aforesaid, it is also required to the noted that in so far as the payment of additional interest on account of default is concerned, it is stipulated that the parties agreed to payment of additional interest @ 2.5% p.a. on the total amount in default during the period of such default. Hence there is no mention of any interest which is compounded, to be paid on the defaulted amount. We therefore find merit in the submission of Mr. Kamat that when the parties had agreed to the payment of compound interest, it was specifically provided for, as in the 1987 Mortgage Deed and when they did not do so, it was conspicuously absent as in the 1990 Mortgage Deed. Hence the parties by contract having not provided for payment of compound interest the claim of the Appellant for computation of the amount on the basis of the usual banking practice of capitalisation of interest cannot be entertained.10. Now coming to the judgment cited on behalf of the Appellant i.e. in Central Bank of India (supra), the Apex Court in the said case was concerned with the interpretation of the term principal sum adjudged and such principal sum as appearing in Section 34 of the CPC and it is in the context of the said issue that the Apex Court referred to the usual banking practice of capitalisation of unpaid interest. The Apex Court concluded that the principal sum adjudged may include the amount of interest charged on periodical rests and capitalised with the principal sum actually advanced so as become a part of the principal. Paragraph 44 of the said judgment is material and is reproduced hereinunder:44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other placed in Section 34(1) where the expression has been used qualified by the adjective such that is to stay, as such principal sum. Recognition of the method of capitalisation of interest so as to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of such use of the money which it would have made if the debtor had paid the amount of interest on the date due. The creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar Vs. Narayana Ayyar the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases, where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different placed in the language of same section i.e. section 34 CPC.In so far as the judgments (supra) of the Division Benches are concerned, they also deal with the issue of the Principal Amount Due. It has been held in State Bank of Indias case that principal sum adjudged can include in it interest as well depending upon the contract between the parties. In the said case there was a contract for payment of interest with quarterly rests.In M/s. Good Luck TalkiesOrs (supra) the Division Bench held that the unpaid interest merges in the principal which under the contract is to be treated as principal. The said judgments are predating the judgment of the Constitution Bench in Central Bank of Indias case (Supra). The Constitution Bench Judgment of the Apex Court has settled the law in so far as the Principal Sum Adjudged is concerned. The Apex Court as well as the Division Benches hence concerned with the issue as to on which amount the interest under Section 34 was payable. It is in the said context that the components of the principal sum adjudged as appearing in Section 34 of the CPC were set out by the Apex Court.11. In our view the aforesaid judgments would not aid the Appellant to contend that the Appellant is entitled to compound interest in terms of the clause as appearing in the 1990 Mortgage Deed, when the parties by contract have not provided for the same.
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Pyare Lal Etc Vs. New Delhi Municipal Committee & Anr | article 998 at page 586 headed "regulation of street trading." The learned author thus summarised the law in England :-"Subject to certain exceptions it is unlawful for any person to engage in street trading in or from a stationary position in any street within a metropolitan borough, or to engage in street trading in any designated street whether or not in or from a stationary position, unless he is authorised to do so by a street trading licence. * * * * Nothing in the foregoing provisions (1) restricts the right of any person to carry on the business of a pedlar or hawker in accordance with a pedlars certificate or hawkers licence which he holds; or (2) applies to the sale of or exposure or offer for sale of newspapers or periodicals by any person who does not use in connection with the sale, etc., any receptacle which occupies a stationary position in a street other than a receptacle which is exclusively used in connection with the sale etc., * * *". It would appear that street trading is regulated by certain statutes in England and we have nothing of the kind here. On the basis of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether prevented. On the authority of Roberts v. Hopwood, 1925 AC 578 it was argued by learned counsel that Section 173 at best gave a discretion to the committee to regulate street trading and therefore the same has to the exercised reasonably and could not altogether be prevented. Reference was also made to Pyx Granite Co. v. Ministry of Housing, 1958-1 All ER 625 where it was held that the planning authority under the Town and Country Planning Act, 1947 was not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest. In our view, none of these decisions have any bearing on the question before us.There was no ulterior object behind the resolution of the N. D. M. C. in this case. Clearly the presence of the stall-holders on public streets and sale of cooked food was against public hygiene and S. 173(1) could be availed of to stop the same.Learned counsel also cited the case of C.S.S. Motor Service v. State of Madras, AIR 1953 Mad 279 . There it was argued that the petitioners had a right to carry on motor transport business and that this was a right guaranteed under Article 19 (1) (g) of the Constitution. It was held that the regulation of motor traffic must be determined with the object of serving the interests of the public. Further it was held that a system of licensing which had for its object the regulation of trade was not repugnant to Article l9 (1) (g). We do not think that the observations in that case are of any assistance to the appellants before us. 10. As a branch of the above argument it was also contended that the resolution under Section 173 on which the municipal committee relied in this case gave uncontrolled power to the committee to do what they pleased. 11. It was argued that under the guise of regulation the committee sought to take away the right of the petitioner and others to carry on their trade at their sweet will. Reliance was placed in this connection on a judgment of the House of Lords in Westminster Corporation v. London and North Western Rly., 1905 AC 426. There it was observed that a public body invested with statutory powers must take care not to exceed or abuse them and that it must act in good faith and reasonably. We do not think that these observations help the appellant because it has not been shown to us that there was any bad faith which prompted the N. D. M. C. to pass the resolution complained of, nor did they act unreasonably. 12. It was argued however that the counter affidavit of the respondent as regards the allocation of alternative sites was not correct and comment had been made thereon by the learned single Judge of the High Court. However that may be, it is apparent from the judgment that not all the squatters applied for alternative accommodation and not all of them approved of the sires which were allotted to them. It was beyond the jurisdiction of the N. D. M. C. to provide persons like the appellants with sites at Ramakrishnapuram. That was under the jurisdiction of the Director of Estates and it appears that this authority had been approached for helping persons like the appellants.Further no question of discrimination can arise because all the hawkers/squatters did not apply for such sites or could not be provided with such sites.The resolution of 30th April, 1965 clearly showed that the N. D. M. C. was out to stop the sale of cooked food including tea, kulche, choley etc., inasmuch as the sale of cooked food presented an exceptionally difficult problem because facilities like running water, sewer connection etc. necessary for the minimum standard of sanitation could not be made available. 13. It appears to us that this series of litigation was the result of the N. D. M C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N. D. M. C. had permitted the continuance of the trade for a long time. But no exception can be taken to their exercise of power under Section 173 of the Punjab Municipal Act to eradicate the evil. After all every person has a right to pass and re-pass along a public street.He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighbourhood. | 0[ds]In our opinion the bye-laws under Section 188 (u) had to be made for an altogether different purpose.Sections 172 and 173 are generally aimed at preventing any encroachments over public streets which cause obstruction thereon.The expression "goods for sale" in clause (c) of Section 173(1) or "stall" in clause (e) of Section 173 (1) have to be read in that connection. The placing of goods for sale or erecting stalls in public street may be allowed by the municipality on stated occasions as in the case of some festivals etc. Again it may be necessary to seek the permission of the municipality to make holes or excavation on any street or remove materials from beneath any street or to take up or alter the pavement or deposit building materials thereon for the purpose of erecting a new building or making an alteration to an existing one and the power to regulate the conditions for grant of permission and the fees to be paid in connection therewith by bye-laws under Section 188 has that object in view.Section 188 was not designed for the purpose of framing bye-laws to regulate the conditions on which persons like the petitioner could be allowed to carry on trade on public streets and thus create permanent unhygienic conditions thereon. This should never have been permitted by the municipality and the fact that it has by resolution under Section 173 purported to stop that practice cannot go against itIt would appear that street trading is regulated by certain statutes in England and we have nothing of the kind here. On the basis of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether preventedIn our view, none of these decisions have any bearing on the question before us.There was no ulterior object behind the resolution of the N. D. M. C. in this case. Clearly the presence of the stall-holders on public streets and sale of cooked food was against public hygiene and S. 173(1) could be availed of to stop the sameWe do not think that the observations in that case are of any assistance to the appellants before usWe do not think that these observations help the appellant because it has not been shown to us that there was any bad faith which prompted the N. D. M. C. to pass the resolution complained of, nor did they act unreasonablyHowever that may be, it is apparent from the judgment that not all the squatters applied for alternative accommodation and not all of them approved of the sires which were allotted to them. It was beyond the jurisdiction of the N. D. M. C. to provide persons like the appellants with sites at Ramakrishnapuram. That was under the jurisdiction of the Director of Estates and it appears that this authority had been approached for helping persons like the appellants.Further no question of discrimination can arise because all the hawkers/squatters did not apply for such sites or could not be provided with such sites.The resolution of 30th April, 1965 clearly showed that the N. D. M. C. was out to stop the sale of cooked food including tea, kulche, choley etc., inasmuch as the sale of cooked food presented an exceptionally difficult problem because facilities like running water, sewer connection etc. necessary for the minimum standard of sanitation could not be made available13. It appears to us that this series of litigation was the result of the N. D. M C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N. D. M. C. had permitted the continuance of the trade for a long time. But no exception can be taken to their exercise of power under Section 173 of the Punjab Municipal Act to eradicate the evil. After all every person has a right to pass and re-pass along a public street.He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighbourhood. | 0 | 4,999 | 745 | ### 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:
article 998 at page 586 headed "regulation of street trading." The learned author thus summarised the law in England :-"Subject to certain exceptions it is unlawful for any person to engage in street trading in or from a stationary position in any street within a metropolitan borough, or to engage in street trading in any designated street whether or not in or from a stationary position, unless he is authorised to do so by a street trading licence. * * * * Nothing in the foregoing provisions (1) restricts the right of any person to carry on the business of a pedlar or hawker in accordance with a pedlars certificate or hawkers licence which he holds; or (2) applies to the sale of or exposure or offer for sale of newspapers or periodicals by any person who does not use in connection with the sale, etc., any receptacle which occupies a stationary position in a street other than a receptacle which is exclusively used in connection with the sale etc., * * *". It would appear that street trading is regulated by certain statutes in England and we have nothing of the kind here. On the basis of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether prevented. On the authority of Roberts v. Hopwood, 1925 AC 578 it was argued by learned counsel that Section 173 at best gave a discretion to the committee to regulate street trading and therefore the same has to the exercised reasonably and could not altogether be prevented. Reference was also made to Pyx Granite Co. v. Ministry of Housing, 1958-1 All ER 625 where it was held that the planning authority under the Town and Country Planning Act, 1947 was not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest. In our view, none of these decisions have any bearing on the question before us.There was no ulterior object behind the resolution of the N. D. M. C. in this case. Clearly the presence of the stall-holders on public streets and sale of cooked food was against public hygiene and S. 173(1) could be availed of to stop the same.Learned counsel also cited the case of C.S.S. Motor Service v. State of Madras, AIR 1953 Mad 279 . There it was argued that the petitioners had a right to carry on motor transport business and that this was a right guaranteed under Article 19 (1) (g) of the Constitution. It was held that the regulation of motor traffic must be determined with the object of serving the interests of the public. Further it was held that a system of licensing which had for its object the regulation of trade was not repugnant to Article l9 (1) (g). We do not think that the observations in that case are of any assistance to the appellants before us. 10. As a branch of the above argument it was also contended that the resolution under Section 173 on which the municipal committee relied in this case gave uncontrolled power to the committee to do what they pleased. 11. It was argued that under the guise of regulation the committee sought to take away the right of the petitioner and others to carry on their trade at their sweet will. Reliance was placed in this connection on a judgment of the House of Lords in Westminster Corporation v. London and North Western Rly., 1905 AC 426. There it was observed that a public body invested with statutory powers must take care not to exceed or abuse them and that it must act in good faith and reasonably. We do not think that these observations help the appellant because it has not been shown to us that there was any bad faith which prompted the N. D. M. C. to pass the resolution complained of, nor did they act unreasonably. 12. It was argued however that the counter affidavit of the respondent as regards the allocation of alternative sites was not correct and comment had been made thereon by the learned single Judge of the High Court. However that may be, it is apparent from the judgment that not all the squatters applied for alternative accommodation and not all of them approved of the sires which were allotted to them. It was beyond the jurisdiction of the N. D. M. C. to provide persons like the appellants with sites at Ramakrishnapuram. That was under the jurisdiction of the Director of Estates and it appears that this authority had been approached for helping persons like the appellants.Further no question of discrimination can arise because all the hawkers/squatters did not apply for such sites or could not be provided with such sites.The resolution of 30th April, 1965 clearly showed that the N. D. M. C. was out to stop the sale of cooked food including tea, kulche, choley etc., inasmuch as the sale of cooked food presented an exceptionally difficult problem because facilities like running water, sewer connection etc. necessary for the minimum standard of sanitation could not be made available. 13. It appears to us that this series of litigation was the result of the N. D. M C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N. D. M. C. had permitted the continuance of the trade for a long time. But no exception can be taken to their exercise of power under Section 173 of the Punjab Municipal Act to eradicate the evil. After all every person has a right to pass and re-pass along a public street.He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighbourhood.
### Response:
0
### Explanation:
In our opinion the bye-laws under Section 188 (u) had to be made for an altogether different purpose.Sections 172 and 173 are generally aimed at preventing any encroachments over public streets which cause obstruction thereon.The expression "goods for sale" in clause (c) of Section 173(1) or "stall" in clause (e) of Section 173 (1) have to be read in that connection. The placing of goods for sale or erecting stalls in public street may be allowed by the municipality on stated occasions as in the case of some festivals etc. Again it may be necessary to seek the permission of the municipality to make holes or excavation on any street or remove materials from beneath any street or to take up or alter the pavement or deposit building materials thereon for the purpose of erecting a new building or making an alteration to an existing one and the power to regulate the conditions for grant of permission and the fees to be paid in connection therewith by bye-laws under Section 188 has that object in view.Section 188 was not designed for the purpose of framing bye-laws to regulate the conditions on which persons like the petitioner could be allowed to carry on trade on public streets and thus create permanent unhygienic conditions thereon. This should never have been permitted by the municipality and the fact that it has by resolution under Section 173 purported to stop that practice cannot go against itIt would appear that street trading is regulated by certain statutes in England and we have nothing of the kind here. On the basis of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether preventedIn our view, none of these decisions have any bearing on the question before us.There was no ulterior object behind the resolution of the N. D. M. C. in this case. Clearly the presence of the stall-holders on public streets and sale of cooked food was against public hygiene and S. 173(1) could be availed of to stop the sameWe do not think that the observations in that case are of any assistance to the appellants before usWe do not think that these observations help the appellant because it has not been shown to us that there was any bad faith which prompted the N. D. M. C. to pass the resolution complained of, nor did they act unreasonablyHowever that may be, it is apparent from the judgment that not all the squatters applied for alternative accommodation and not all of them approved of the sires which were allotted to them. It was beyond the jurisdiction of the N. D. M. C. to provide persons like the appellants with sites at Ramakrishnapuram. That was under the jurisdiction of the Director of Estates and it appears that this authority had been approached for helping persons like the appellants.Further no question of discrimination can arise because all the hawkers/squatters did not apply for such sites or could not be provided with such sites.The resolution of 30th April, 1965 clearly showed that the N. D. M. C. was out to stop the sale of cooked food including tea, kulche, choley etc., inasmuch as the sale of cooked food presented an exceptionally difficult problem because facilities like running water, sewer connection etc. necessary for the minimum standard of sanitation could not be made available13. It appears to us that this series of litigation was the result of the N. D. M C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N. D. M. C. had permitted the continuance of the trade for a long time. But no exception can be taken to their exercise of power under Section 173 of the Punjab Municipal Act to eradicate the evil. After all every person has a right to pass and re-pass along a public street.He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighbourhood.
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Shiv Shakti Coop.Housing Society Vs. M/S. Swaraj Developers | both what is described technically as an appeal and also the common law writ of error. As Mr. Justice Subramania Ayyar observes in Chappan vs. Moidin, 22 Mad 68 at p.80 the two things which are required to constitute appellate jurisdiction are the existence of the relation to superior and inferior Court and the power, on the part of the former, to review decisions of the latter. 30. Sub-section (2) of Section 115 has remained unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in Section 115 by the Amendment Act which states that revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceedings is stayed by the High Court. 31. In Section 2, the expressions degree and order have been defined in clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an order. If, in fact, it fulfils the conditions of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussal i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with the appeals from orders. These appeals lie under Section 104 of the Code. The said Section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in appeal under the said Section. Section 104 and Order 43 Rule I contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. so appealable as well as non-appelable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any other, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with case of remand. This section, in fact, contemplates two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order 43 Rule 1 is an integral part of Section 104. 32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. 33. Section 6 of the General Clauses Act has no application because there is no substantive vested right available to a party seeking revision under Section 115 of the Code. In Kolhapur Canesugar Works Ltd. and another vs. Union of India and others (AIR 2000 SC 811 ), it was observed that if a provision of Statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision. 34. In view of what has been stated above the inevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications. 35. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Section 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy. 36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law. 37. | 0[ds]A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provisioninevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications | 0 | 6,014 | 384 | ### 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:
both what is described technically as an appeal and also the common law writ of error. As Mr. Justice Subramania Ayyar observes in Chappan vs. Moidin, 22 Mad 68 at p.80 the two things which are required to constitute appellate jurisdiction are the existence of the relation to superior and inferior Court and the power, on the part of the former, to review decisions of the latter. 30. Sub-section (2) of Section 115 has remained unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in Section 115 by the Amendment Act which states that revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceedings is stayed by the High Court. 31. In Section 2, the expressions degree and order have been defined in clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an order. If, in fact, it fulfils the conditions of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussal i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with the appeals from orders. These appeals lie under Section 104 of the Code. The said Section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in appeal under the said Section. Section 104 and Order 43 Rule I contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. so appealable as well as non-appelable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any other, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with case of remand. This section, in fact, contemplates two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order 43 Rule 1 is an integral part of Section 104. 32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. 33. Section 6 of the General Clauses Act has no application because there is no substantive vested right available to a party seeking revision under Section 115 of the Code. In Kolhapur Canesugar Works Ltd. and another vs. Union of India and others (AIR 2000 SC 811 ), it was observed that if a provision of Statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision. 34. In view of what has been stated above the inevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications. 35. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Section 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy. 36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law. 37.
### Response:
0
### Explanation:
A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provisioninevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications
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Vidya Vati Vs. The State Of Punjab & Ors | If the land so selected was in the possession of a tenant, he could, subject to the restrictions contained in S. 7-A, evict the tenant. The lands which were not selected for personal cultivation by the landowner could be purchased by the tenant in the manner and subject to the conditions provided in S. 22. The Legislature thereafter modified the scheme of the Act and incorporated Ch IV-A under which no person could own or hold land either as landowner or as tenant in excess of the permissible limit The excess was to be treated as surplus land and appropriated to the State. Whereas under the scheme of Chapters II, III and IV as they originally stood the tenants were given the right to purchase the lands not selected by the landowner for personal cultivation, but the landowner was otherwise subject to no further restrictions, by Ch. IV-A it was intended to place a ceiling upon the owning or holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit.6.Viewed in the light of that scheme, also, it is impossible to construe S. 32-A is being operative only at the point of time at which the Amending Act incorporating Ch IV-A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication. It is true that under S. 32-B every person who owns or holds as landowner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding. But that is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date of commencement: it does not even indirectly suggest that S. 32-A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter. Failure on the part of the Legislature to deal with cases in which at the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in "cultivatory possession" thereof but was restored to his possession during the subsistence of the Act, cannot also be used to limit the operation of S. 32-A (1) only to the point of time at which the Act was brought into force. In our judgment the ban imposed by S. 32-A operates whenever he is found to own or hold land in personal cultivation exceeding the permissible limit.7. Section 32-K provides for exemption of lands used or intended to be used for certain specified purposes to the extent indicated from the ceiling imposed by S. 32-A (1). By Cl. (vi) of S. 32-K (1) it is provided that the provisions of S. 32-A shall not apply where a landowner gives an undertaking in writing to the Collector that he shall, within a period of two years from the commencement of the Pepsu Tenancy and Agricultural lands (Second Amendment) Act, 1956, plant an orchard in any area of his land not exceeding ten standard acres, such area of land. Sub-section (2) of S. 32-K provides that where a landowner has, by an undertaking given to the Collector, retained any area of land with him for planting an orchard, and fails to plant the orchard within a period of two years referred to in Cl. (iv) of sub-s. (1), the land so retained by him shall on the expiry of that period vest in the State Government under S. 32-E. It is also provided by sub-s. (3) which was added by Punjab Act 27 of 1962 with retrospective effect from October 30, 1956, that notwithstanding anything contained in the Act, the exemption specified in Cl. (vi) of sub-s. (1) shall not be allowed unless the land planted within the period specified therein is found to be an orchard also at the time of granting the exemption.In order to qualify for exemption from the ceiling to the extent of ten acres for the purpose of planting an orchard, the landowner has to give an undertaking that he will bring the land within two years from the commencement of the Amending Act under an orchard, and has to plant the orchard within that period and to maintain it as an orchard till the date of the grant of exemption. A person who is not in possession of the land at the date when the Amending Act is brought into force may not ordinarily be in a position to give an undertaking under Cl. (vi) of S. 32-K (1) to bring the land under an orchard, since such a person may not be able to say whether he will he able to obtain possession of the land so as to carry out the undertaking. The Legislature has failed to make a provision enabling reservation to be made by persons belonging to the exceptional class to which the appellant belongs. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exists in the Act, but it is for the Legislature to rectify it and not for the courts to give a strained meaning to the words used by the Legislature which they do not bear. The expression "within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act 1956" cannot be read as "within two years from the date on which the holder or tenant is restored to possession." The Legislature has not made any provision for extending the time in respect of certain special cases like the one before us, or extending the time for planting an orchard. The High Court was, therefore, right in holding that the appellant could not claim an additional area of ten acres of land for planting an orchard. | 0[ds]The entire argument is raised on an assumption that S. 32 A (1) operates only at the date on which the Act was brought into operation that argument, in our judgment, is contrary to the plain teens of S. 32-A (1). It is true that Ss. 32-L and 32-M expressly deal with certain classes of acquisitions after the date of the commencement of the Act, but on that account no restriction may be imposed upon the connotation of the expression "no person shall be entitled to own or hold" occurring in S. 32-A, that it is limited in its operation to the point of commencement and has no operation in the future. It may be noticed that S. 32-L renders all subsequent acquisitions as a result of which the holding of a person of lane under his personal cultivation exceeds thirty acres "null and void", and S. 32-M which deals substantially with involuntary acquisitions (such as acquisitions by inheritance or bequest) sets out the machinery for making declarations and the manner in which the land in personal cultivation in excess of the ceiling will be dealt with. By an appropriate drafting device, it may have been possible to dovetail these provisions into the other sections, but if in the interest of clarity certain specific cases are separately dealt with, an intention to restrict the operation of the general provision contained S. 32-A (1) cannot bescheme of the Act, therefore, was that the landowner was entitled to select for personal cultivation from the land held by him within the State any parcel or parcels of land not exceeding in the aggregate the permissible limit. If the land so selected was in the possession of a tenant, he could, subject to the restrictions contained in S. 7-A, evict the tenant. The lands which were not selected for personal cultivation by the landowner could be purchased by the tenant in the manner and subject to the conditions provided in S. 22. The Legislature thereafter modified the scheme of the Act and incorporated Ch IV-A under which no person could own or hold land either as landowner or as tenant in excess of the permissible limit The excess was to be treated as surplus land and appropriated to the State. Whereas under the scheme of Chapters II, III and IV as they originally stood the tenants were given the right to purchase the lands not selected by the landowner for personal cultivation, but the landowner was otherwise subject to no further restrictions, by Ch. IV-A it was intended to place a ceiling upon the owning or holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit.6.Viewed in the light of that scheme, also, it is impossible to construe S. 32-A is being operative only at the point of time at which the Amending Act incorporating Ch IV-A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication. It is true that under S. 32-B every person who owns or holds as landowner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding. But that is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date of commencement: it does not even indirectly suggest that S. 32-A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter. Failure on the part of the Legislature to deal with cases in which at the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in "cultivatory possession" thereof but was restored to his possession during the subsistence of the Act, cannot also be used to limit the operation of S. 32-A (1) only to the point of time at which the Act was brought into force. In our judgment the ban imposed by S. 32-A operates whenever he is found to own or hold land in personal cultivation exceeding the permissibleLegislature has failed to make a provision enabling reservation to be made by persons belonging to the exceptional class to which the appellant belongs. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exists in the Act, but it is for the Legislature to rectify it and not for the courts to give a strained meaning to the words used by the Legislature which they do not bear. The expression "within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act 1956" cannot be read as "within two years from the date on which the holder or tenant is restored to possession." The Legislature has not made any provision for extending the time in respect of certain special cases like the one before us, or extending the time for planting an orchard. The High Court was, therefore, right in holding that the appellant could not claim an additional area of ten acres of land for planting an orchard. | 0 | 2,423 | 964 | ### 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:
If the land so selected was in the possession of a tenant, he could, subject to the restrictions contained in S. 7-A, evict the tenant. The lands which were not selected for personal cultivation by the landowner could be purchased by the tenant in the manner and subject to the conditions provided in S. 22. The Legislature thereafter modified the scheme of the Act and incorporated Ch IV-A under which no person could own or hold land either as landowner or as tenant in excess of the permissible limit The excess was to be treated as surplus land and appropriated to the State. Whereas under the scheme of Chapters II, III and IV as they originally stood the tenants were given the right to purchase the lands not selected by the landowner for personal cultivation, but the landowner was otherwise subject to no further restrictions, by Ch. IV-A it was intended to place a ceiling upon the owning or holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit.6.Viewed in the light of that scheme, also, it is impossible to construe S. 32-A is being operative only at the point of time at which the Amending Act incorporating Ch IV-A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication. It is true that under S. 32-B every person who owns or holds as landowner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding. But that is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date of commencement: it does not even indirectly suggest that S. 32-A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter. Failure on the part of the Legislature to deal with cases in which at the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in "cultivatory possession" thereof but was restored to his possession during the subsistence of the Act, cannot also be used to limit the operation of S. 32-A (1) only to the point of time at which the Act was brought into force. In our judgment the ban imposed by S. 32-A operates whenever he is found to own or hold land in personal cultivation exceeding the permissible limit.7. Section 32-K provides for exemption of lands used or intended to be used for certain specified purposes to the extent indicated from the ceiling imposed by S. 32-A (1). By Cl. (vi) of S. 32-K (1) it is provided that the provisions of S. 32-A shall not apply where a landowner gives an undertaking in writing to the Collector that he shall, within a period of two years from the commencement of the Pepsu Tenancy and Agricultural lands (Second Amendment) Act, 1956, plant an orchard in any area of his land not exceeding ten standard acres, such area of land. Sub-section (2) of S. 32-K provides that where a landowner has, by an undertaking given to the Collector, retained any area of land with him for planting an orchard, and fails to plant the orchard within a period of two years referred to in Cl. (iv) of sub-s. (1), the land so retained by him shall on the expiry of that period vest in the State Government under S. 32-E. It is also provided by sub-s. (3) which was added by Punjab Act 27 of 1962 with retrospective effect from October 30, 1956, that notwithstanding anything contained in the Act, the exemption specified in Cl. (vi) of sub-s. (1) shall not be allowed unless the land planted within the period specified therein is found to be an orchard also at the time of granting the exemption.In order to qualify for exemption from the ceiling to the extent of ten acres for the purpose of planting an orchard, the landowner has to give an undertaking that he will bring the land within two years from the commencement of the Amending Act under an orchard, and has to plant the orchard within that period and to maintain it as an orchard till the date of the grant of exemption. A person who is not in possession of the land at the date when the Amending Act is brought into force may not ordinarily be in a position to give an undertaking under Cl. (vi) of S. 32-K (1) to bring the land under an orchard, since such a person may not be able to say whether he will he able to obtain possession of the land so as to carry out the undertaking. The Legislature has failed to make a provision enabling reservation to be made by persons belonging to the exceptional class to which the appellant belongs. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exists in the Act, but it is for the Legislature to rectify it and not for the courts to give a strained meaning to the words used by the Legislature which they do not bear. The expression "within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act 1956" cannot be read as "within two years from the date on which the holder or tenant is restored to possession." The Legislature has not made any provision for extending the time in respect of certain special cases like the one before us, or extending the time for planting an orchard. The High Court was, therefore, right in holding that the appellant could not claim an additional area of ten acres of land for planting an orchard.
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The entire argument is raised on an assumption that S. 32 A (1) operates only at the date on which the Act was brought into operation that argument, in our judgment, is contrary to the plain teens of S. 32-A (1). It is true that Ss. 32-L and 32-M expressly deal with certain classes of acquisitions after the date of the commencement of the Act, but on that account no restriction may be imposed upon the connotation of the expression "no person shall be entitled to own or hold" occurring in S. 32-A, that it is limited in its operation to the point of commencement and has no operation in the future. It may be noticed that S. 32-L renders all subsequent acquisitions as a result of which the holding of a person of lane under his personal cultivation exceeds thirty acres "null and void", and S. 32-M which deals substantially with involuntary acquisitions (such as acquisitions by inheritance or bequest) sets out the machinery for making declarations and the manner in which the land in personal cultivation in excess of the ceiling will be dealt with. By an appropriate drafting device, it may have been possible to dovetail these provisions into the other sections, but if in the interest of clarity certain specific cases are separately dealt with, an intention to restrict the operation of the general provision contained S. 32-A (1) cannot bescheme of the Act, therefore, was that the landowner was entitled to select for personal cultivation from the land held by him within the State any parcel or parcels of land not exceeding in the aggregate the permissible limit. If the land so selected was in the possession of a tenant, he could, subject to the restrictions contained in S. 7-A, evict the tenant. The lands which were not selected for personal cultivation by the landowner could be purchased by the tenant in the manner and subject to the conditions provided in S. 22. The Legislature thereafter modified the scheme of the Act and incorporated Ch IV-A under which no person could own or hold land either as landowner or as tenant in excess of the permissible limit The excess was to be treated as surplus land and appropriated to the State. Whereas under the scheme of Chapters II, III and IV as they originally stood the tenants were given the right to purchase the lands not selected by the landowner for personal cultivation, but the landowner was otherwise subject to no further restrictions, by Ch. IV-A it was intended to place a ceiling upon the owning or holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit.6.Viewed in the light of that scheme, also, it is impossible to construe S. 32-A is being operative only at the point of time at which the Amending Act incorporating Ch IV-A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication. It is true that under S. 32-B every person who owns or holds as landowner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding. But that is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date of commencement: it does not even indirectly suggest that S. 32-A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter. Failure on the part of the Legislature to deal with cases in which at the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in "cultivatory possession" thereof but was restored to his possession during the subsistence of the Act, cannot also be used to limit the operation of S. 32-A (1) only to the point of time at which the Act was brought into force. In our judgment the ban imposed by S. 32-A operates whenever he is found to own or hold land in personal cultivation exceeding the permissibleLegislature has failed to make a provision enabling reservation to be made by persons belonging to the exceptional class to which the appellant belongs. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exists in the Act, but it is for the Legislature to rectify it and not for the courts to give a strained meaning to the words used by the Legislature which they do not bear. The expression "within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act 1956" cannot be read as "within two years from the date on which the holder or tenant is restored to possession." The Legislature has not made any provision for extending the time in respect of certain special cases like the one before us, or extending the time for planting an orchard. The High Court was, therefore, right in holding that the appellant could not claim an additional area of ten acres of land for planting an orchard.
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Narmadeshwar Prasad Singh Vs. State of Bihar | N.L. UNTWALIA, J. This appeal by special leave from the judgment of the Patna High Court given in a writ petition is filed by the appellants. The short question which fell to be decided in the High Court and deserves our consideration is whether the reserve Jama fixed at Rs. 5, 000 per year by the Collector under the Bihar Land Reform Rules, 1951 (hereinafter referred to as "the Rules"), was valid and legal. The Jama had to be fixed in accordance with Rule 7(u) of the Rules. The question is whether it was under clause (i) or under clause (ii) that it was to be so fixed. The High Court has not clearly kept in view the distinction between the two clauses. Rule 7(u) reads as follows : 7(u) Fixation of reserve Jama. - (i) In respect of such Hat, Bazar or Mela, a reserve Jama shall be fixed by the Collector or the prescribed authority on the basis of the average of the Jama, at which such Hat, Bazar or Mela was settled during the preceding here years. In case of improvements and developments in respect of the premises of such Hat, Bazar or Mela or in the neighbourhood thereof, for which the outgoing intermediaries and/or their heirs are not responsible, and which are likely to increase the potentialities for fielding a higher Jama, such potentialities may also be taken into consideration and the reserve Jama can be suitably increased with the permission of the Commissioner. (ii) In case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years, due to non-availability of figures or otherwise, the Collector or the prescribed authority shall fix the reserve Jama in his best judgment with the approval of the Commissioner of the Division. 2. Under the first part of clause (i) the reserve Jama has to be fixed by the Collector or the prescribed authority on the basis of the average of the Jama at which any Hat, Bazar or Mela was settled during the preceding three years. The second part takes into account the improvement, if any, brought about therein for which the intermediary is not responsible. 3. Under clause (ii), however, in case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years the Collector can fix the reserve Jama in his best judgment. The fixation under clause (ii) is subject of the Commissioner of the Division. 4. In the instant case it appears to us that the figures of the reserve Jamas for the preceding three years were not available. The Collector, therefore, proceeded to fix it under clause (ii) of Rule 7(u) of the Rules. It was fixed at Rs. 5, 000 per year and that was approved by the Commissioner also. There was no illegality in fixing the reserve Jama according to the best judgment of the Collector. The Division Bench of the High Court, thereof is correct. 5. But to the view expressed by the High Court in the judgment under appeal with reference to the provisions of Rule 7(u) is not quite correct. The High Court has committed a mistake in observing : Without entering into details about the provisions of the Rules, it is sufficient to say that the Collector should first fix the reserved Jama either on the basis of the average Jama at which the Hat was settled during the preceding three years or to the best of his judgment subject to the approval of the Commissioner of the Division [see clauses (i) and (ii) of Rule 7(u) and then make an offer to the previous intermediary Rule 7-R]. 6. The view so expressed is erroneous and we do not approve of it. The correct position of law is as we have explained above. But on the facts the decision of the High Court as it is, is correct and cannot be interfered with. | 0[ds]4. In the instant case it appears to us that the figures of the reserve Jamas for the preceding three years were not available. The Collector, therefore, proceeded to fix it under clause (ii) of Rule 7(u) of the Rules. It was fixed at Rs. 5, 000 per year and that was approved by the Commissioner also. There was no illegality in fixing the reserve Jama according to the best judgment of the Collector. The Division Bench of the High Court, thereof is correct5. But to the view expressed by the High Court in the judgment under appeal with reference to the provisions of Rule 7(u) is not quite correct. The High Court has committed a mistake in observing :6. The view so expressed is erroneous and we do not approve of it. The correct position of law is as we have explained above. But on the facts the decision of the High Court as it is, is correct and cannot be interfered with. | 0 | 767 | 194 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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N.L. UNTWALIA, J. This appeal by special leave from the judgment of the Patna High Court given in a writ petition is filed by the appellants. The short question which fell to be decided in the High Court and deserves our consideration is whether the reserve Jama fixed at Rs. 5, 000 per year by the Collector under the Bihar Land Reform Rules, 1951 (hereinafter referred to as "the Rules"), was valid and legal. The Jama had to be fixed in accordance with Rule 7(u) of the Rules. The question is whether it was under clause (i) or under clause (ii) that it was to be so fixed. The High Court has not clearly kept in view the distinction between the two clauses. Rule 7(u) reads as follows : 7(u) Fixation of reserve Jama. - (i) In respect of such Hat, Bazar or Mela, a reserve Jama shall be fixed by the Collector or the prescribed authority on the basis of the average of the Jama, at which such Hat, Bazar or Mela was settled during the preceding here years. In case of improvements and developments in respect of the premises of such Hat, Bazar or Mela or in the neighbourhood thereof, for which the outgoing intermediaries and/or their heirs are not responsible, and which are likely to increase the potentialities for fielding a higher Jama, such potentialities may also be taken into consideration and the reserve Jama can be suitably increased with the permission of the Commissioner. (ii) In case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years, due to non-availability of figures or otherwise, the Collector or the prescribed authority shall fix the reserve Jama in his best judgment with the approval of the Commissioner of the Division. 2. Under the first part of clause (i) the reserve Jama has to be fixed by the Collector or the prescribed authority on the basis of the average of the Jama at which any Hat, Bazar or Mela was settled during the preceding three years. The second part takes into account the improvement, if any, brought about therein for which the intermediary is not responsible. 3. Under clause (ii), however, in case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years the Collector can fix the reserve Jama in his best judgment. The fixation under clause (ii) is subject of the Commissioner of the Division. 4. In the instant case it appears to us that the figures of the reserve Jamas for the preceding three years were not available. The Collector, therefore, proceeded to fix it under clause (ii) of Rule 7(u) of the Rules. It was fixed at Rs. 5, 000 per year and that was approved by the Commissioner also. There was no illegality in fixing the reserve Jama according to the best judgment of the Collector. The Division Bench of the High Court, thereof is correct. 5. But to the view expressed by the High Court in the judgment under appeal with reference to the provisions of Rule 7(u) is not quite correct. The High Court has committed a mistake in observing : Without entering into details about the provisions of the Rules, it is sufficient to say that the Collector should first fix the reserved Jama either on the basis of the average Jama at which the Hat was settled during the preceding three years or to the best of his judgment subject to the approval of the Commissioner of the Division [see clauses (i) and (ii) of Rule 7(u) and then make an offer to the previous intermediary Rule 7-R]. 6. The view so expressed is erroneous and we do not approve of it. The correct position of law is as we have explained above. But on the facts the decision of the High Court as it is, is correct and cannot be interfered with.
### Response:
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### Explanation:
4. In the instant case it appears to us that the figures of the reserve Jamas for the preceding three years were not available. The Collector, therefore, proceeded to fix it under clause (ii) of Rule 7(u) of the Rules. It was fixed at Rs. 5, 000 per year and that was approved by the Commissioner also. There was no illegality in fixing the reserve Jama according to the best judgment of the Collector. The Division Bench of the High Court, thereof is correct5. But to the view expressed by the High Court in the judgment under appeal with reference to the provisions of Rule 7(u) is not quite correct. The High Court has committed a mistake in observing :6. The view so expressed is erroneous and we do not approve of it. The correct position of law is as we have explained above. But on the facts the decision of the High Court as it is, is correct and cannot be interfered with.
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Indian Oil Corporation Vs. Indian Carbon Ltd | made their submissions as to what actually happened and what is the result in terms of their respective rights and liabilities. All this will be fresh in the arbitrators minds and there will be no need for further written submissions by the parties. No particular form of award is required. Certainly no one wants a formal "Special Case". All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a "reasoned award.". For example, it may be convenient to begin by explaining briefly how the arbitration came about - "X sold to Y 200 tons of soya bean meal on the terms of GAFTA Contract 100 at US $ Z per ton c.i.f. Bremen. X claimed damages for non-delivery and we were appointed arbitrators." The award could then briefly tell the factual story as the arbitrators saw it. Much would be common ground and would need no elaboration. But when the award comes to matters in controversy, it would be helpful if the arbitrators not only gave their view of what occurred, but also made it clear that they have considered any alternative version and have rejected it, e.g., "The shippers claimed that they shipped 100 tons at the end of June. We are not satisfied that this is so", or as the case may be, "We are satisfied that this was not the case". The arbitrators should end with their conclusion as to the resulting rights and liabilities of the parties. There is nothing about this which is remotely technical, difficult or time consumingIt is sometimes said that this involves arbitrators in delivering judgments and that this is something which requires legal skills. This is something of a half truth. Much of the art of giving a judgment lies in telling a story logically, coherently and accurately. This is something which requires skill, but it is not legal skill and it is not necessarily advanced by legal training. It is certainly a judicial skill, but arbitrators for this purpose are judges and will have no difficulty in acquiring it. Where a 1979 Act award differs from a judgment is in a fact that the arbitrators will not be expected to analyse the law and the authorities. It will be quite sufficient that they should explain how they reached their conclusion, e.g., "We regarded the conduct of the buyers, we have described it, as constituting a repudiation of their obligations under the contract and subsequent conduct of the sellers, also as described, as amounting to an acceptance of that repudiatory conduct putting an end to the contract. It can be left to others to argue that this is wrong in law and to a professional judge, if leave to appeal is given, to analyse the authorities. This is not to say that where arbitrators are content to set out their reasoning on questions of law in the same way as judges, this will be unwelcome to the courts. Far from it. The point which I am seeking to make is that a reasoned award, in accordance with the 1979 Act, is wholly different from an award in the form of a special case. It is not technical, it is not difficult to draw and above all it is something which an and should be produced promptly and quickly at the conclusion of the hearing. That is the time when it is easiest to produce an award with all the issues in mind". See the observations in Russel on Arbitration, Twentieth Edition, page 291 - Reasons for the Award and the decision referred to therein. 9. In a case of this nature, issues are simple, points are fresh and facts are clear, the reasons given by the arbitrator, in our opinion, meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly or unreasonably. Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case. In the instant case the arbitrator has spoke his mind, and he is clear as to how he acted and why he acted in that manner. 10. The purpose of Section 12 of the English Tribunal and Inquiries Act which required the statutory tribunal to furnish a statement of the reasons if requested to do so before it gave its decision was to enable a person whose property or whose interests were affected to know if the decision was against him what the reasons were. Justice R. S. Bachawat in his Law of Arbitration, First Edition 1983, pages 320 and 321 states that the provision was read as meaning that proper and adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. The court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is not evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous. 11. Judged in that light, the award in question was unassailable in the instant case. 12. In the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took. | 0[ds]9. In a case of this nature, issues are simple, points are fresh and facts are clear, the reasons given by the arbitrator, in our opinion, meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly or unreasonably. Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case. In the instant case the arbitrator has spoke his mind, and he is clear as to how he acted and why he acted in thatThe purpose of Section 12 of the English Tribunal and Inquiries Act which required the statutory tribunal to furnish a statement of the reasons if requested to do so before it gave its decision was to enable a person whose property or whose interests were affected to know if the decision was against him what the reasons were. Justice R. S. Bachawat in his Law of Arbitration, First Edition 1983, pages 320 and 321 states that the provision was read as meaning that proper and adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. The court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is not evidence to support the conclusions or if the award is based upon any legal proposition which isJudged in that light, the award in question was unassailable in the instantIn the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took. | 0 | 3,522 | 384 | ### 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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made their submissions as to what actually happened and what is the result in terms of their respective rights and liabilities. All this will be fresh in the arbitrators minds and there will be no need for further written submissions by the parties. No particular form of award is required. Certainly no one wants a formal "Special Case". All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a "reasoned award.". For example, it may be convenient to begin by explaining briefly how the arbitration came about - "X sold to Y 200 tons of soya bean meal on the terms of GAFTA Contract 100 at US $ Z per ton c.i.f. Bremen. X claimed damages for non-delivery and we were appointed arbitrators." The award could then briefly tell the factual story as the arbitrators saw it. Much would be common ground and would need no elaboration. But when the award comes to matters in controversy, it would be helpful if the arbitrators not only gave their view of what occurred, but also made it clear that they have considered any alternative version and have rejected it, e.g., "The shippers claimed that they shipped 100 tons at the end of June. We are not satisfied that this is so", or as the case may be, "We are satisfied that this was not the case". The arbitrators should end with their conclusion as to the resulting rights and liabilities of the parties. There is nothing about this which is remotely technical, difficult or time consumingIt is sometimes said that this involves arbitrators in delivering judgments and that this is something which requires legal skills. This is something of a half truth. Much of the art of giving a judgment lies in telling a story logically, coherently and accurately. This is something which requires skill, but it is not legal skill and it is not necessarily advanced by legal training. It is certainly a judicial skill, but arbitrators for this purpose are judges and will have no difficulty in acquiring it. Where a 1979 Act award differs from a judgment is in a fact that the arbitrators will not be expected to analyse the law and the authorities. It will be quite sufficient that they should explain how they reached their conclusion, e.g., "We regarded the conduct of the buyers, we have described it, as constituting a repudiation of their obligations under the contract and subsequent conduct of the sellers, also as described, as amounting to an acceptance of that repudiatory conduct putting an end to the contract. It can be left to others to argue that this is wrong in law and to a professional judge, if leave to appeal is given, to analyse the authorities. This is not to say that where arbitrators are content to set out their reasoning on questions of law in the same way as judges, this will be unwelcome to the courts. Far from it. The point which I am seeking to make is that a reasoned award, in accordance with the 1979 Act, is wholly different from an award in the form of a special case. It is not technical, it is not difficult to draw and above all it is something which an and should be produced promptly and quickly at the conclusion of the hearing. That is the time when it is easiest to produce an award with all the issues in mind". See the observations in Russel on Arbitration, Twentieth Edition, page 291 - Reasons for the Award and the decision referred to therein. 9. In a case of this nature, issues are simple, points are fresh and facts are clear, the reasons given by the arbitrator, in our opinion, meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly or unreasonably. Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case. In the instant case the arbitrator has spoke his mind, and he is clear as to how he acted and why he acted in that manner. 10. The purpose of Section 12 of the English Tribunal and Inquiries Act which required the statutory tribunal to furnish a statement of the reasons if requested to do so before it gave its decision was to enable a person whose property or whose interests were affected to know if the decision was against him what the reasons were. Justice R. S. Bachawat in his Law of Arbitration, First Edition 1983, pages 320 and 321 states that the provision was read as meaning that proper and adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. The court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is not evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous. 11. Judged in that light, the award in question was unassailable in the instant case. 12. In the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took.
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### Explanation:
9. In a case of this nature, issues are simple, points are fresh and facts are clear, the reasons given by the arbitrator, in our opinion, meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly or unreasonably. Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case. In the instant case the arbitrator has spoke his mind, and he is clear as to how he acted and why he acted in thatThe purpose of Section 12 of the English Tribunal and Inquiries Act which required the statutory tribunal to furnish a statement of the reasons if requested to do so before it gave its decision was to enable a person whose property or whose interests were affected to know if the decision was against him what the reasons were. Justice R. S. Bachawat in his Law of Arbitration, First Edition 1983, pages 320 and 321 states that the provision was read as meaning that proper and adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. The court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is not evidence to support the conclusions or if the award is based upon any legal proposition which isJudged in that light, the award in question was unassailable in the instantIn the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took.
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Amrit Bhanu Shali Vs. National Insurance Co. Ltd. | the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32.Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” (ii)Re Question - Selection of multiplier 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M- 17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 16. Admittedly both the parents, Ist appellant- Amrit Bhanu Shali (father) and 2nd appellant- Smt. Sarlaben (mother) have been held to be dependents of deceased- Ritesh Bhanu Shali and, therefore, the Tribunal held that the Ist appellant and 2nd appellant have the right to get the compensation. On the date of the accident the 3rd appellant- Mamta was not married but by the time the case was heard by the Tribunal the 3rd appellant-Mamta had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being dependents, i.e., father and the mother, the Tribunal rightly restricted the ‘personal and living expenses’ of the deceased to 50% and contribution to the family was required to be taken as 50% as per the decision of this Court in the case of Sarla Verma (supra). 17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of Sarla Verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and brining it down to the multiplier of 13. 19. The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and living expenses’ of the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact. | 1[ds]17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and livingof the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact.The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and livingof the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact. | 1 | 2,956 | 650 | ### Instruction:
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the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32.Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” (ii)Re Question - Selection of multiplier 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M- 17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 16. Admittedly both the parents, Ist appellant- Amrit Bhanu Shali (father) and 2nd appellant- Smt. Sarlaben (mother) have been held to be dependents of deceased- Ritesh Bhanu Shali and, therefore, the Tribunal held that the Ist appellant and 2nd appellant have the right to get the compensation. On the date of the accident the 3rd appellant- Mamta was not married but by the time the case was heard by the Tribunal the 3rd appellant-Mamta had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being dependents, i.e., father and the mother, the Tribunal rightly restricted the ‘personal and living expenses’ of the deceased to 50% and contribution to the family was required to be taken as 50% as per the decision of this Court in the case of Sarla Verma (supra). 17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of Sarla Verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and brining it down to the multiplier of 13. 19. The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and living expenses’ of the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact.
### Response:
1
### Explanation:
17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and livingof the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact.The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000/- for computing the compensation. If the 50% of the income of Rs.99,000/- is deducted towards ‘personal and livingof the deceased the contribution to the family will be 50%, i.e., Rs.49,500/- per annum. At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500/- x 17 =Rs.8,41,500/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the affection of the son, i.e., Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses and Rs.2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000/- (Rs.8,41,500/- + Rs.1,00,000/- + Rs.10,000/- + Rs.2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact.
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COMMISSIONER OF WEALTH TAX, BANGALORE Vs. SUDIN PANDURANG TIMBLO (SMT) | these appeals filed by the Commissioner of Wealth-tax against the assessee in appeals of 1980, and the wife of the assessee in appeals of 1990 are as follows. They were governed by the Portuguese Civil Code. They were married according to custom, without having any ante-nuptial agreement to keep the property separately. For the assessment years 1971-72 to 1973-74, the Wealth-tax Officer calculated the value of the movable properties consisting mostly of shares in limited companies, deposits in bank and loan to company of the husband as belonging to the body of individuals comprising; the: husband and wife. He then worked out the net wealth of the communion; by deducting from it Rs. 1,50,000 u/s 5(1)(xxxii) read with Section 5(1A) of the Wealth-tax Act. After allowing the exemption and deducting the, liabilities of the communion, the net wealth of the communion was arrived at and fifty per cent. of it was determined as the net wealth of the husband. The order was maintained in appeal. The Tribunal allowed the appeals of the assessee against which the Department moved an application u/s 27(1) of the Act. The reference was heard and decided by the High Court of Bombay by answering the question against the Department and in favour of the assessee. Against this order, the Department did not move any application u/s 27(3) but approached this Court under Article 136 as the High Court had relied on a decision of the Bombay High Court in which a certificate of fitness to appeal had been granted and the appeal was pending in this Court. The SLP was allowed and leave was granted by this Court after hearing learned Counsel for parties. These are Appeals Nos. 1596 to 1598 of 1980. 2. In the other set of appeals, the Wealth-tax Officer passed assessment orders for the assessment years 1972-73 and 1973-74 against the wife in 1973. But, by the time the appeals came up for hearing before the Appellate Assistant Commissioner, the judgment of the High Court in the case of the husband had been pronounced. Consequently, the appellate authority allowed the appeals. The appellate order was maintained by the Tribunal. The applications filed u/s 27(1) before the Tribunal and Section 27(3) before the High Court were rejected. The appellant, therefore, approached this Court under Article 136 in which notice was issued as a similar matter was pending. 3. All these appeals are being disposed of by this common order. 4. The question of law which was referred for the opinion of the High Court in Wealth-tax Reference No. 44 of 1977.See Commissioner of Wealth-tax, Karnataka Vs. Vasudeva V. Dempo, , out of which the appeals of 1980 were filed was as under (at page 292): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that each of the spouses married under the Portuguese Civil Code is entitled to deduction u/s 5 of the Wealth-tax Act, 1957, separately ? 5. The High-Court, after elaborate discussion of the provisions of law and various decisions under the income tax Act on the construction of the expression association of persons, held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, in the absence of any ante-nuptial agreement providing for their separate holding of respective property, it did not follow that the prospective husband and wife get married with the purpose or object or motive of Constituting themselves as joint holders of the property. The Bench held that, under the Portuguese Civil Code, the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The Bench further held that, in order to constitute an association of persons, there should have been, for purposes of the Wealth-tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of the communion formed as a result of marriage under the Portuguese Civil Code did not have that character. Consequently, no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed u/s 4(1)(b) of the Act read with Rule 2 of the Wealth-tax Rules. The Bench also referred to an instruction issued by the Department in 1975 inviting attention to the Boards letter dated December 12, 1969, where it was stated that a married individual in Goa, Daman and Diu, who was governed by the system of community of property and who had not entered into an ante-nuptial agreement of the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of wealth-tax. It was mentioned that the Board was further advised that the exemptions u/s 5 of the Wealth-tax Act were admissible to each one of the spouses as individual. The Bench, however, felt that the instructions having been issued in 1975, it was debatable if the decision could be based only on it. 6. We have heard learned Counsel for the parties at length. We do not propose to express any considered opinion as learned Counsel appearing for the Department fairly accepted that the Act had been amended on April 1, 1989, and what was provided in the circular has how been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further, the Department; as is clear from the circular, at all points of time, intended that the spouses in Goa should be treated as individuals and granted exemption accordingly. We, however, consider it necessary to observe that the circulars issued by the Department are normally meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the Department justified in pursuing the matter further in this Court. | 0[ds]6. We have heard learned Counsel for the parties at length. We do not propose to express any considered opinion as learned Counsel appearing for the Department fairly accepted that the Act had been amended on April 1, 1989, and what was provided in the circular has how been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further, the Department; as is clear from the circular, at all points of time, intended that the spouses in Goa should be treated as individuals and granted exemption accordingly. We, however, consider it necessary to observe that the circulars issued by the Department are normally meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the Department justified in pursuing the matter further in this Court. | 0 | 1,130 | 163 | ### 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:
these appeals filed by the Commissioner of Wealth-tax against the assessee in appeals of 1980, and the wife of the assessee in appeals of 1990 are as follows. They were governed by the Portuguese Civil Code. They were married according to custom, without having any ante-nuptial agreement to keep the property separately. For the assessment years 1971-72 to 1973-74, the Wealth-tax Officer calculated the value of the movable properties consisting mostly of shares in limited companies, deposits in bank and loan to company of the husband as belonging to the body of individuals comprising; the: husband and wife. He then worked out the net wealth of the communion; by deducting from it Rs. 1,50,000 u/s 5(1)(xxxii) read with Section 5(1A) of the Wealth-tax Act. After allowing the exemption and deducting the, liabilities of the communion, the net wealth of the communion was arrived at and fifty per cent. of it was determined as the net wealth of the husband. The order was maintained in appeal. The Tribunal allowed the appeals of the assessee against which the Department moved an application u/s 27(1) of the Act. The reference was heard and decided by the High Court of Bombay by answering the question against the Department and in favour of the assessee. Against this order, the Department did not move any application u/s 27(3) but approached this Court under Article 136 as the High Court had relied on a decision of the Bombay High Court in which a certificate of fitness to appeal had been granted and the appeal was pending in this Court. The SLP was allowed and leave was granted by this Court after hearing learned Counsel for parties. These are Appeals Nos. 1596 to 1598 of 1980. 2. In the other set of appeals, the Wealth-tax Officer passed assessment orders for the assessment years 1972-73 and 1973-74 against the wife in 1973. But, by the time the appeals came up for hearing before the Appellate Assistant Commissioner, the judgment of the High Court in the case of the husband had been pronounced. Consequently, the appellate authority allowed the appeals. The appellate order was maintained by the Tribunal. The applications filed u/s 27(1) before the Tribunal and Section 27(3) before the High Court were rejected. The appellant, therefore, approached this Court under Article 136 in which notice was issued as a similar matter was pending. 3. All these appeals are being disposed of by this common order. 4. The question of law which was referred for the opinion of the High Court in Wealth-tax Reference No. 44 of 1977.See Commissioner of Wealth-tax, Karnataka Vs. Vasudeva V. Dempo, , out of which the appeals of 1980 were filed was as under (at page 292): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that each of the spouses married under the Portuguese Civil Code is entitled to deduction u/s 5 of the Wealth-tax Act, 1957, separately ? 5. The High-Court, after elaborate discussion of the provisions of law and various decisions under the income tax Act on the construction of the expression association of persons, held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, in the absence of any ante-nuptial agreement providing for their separate holding of respective property, it did not follow that the prospective husband and wife get married with the purpose or object or motive of Constituting themselves as joint holders of the property. The Bench held that, under the Portuguese Civil Code, the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The Bench further held that, in order to constitute an association of persons, there should have been, for purposes of the Wealth-tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of the communion formed as a result of marriage under the Portuguese Civil Code did not have that character. Consequently, no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed u/s 4(1)(b) of the Act read with Rule 2 of the Wealth-tax Rules. The Bench also referred to an instruction issued by the Department in 1975 inviting attention to the Boards letter dated December 12, 1969, where it was stated that a married individual in Goa, Daman and Diu, who was governed by the system of community of property and who had not entered into an ante-nuptial agreement of the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of wealth-tax. It was mentioned that the Board was further advised that the exemptions u/s 5 of the Wealth-tax Act were admissible to each one of the spouses as individual. The Bench, however, felt that the instructions having been issued in 1975, it was debatable if the decision could be based only on it. 6. We have heard learned Counsel for the parties at length. We do not propose to express any considered opinion as learned Counsel appearing for the Department fairly accepted that the Act had been amended on April 1, 1989, and what was provided in the circular has how been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further, the Department; as is clear from the circular, at all points of time, intended that the spouses in Goa should be treated as individuals and granted exemption accordingly. We, however, consider it necessary to observe that the circulars issued by the Department are normally meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the Department justified in pursuing the matter further in this Court.
### Response:
0
### Explanation:
6. We have heard learned Counsel for the parties at length. We do not propose to express any considered opinion as learned Counsel appearing for the Department fairly accepted that the Act had been amended on April 1, 1989, and what was provided in the circular has how been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further, the Department; as is clear from the circular, at all points of time, intended that the spouses in Goa should be treated as individuals and granted exemption accordingly. We, however, consider it necessary to observe that the circulars issued by the Department are normally meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the Department justified in pursuing the matter further in this Court.
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Union of India and Ors Vs. Abhishek Pandey | L. NAGESWARA RAO, J. 1. These Appeals are filed against the judgment of the Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter, the Tribunal) by which the order of discharge of the Respondent dated 17.01.2013 was set aside. The Tribunal directed the payment of back wages to the extent of 25 per cent. 2. The Respondent was enrolled in the Indian Air Force on 28.09.2004. A warning was issued to the Respondent on 18.04.2012. By that time, there were seven entries of punishment (3 Red Ink and 4 Black Ink) in the Conduct Sheet of the Respondent. The Respondent was informed by the said letter dated 18.04.2012 that he was already in the category of habitual offender. In accordance with the Habitual Offenders Policy, the habitual offenders can be considered for discharge from service under Rule 15 (2) (g) (ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the Air Force Rules, 1969 (hereinafter, the Rules), under the Clause His Service No Longer Required Unsuitable for Retention in the Air Force. The Respondent was cautioned and counselled to mend himself and desist from acts of indiscipline. He was also warned that any addition of another punishment entry would render him liable for discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2) (k) read in conjunction with Rule 15(2) of the Rules. 3. A notice was issued to the Respondent on 11.07.2012, directing him to show cause as to why he should not be discharged from service under Rule 15 (2) (g) (ii) of the Rules. There was a reference to the warning letter dated 18.04.2012 in the show cause notice. Even after the issuance of the warning letter dated 18.04.2012, the Respondent indulged in acts of indiscipline on 10.06.2012 and was awarded Severe Reprimand on 13.06.2012 by his Commanding Officer. As the Respondent was not showing any improvement, he was found to be a poor Airman material and not amenable to service discipline. The Respondent submitted his explanation on 05.08.2012 in which he admitted that he had indulged in acts of indiscipline due to bad company. He requested for a final chance to improve. After considering the explanation submitted by the Respondent, the Air Officer-in-Charge approved the discharge of the Respondent from service under Rule 15 (2) (g) (ii) of the Rules as he was found unsuitable for the Indian Air Force. 4. The Respondent challenged his discharge before the Tribunal by filing Original Application No.125 of 2013. He relied upon a Policy dated 16.12.1996 governing the habitual offenders/ potential habitual offenders. He contended before the Tribunal that he was entitled for a second warning before an order of discharge could have been passed against him in accordance with the Policy. The Tribunal accepted the submission made by the Respondent and allowed the application. The order of discharge was set aside. The Respondent was held to be entitled to all consequential benefits, including back wages which were restricted to 25 per cent. The Review Application filed by the Appellant was rejected by the Tribunal. 5. The only point that arises for our consideration in the present case is the interpretation of the Policy dealing with habitual offenders. The Air Force Policy dated 16.12.1996 was issued by the Air Force Headquarters, prescribing the procedure to be followed while processing the cases of habitual offenders. According to the Policy, an Airman is entitled to be issued a precautionary warning (being a habitual offender). The Airman has to be informed that he would be getting another opportunity to mend himself and any addition of another punishment entry, either Red or Black, would result in his discharge from the service. Para 2 (b) of the Policy provides that whenever the case of an Airman is considered by the competent authority for final orders and he is afforded one more chance, a warning letter is required to be issued to him by his Commanding Officer again. The said warning letter shall be treated as a second time warning. Para 3 of the Policy postulates that habitual offenders shall be served with a show cause notice calling upon them to explain the reasons as to why the proposed action of discharge from service shall not be taken against them. The habitual offenders are entitled for an opportunity to submit their explanation before an order of discharge is passed. 6. The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances. 7. The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996. | 1[ds]The Air Force Policy dated 16.12.1996 was issued by the Air Force Headquarters, prescribing the procedure to be followed while processing the cases of habitual offenders. According to the Policy, an Airman is entitled to be issued a precautionary warning (being a habitual offender). The Airman has to be informed that he would be getting another opportunity to mend himself and any addition of another punishment entry, either Red or Black, would result in his discharge from the service. Para 2 (b) of the Policy provides that whenever the case of an Airman is considered by the competent authority for final orders and he is afforded one more chance, a warning letter is required to be issued to him by his Commanding Officer again. The said warning letter shall be treated as a second time warning. Para 3 of the Policy postulates that habitual offenders shall be served with a show cause notice calling upon them to explain the reasons as to why the proposed action of discharge from service shall not be taken against them. The habitual offenders are entitled for an opportunity to submit their explanation before an order of discharge is passed6. The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances7. The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996. | 1 | 1,111 | 489 | ### Instruction:
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L. NAGESWARA RAO, J. 1. These Appeals are filed against the judgment of the Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter, the Tribunal) by which the order of discharge of the Respondent dated 17.01.2013 was set aside. The Tribunal directed the payment of back wages to the extent of 25 per cent. 2. The Respondent was enrolled in the Indian Air Force on 28.09.2004. A warning was issued to the Respondent on 18.04.2012. By that time, there were seven entries of punishment (3 Red Ink and 4 Black Ink) in the Conduct Sheet of the Respondent. The Respondent was informed by the said letter dated 18.04.2012 that he was already in the category of habitual offender. In accordance with the Habitual Offenders Policy, the habitual offenders can be considered for discharge from service under Rule 15 (2) (g) (ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the Air Force Rules, 1969 (hereinafter, the Rules), under the Clause His Service No Longer Required Unsuitable for Retention in the Air Force. The Respondent was cautioned and counselled to mend himself and desist from acts of indiscipline. He was also warned that any addition of another punishment entry would render him liable for discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2) (k) read in conjunction with Rule 15(2) of the Rules. 3. A notice was issued to the Respondent on 11.07.2012, directing him to show cause as to why he should not be discharged from service under Rule 15 (2) (g) (ii) of the Rules. There was a reference to the warning letter dated 18.04.2012 in the show cause notice. Even after the issuance of the warning letter dated 18.04.2012, the Respondent indulged in acts of indiscipline on 10.06.2012 and was awarded Severe Reprimand on 13.06.2012 by his Commanding Officer. As the Respondent was not showing any improvement, he was found to be a poor Airman material and not amenable to service discipline. The Respondent submitted his explanation on 05.08.2012 in which he admitted that he had indulged in acts of indiscipline due to bad company. He requested for a final chance to improve. After considering the explanation submitted by the Respondent, the Air Officer-in-Charge approved the discharge of the Respondent from service under Rule 15 (2) (g) (ii) of the Rules as he was found unsuitable for the Indian Air Force. 4. The Respondent challenged his discharge before the Tribunal by filing Original Application No.125 of 2013. He relied upon a Policy dated 16.12.1996 governing the habitual offenders/ potential habitual offenders. He contended before the Tribunal that he was entitled for a second warning before an order of discharge could have been passed against him in accordance with the Policy. The Tribunal accepted the submission made by the Respondent and allowed the application. The order of discharge was set aside. The Respondent was held to be entitled to all consequential benefits, including back wages which were restricted to 25 per cent. The Review Application filed by the Appellant was rejected by the Tribunal. 5. The only point that arises for our consideration in the present case is the interpretation of the Policy dealing with habitual offenders. The Air Force Policy dated 16.12.1996 was issued by the Air Force Headquarters, prescribing the procedure to be followed while processing the cases of habitual offenders. According to the Policy, an Airman is entitled to be issued a precautionary warning (being a habitual offender). The Airman has to be informed that he would be getting another opportunity to mend himself and any addition of another punishment entry, either Red or Black, would result in his discharge from the service. Para 2 (b) of the Policy provides that whenever the case of an Airman is considered by the competent authority for final orders and he is afforded one more chance, a warning letter is required to be issued to him by his Commanding Officer again. The said warning letter shall be treated as a second time warning. Para 3 of the Policy postulates that habitual offenders shall be served with a show cause notice calling upon them to explain the reasons as to why the proposed action of discharge from service shall not be taken against them. The habitual offenders are entitled for an opportunity to submit their explanation before an order of discharge is passed. 6. The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances. 7. The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996.
### Response:
1
### Explanation:
The Air Force Policy dated 16.12.1996 was issued by the Air Force Headquarters, prescribing the procedure to be followed while processing the cases of habitual offenders. According to the Policy, an Airman is entitled to be issued a precautionary warning (being a habitual offender). The Airman has to be informed that he would be getting another opportunity to mend himself and any addition of another punishment entry, either Red or Black, would result in his discharge from the service. Para 2 (b) of the Policy provides that whenever the case of an Airman is considered by the competent authority for final orders and he is afforded one more chance, a warning letter is required to be issued to him by his Commanding Officer again. The said warning letter shall be treated as a second time warning. Para 3 of the Policy postulates that habitual offenders shall be served with a show cause notice calling upon them to explain the reasons as to why the proposed action of discharge from service shall not be taken against them. The habitual offenders are entitled for an opportunity to submit their explanation before an order of discharge is passed6. The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances7. The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996.
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Manager, M/S. Pyarchand Kesarimal Ponwal Bidi Factory Vs. Omkar Laxman Thange & Ors | is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.9. Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of employment with the factory was ever terminated or that the respondent gave his consent, express or implied to his contract of service being transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office. Unless , therefore, it is held from the circumstances relied upon by Mr. Phadke that there was a transfer of the consent of service or that Respondent 1 gave his consent, express or implied, to such a transfer, Respondent 1 would continue to be the servant of factory. Since the case has been remanded to the Assistant Commissioner, we refrain from making any observations as regards the effect of the admissions said to have been made by Respondent 1 and relied on by the Assistant Commissioner.10. Mr. Phadke, however, relied on Jestamani Gulabrai Dholkia v. Scindia Steam Navigation Co., 1961-2 SCR 811 = (AIR 1961 SC 627 ) in support of his contention that there was a transfer of the contract of employment and that it was not a mere transfer of the benefit of the services of Respondent 1. In that case the appellants were originally in the service of the Scindia Steam Navigation Company. In 1937 Air Services of India Ltd., was incorporated. In 1943, the Scindias purchased the ASI and by 1946 ASI became a full-fledged subsidiary of the Scindias. Between 1946 to 1951 the Scindias transferred several of their employees including the appellants to the ASI. The Scindias had a number of such subsidiary companies and it was usual for them to transfer their employees to such companies and also to recall them whenever necessary. In 1953, the Government of India decided to nationalise the airlines operating in India with effect from June 1953. On April 6, 1953 the appellants wrote to the Scindias to recall them to their original posts but the Scindias refused to do so as they were not in a position to absorb them. They pointed out that a Bill, called the Air Corporation Bill, 1953, was pending before Parliament, that under clause 20 thereof persons working with ASI on the appointed day would become the employees of the Corporation, that under that clause they had the option to resign if they did not wish to join the Corporation and that if the appellants exercised that option, the Scindias would treat them as having resigned from their service. The Act was passed on May 28, 1953. Section 20 of the Act provided that every employee of an existing air company employed by such company prior to July 1, 1952 and still in its employment immediately before the appointed day, shall, in so far as such employee is employed in connection with the undertaking which has vested in the Corporation by virtue of the Act, become as from the appointed date, the employee of the Corporation in which the undertaking has vested. On June 8, 1953 the appellants made a demand that if the Corporation were to retrench any person from the staff loaned to ASI within the first five years, the Scindias should take them back. The Scindias refused. None of the appellants had exercised the option provided by Section 20 (1). On August 1, 1953, ASI became vested in the Corporation and Section 20 (1) came into force as from that date. The appellants contended inter alia that the contract of service between them and the Scindias was not transferable. The contention was rejected on the ground that by reason of Section 20 (1) the contract of service of the appellants stood transferred to the Corporation and that though the appellants were not originally recruited by ASI and were transferred by the Scindias to the said company, they were the employees of ASI and were such employees on the appointed day and since they had not exercised the option under Section 20 (1) they became the employees of the Corporation by operation of that provision. The Scindias, therefore, were no longer concerned with them. It is true that the appellants were transferred to ASI on condition that they would receive the same remuneration and other benefits as they were getting in the Scindias and further that it was possible to contend that Scindias alone could dismiss them. But the learned Judge explained that these were special terms applicable to the appellants. But in spite of them they still had become the employees of the ASI and were such employees on the appointed day. It seems that this conclusion was reached on the footing that since ASI was the subsidiary company of the Scindias like several other subsidiary companies, and it was usual for the Scindias to transfer any of their employees to such subsidiary companies, the appellants on their transfer were deemed to have commenced to become the employees of ASI in spite of right of the Scindias to recall them whenever necessary and further that the appellants continued to be and were the employees of the ASI on the appointed day and were, therefore, governed by Section 20 (1) of the Act. It is clear that this was a case of employees becoming the employees of the Corporation by virtue of the operation of a statute. The decision, therefore, is not an authority for the proposition that an employer can transfer his employee to a third party without the consent of such employee or without terminating the contract of employment with him. That being the position the case of 1961-2 SCR 811 = (AIR 1961 SC 627 ) (supra) cannot assist Mr. Phadke. | 0[ds]5. As to the first contention, it would not be correct to say that the High Court made out a new case for the first time for Respondent 1 which was not pleaded by him before the Assistant Commissioner. In Para 1 of his application he had expressly averred that about three years after his employment in the factory he had been ordered to work in the head office. In reply to the application the appellants conceded that though Respondent 1 was first employed in the factory and had worked there for about three years, he had thereafter been transferred to and been working as a clerk in the head office. There was, however, no averment in that reply that the contract of service of Respondent 1 with the said factory was at any time put an end to or that when he was directed to work in the head office a fresh contract of service was entered into between him and the head office. The Assistant Commissioner in his said order held that the head office and the factory were two separate establishments registered under two different Acts, and, therefore, subject to different provisions of law. He further held that since Respondent 1 was not actually working in the factory and his name did not figure in the factorys muster roll and was not paid his wages by the factory, the applicant could not be said to be an employee of the said factory. In his revision application before the Industrial Court, Respondent 1 made an express plea that when he was directed to work in the Head office, he had received no notice from the factory that his services were terminated there or that he had henceforth become the employee of the head office. It is clear from these pleadings that it was not for the first time in the High Court that Respondent 1 contended as to the incompetence of the head office to take disciplinary action against him and to pass the order of dismissal. The first contention of Mr. Phadke, therefore, cannot be accepted.6. As regard the second and the third contentions, there is no dispute that though the head office and the said factory belong to the same proprietors, they were always treated as two distinct entities registered under two different Acts, that Respondent 1 was employed first in the factory where he worked for 2 or 3 years and was thereafter ordered to work at the head office where admittedly he worked for about six years before the impugned order terminating his services was passed. The question, therefore, which the Assistant Commissioner and the Industrial Court had to decide, in view of the pleadings of the parties, was whether Respondent 1 had ceased to be the employee of the factory and was in the employment of the head office at the time when the impugned order wasA contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract to service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment. The only thing that happens in such a case is that he carries out the orders of master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer. | 0 | 4,451 | 803 | ### Instruction:
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is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.9. Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of employment with the factory was ever terminated or that the respondent gave his consent, express or implied to his contract of service being transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office. Unless , therefore, it is held from the circumstances relied upon by Mr. Phadke that there was a transfer of the consent of service or that Respondent 1 gave his consent, express or implied, to such a transfer, Respondent 1 would continue to be the servant of factory. Since the case has been remanded to the Assistant Commissioner, we refrain from making any observations as regards the effect of the admissions said to have been made by Respondent 1 and relied on by the Assistant Commissioner.10. Mr. Phadke, however, relied on Jestamani Gulabrai Dholkia v. Scindia Steam Navigation Co., 1961-2 SCR 811 = (AIR 1961 SC 627 ) in support of his contention that there was a transfer of the contract of employment and that it was not a mere transfer of the benefit of the services of Respondent 1. In that case the appellants were originally in the service of the Scindia Steam Navigation Company. In 1937 Air Services of India Ltd., was incorporated. In 1943, the Scindias purchased the ASI and by 1946 ASI became a full-fledged subsidiary of the Scindias. Between 1946 to 1951 the Scindias transferred several of their employees including the appellants to the ASI. The Scindias had a number of such subsidiary companies and it was usual for them to transfer their employees to such companies and also to recall them whenever necessary. In 1953, the Government of India decided to nationalise the airlines operating in India with effect from June 1953. On April 6, 1953 the appellants wrote to the Scindias to recall them to their original posts but the Scindias refused to do so as they were not in a position to absorb them. They pointed out that a Bill, called the Air Corporation Bill, 1953, was pending before Parliament, that under clause 20 thereof persons working with ASI on the appointed day would become the employees of the Corporation, that under that clause they had the option to resign if they did not wish to join the Corporation and that if the appellants exercised that option, the Scindias would treat them as having resigned from their service. The Act was passed on May 28, 1953. Section 20 of the Act provided that every employee of an existing air company employed by such company prior to July 1, 1952 and still in its employment immediately before the appointed day, shall, in so far as such employee is employed in connection with the undertaking which has vested in the Corporation by virtue of the Act, become as from the appointed date, the employee of the Corporation in which the undertaking has vested. On June 8, 1953 the appellants made a demand that if the Corporation were to retrench any person from the staff loaned to ASI within the first five years, the Scindias should take them back. The Scindias refused. None of the appellants had exercised the option provided by Section 20 (1). On August 1, 1953, ASI became vested in the Corporation and Section 20 (1) came into force as from that date. The appellants contended inter alia that the contract of service between them and the Scindias was not transferable. The contention was rejected on the ground that by reason of Section 20 (1) the contract of service of the appellants stood transferred to the Corporation and that though the appellants were not originally recruited by ASI and were transferred by the Scindias to the said company, they were the employees of ASI and were such employees on the appointed day and since they had not exercised the option under Section 20 (1) they became the employees of the Corporation by operation of that provision. The Scindias, therefore, were no longer concerned with them. It is true that the appellants were transferred to ASI on condition that they would receive the same remuneration and other benefits as they were getting in the Scindias and further that it was possible to contend that Scindias alone could dismiss them. But the learned Judge explained that these were special terms applicable to the appellants. But in spite of them they still had become the employees of the ASI and were such employees on the appointed day. It seems that this conclusion was reached on the footing that since ASI was the subsidiary company of the Scindias like several other subsidiary companies, and it was usual for the Scindias to transfer any of their employees to such subsidiary companies, the appellants on their transfer were deemed to have commenced to become the employees of ASI in spite of right of the Scindias to recall them whenever necessary and further that the appellants continued to be and were the employees of the ASI on the appointed day and were, therefore, governed by Section 20 (1) of the Act. It is clear that this was a case of employees becoming the employees of the Corporation by virtue of the operation of a statute. The decision, therefore, is not an authority for the proposition that an employer can transfer his employee to a third party without the consent of such employee or without terminating the contract of employment with him. That being the position the case of 1961-2 SCR 811 = (AIR 1961 SC 627 ) (supra) cannot assist Mr. Phadke.
### Response:
0
### Explanation:
5. As to the first contention, it would not be correct to say that the High Court made out a new case for the first time for Respondent 1 which was not pleaded by him before the Assistant Commissioner. In Para 1 of his application he had expressly averred that about three years after his employment in the factory he had been ordered to work in the head office. In reply to the application the appellants conceded that though Respondent 1 was first employed in the factory and had worked there for about three years, he had thereafter been transferred to and been working as a clerk in the head office. There was, however, no averment in that reply that the contract of service of Respondent 1 with the said factory was at any time put an end to or that when he was directed to work in the head office a fresh contract of service was entered into between him and the head office. The Assistant Commissioner in his said order held that the head office and the factory were two separate establishments registered under two different Acts, and, therefore, subject to different provisions of law. He further held that since Respondent 1 was not actually working in the factory and his name did not figure in the factorys muster roll and was not paid his wages by the factory, the applicant could not be said to be an employee of the said factory. In his revision application before the Industrial Court, Respondent 1 made an express plea that when he was directed to work in the Head office, he had received no notice from the factory that his services were terminated there or that he had henceforth become the employee of the head office. It is clear from these pleadings that it was not for the first time in the High Court that Respondent 1 contended as to the incompetence of the head office to take disciplinary action against him and to pass the order of dismissal. The first contention of Mr. Phadke, therefore, cannot be accepted.6. As regard the second and the third contentions, there is no dispute that though the head office and the said factory belong to the same proprietors, they were always treated as two distinct entities registered under two different Acts, that Respondent 1 was employed first in the factory where he worked for 2 or 3 years and was thereafter ordered to work at the head office where admittedly he worked for about six years before the impugned order terminating his services was passed. The question, therefore, which the Assistant Commissioner and the Industrial Court had to decide, in view of the pleadings of the parties, was whether Respondent 1 had ceased to be the employee of the factory and was in the employment of the head office at the time when the impugned order wasA contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract to service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment. The only thing that happens in such a case is that he carries out the orders of master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.
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K.M. Viswanatha Pillai Vs. K.M. Shanmugham Pillai | and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement. (20) permit means the document issued by the commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle. (22) private carrier means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of Section 42. (23) public carrier means an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the goods of persons associated with that person, body, association or company for the purpose of having their goods transported. Section 42 (1) on which the High Court has relied reads thus: 42 (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used;......... This section does not, in our view, on the language required that the owner himself should obtain the permit; it only requires the owner that the support vehicle shall not be used except in accordance with the conditions of the permit. The High Court would add the words to him after the words permit granted, but, in our view, there is no justification for inserting those words. The definition of the permit itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owners name. The same inference follows from the definitions of private carrier and public carrier. This court came to the same conclusion in Veerappa Pillai v. Raman and Raman, 1952 SCR 583 = (AIR 1952 SC 192 ). 9. Some reliance was placed on the amendments made in S. 60 (1) (c). The section as amended reads: 60 (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit- (c) if the holder of the permit ceases to (own)*the vehicle or vehicles covered by the permit, .......... *Substituted by S. 54 of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956) for possess (w. e. f. 16-2-1957). There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal, AIR 1963 All 383 at p. 388 rightly gives the effect of the amendment. Srivastava, J., observed: A reference was, however, made to Cl. (c) of sub-section (1) of Section 60 of the Act and on the basis of that clause it was urged that it assumed that the permit holder should be the owner of the vehicle. That clause provides for one of the contingencies in which a permit can be cancelled. According to it it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency.It may or may not cancel it, even if the holder of the permit ceases to own the vehicle covered by it. But it is by no means necessary that Cl. (c) should be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter. On its basis, therefore, it cannot be held to be a requirement of the Act that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it. 10. We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar, 1963-2 Mad LJ 20 = (AIR 1963 Mad 413 ) that S. 42 (1) contemplates that only an owner will have a permit is erroneous. 11. The decision of the Andhra High Court in Chavali Venkataswami v. Chavali Kotavva, 1959-2 Andh WR 407 = (AIR 1962 Andh Pra 14) that S.60 (1) (c) of the Act envisages the grant of a permit to the owner alone must also be dissented from. 12. The learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits benami. In India benami transactions are recognised and not frowned upon. (See Gur Narayan v. Sheolal Singh, ILR 46 Cal 566 = (AIR 1958 PC 140). In C.I.T. Gujarat v. Abdul Rahim and Co., 1965-55 ITR 651 = (AIR 1965 SC 1703 ) it was held by this court that the registration of the partnership deed under S.26-A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the benamidar of V. | 1[ds]There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal, AIR 1963 All 383 at p. 388 rightly gives the effect of the amendment10. We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar, 1963-2 Mad LJ 20 = (AIR 1963 Mad 413 ) that S. 42 (1) contemplates that only an owner will have a permit is erroneousThis section does not, in our view, on the language required that the owner himself should obtain the permit; it only requires the owner that the support vehicle shall not be used except in accordance with the conditions of the permit. The High Court would add the words to him after the words permit granted, but, in our view, there is no justification for inserting those words. The definition of the permit itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owners name. The same inference follows from the definitions of private carrier and public carrier. This court came to the same conclusion in Veerappa Pillai v. Raman and Raman, 1952 SCR 583 = (AIR 1952 SC 192 ). | 1 | 2,016 | 270 | ### 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:
and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement. (20) permit means the document issued by the commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle. (22) private carrier means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of Section 42. (23) public carrier means an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the goods of persons associated with that person, body, association or company for the purpose of having their goods transported. Section 42 (1) on which the High Court has relied reads thus: 42 (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used;......... This section does not, in our view, on the language required that the owner himself should obtain the permit; it only requires the owner that the support vehicle shall not be used except in accordance with the conditions of the permit. The High Court would add the words to him after the words permit granted, but, in our view, there is no justification for inserting those words. The definition of the permit itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owners name. The same inference follows from the definitions of private carrier and public carrier. This court came to the same conclusion in Veerappa Pillai v. Raman and Raman, 1952 SCR 583 = (AIR 1952 SC 192 ). 9. Some reliance was placed on the amendments made in S. 60 (1) (c). The section as amended reads: 60 (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit- (c) if the holder of the permit ceases to (own)*the vehicle or vehicles covered by the permit, .......... *Substituted by S. 54 of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956) for possess (w. e. f. 16-2-1957). There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal, AIR 1963 All 383 at p. 388 rightly gives the effect of the amendment. Srivastava, J., observed: A reference was, however, made to Cl. (c) of sub-section (1) of Section 60 of the Act and on the basis of that clause it was urged that it assumed that the permit holder should be the owner of the vehicle. That clause provides for one of the contingencies in which a permit can be cancelled. According to it it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency.It may or may not cancel it, even if the holder of the permit ceases to own the vehicle covered by it. But it is by no means necessary that Cl. (c) should be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter. On its basis, therefore, it cannot be held to be a requirement of the Act that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it. 10. We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar, 1963-2 Mad LJ 20 = (AIR 1963 Mad 413 ) that S. 42 (1) contemplates that only an owner will have a permit is erroneous. 11. The decision of the Andhra High Court in Chavali Venkataswami v. Chavali Kotavva, 1959-2 Andh WR 407 = (AIR 1962 Andh Pra 14) that S.60 (1) (c) of the Act envisages the grant of a permit to the owner alone must also be dissented from. 12. The learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits benami. In India benami transactions are recognised and not frowned upon. (See Gur Narayan v. Sheolal Singh, ILR 46 Cal 566 = (AIR 1958 PC 140). In C.I.T. Gujarat v. Abdul Rahim and Co., 1965-55 ITR 651 = (AIR 1965 SC 1703 ) it was held by this court that the registration of the partnership deed under S.26-A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the benamidar of V.
### Response:
1
### Explanation:
There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal, AIR 1963 All 383 at p. 388 rightly gives the effect of the amendment10. We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar, 1963-2 Mad LJ 20 = (AIR 1963 Mad 413 ) that S. 42 (1) contemplates that only an owner will have a permit is erroneousThis section does not, in our view, on the language required that the owner himself should obtain the permit; it only requires the owner that the support vehicle shall not be used except in accordance with the conditions of the permit. The High Court would add the words to him after the words permit granted, but, in our view, there is no justification for inserting those words. The definition of the permit itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owners name. The same inference follows from the definitions of private carrier and public carrier. This court came to the same conclusion in Veerappa Pillai v. Raman and Raman, 1952 SCR 583 = (AIR 1952 SC 192 ).
|
Boloram Bordoloi Vs. Lakhimi Gaolia Bank & Ors | authority. It is submitted that having regard to charges framed against the appellant, punishment imposed cannot be said to be disproportionate. Further it is submitted that after enquiry is completed it is always open for the disciplinary authority to indicate the punishment in the show cause notice, by enclosing a copy of the Enquiry Report. It is submitted that the respondents have followed procedure contemplated under the Rules and the procedure adopted is in conformity with the ratio laid down by this Court in the case of Managing Director, ECIL, Hyderabad (supra). It is submitted that having regard to facts of the case, the judgment in the case of Mohammad Badruddin (supra) has no application to support the case of the appellant. 6. Having heard the learned counsel for the parties, we have perused the impugned order, the order of the learned Single Judge and other material placed on record. 7. The appellant was working as a Manager of the respondent-bank. A perusal of the charges, which are held to be proved by the Enquiry Officer, reveal that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc. The Enquiry Officer, after considering oral and documentary evidence on record, has held that all the charges are proved. Based on the findings recorded by Enquiry Officer, the disciplinary authority has tentatively decided to impose punishment of compulsory retirement. Disciplinary authority has issued show cause notice dated 30.07.2005 by enclosing a copy of the enquiry report. In response to the show cause notice, the appellant has submitted his comments vide letter dated 16.08.2005 indicating that due to work pressure some operational lapses have occurred. Further he has also pleaded that if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source. After filing the response to the show cause notice, order is passed by disciplinary authority imposing punishment of compulsory retirement. After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report. Though the learned counsel for the appellant has argued that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, but there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra). In the aforesaid judgment of this Court it is held that delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision. A perusal of the show cause notice dated 30.07.2005 itself makes it clear that along with the show cause notice itself enquiry report was also enclosed. As such, it cannot be said that the procedure prescribed under the rules was not followed by respondent-bank. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Boards decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons. 8. Even, the last submission of the learned counsel for the appellant that the punishment imposed is disproportionate to the gravity of charges, also cannot be accepted. The charges framed against the appellant in the departmental enquiry are serious and grave. If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying – he is ready to bear the loss suffered by the bank on account of his lapses. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in-built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted. | 0[ds]8. Even, the last submission of the learned counsel for the appellant that the punishment imposed is disproportionate to the gravity of charges, also cannot be accepted. The charges framed against the appellant in the departmental enquiry are serious and grave. If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying – he is ready to bear the loss suffered by the bank on account of his lapses. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in-built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted.7. The appellant was working as a Manager of the respondent-bank. A perusal of the charges, which are held to be proved by the Enquiry Officer, reveal that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc. The Enquiry Officer, after considering oral and documentary evidence on record, has held that all the charges are proved. Based on the findings recorded by Enquiry Officer, the disciplinary authority has tentatively decided to impose punishment of compulsory retirement. Disciplinary authority has issued show cause notice dated 30.07.2005 by enclosing a copy of the enquiry report. In response to the show cause notice, the appellant has submitted his comments vide letter dated 16.08.2005 indicating that due to work pressure some operational lapses have occurred. Further he has also pleaded that if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source. After filing the response to the show cause notice, order is passed by disciplinary authority imposing punishment of compulsory retirement. After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report. Though the learned counsel for the appellant has argued that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, but there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra). In the aforesaid judgment of this Court it is held that delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision. A perusal of the show cause notice dated 30.07.2005 itself makes it clear that along with the show cause notice itself enquiry report was also enclosed. As such, it cannot be said that the procedure prescribed under the rules was not followed by respondent-bank. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Boards decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons. | 0 | 1,881 | 941 | ### 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:
authority. It is submitted that having regard to charges framed against the appellant, punishment imposed cannot be said to be disproportionate. Further it is submitted that after enquiry is completed it is always open for the disciplinary authority to indicate the punishment in the show cause notice, by enclosing a copy of the Enquiry Report. It is submitted that the respondents have followed procedure contemplated under the Rules and the procedure adopted is in conformity with the ratio laid down by this Court in the case of Managing Director, ECIL, Hyderabad (supra). It is submitted that having regard to facts of the case, the judgment in the case of Mohammad Badruddin (supra) has no application to support the case of the appellant. 6. Having heard the learned counsel for the parties, we have perused the impugned order, the order of the learned Single Judge and other material placed on record. 7. The appellant was working as a Manager of the respondent-bank. A perusal of the charges, which are held to be proved by the Enquiry Officer, reveal that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc. The Enquiry Officer, after considering oral and documentary evidence on record, has held that all the charges are proved. Based on the findings recorded by Enquiry Officer, the disciplinary authority has tentatively decided to impose punishment of compulsory retirement. Disciplinary authority has issued show cause notice dated 30.07.2005 by enclosing a copy of the enquiry report. In response to the show cause notice, the appellant has submitted his comments vide letter dated 16.08.2005 indicating that due to work pressure some operational lapses have occurred. Further he has also pleaded that if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source. After filing the response to the show cause notice, order is passed by disciplinary authority imposing punishment of compulsory retirement. After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report. Though the learned counsel for the appellant has argued that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, but there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra). In the aforesaid judgment of this Court it is held that delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision. A perusal of the show cause notice dated 30.07.2005 itself makes it clear that along with the show cause notice itself enquiry report was also enclosed. As such, it cannot be said that the procedure prescribed under the rules was not followed by respondent-bank. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Boards decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons. 8. Even, the last submission of the learned counsel for the appellant that the punishment imposed is disproportionate to the gravity of charges, also cannot be accepted. The charges framed against the appellant in the departmental enquiry are serious and grave. If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying – he is ready to bear the loss suffered by the bank on account of his lapses. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in-built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted.
### Response:
0
### Explanation:
8. Even, the last submission of the learned counsel for the appellant that the punishment imposed is disproportionate to the gravity of charges, also cannot be accepted. The charges framed against the appellant in the departmental enquiry are serious and grave. If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying – he is ready to bear the loss suffered by the bank on account of his lapses. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in-built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted.7. The appellant was working as a Manager of the respondent-bank. A perusal of the charges, which are held to be proved by the Enquiry Officer, reveal that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc. The Enquiry Officer, after considering oral and documentary evidence on record, has held that all the charges are proved. Based on the findings recorded by Enquiry Officer, the disciplinary authority has tentatively decided to impose punishment of compulsory retirement. Disciplinary authority has issued show cause notice dated 30.07.2005 by enclosing a copy of the enquiry report. In response to the show cause notice, the appellant has submitted his comments vide letter dated 16.08.2005 indicating that due to work pressure some operational lapses have occurred. Further he has also pleaded that if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source. After filing the response to the show cause notice, order is passed by disciplinary authority imposing punishment of compulsory retirement. After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report. Though the learned counsel for the appellant has argued that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, but there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra). In the aforesaid judgment of this Court it is held that delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision. A perusal of the show cause notice dated 30.07.2005 itself makes it clear that along with the show cause notice itself enquiry report was also enclosed. As such, it cannot be said that the procedure prescribed under the rules was not followed by respondent-bank. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Boards decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons.
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The Indure Ltd. & Another Vs. Commercial Tax Officer & Others | of the territory of India. Conversely, in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be sapped (sic snapped). 6. Counsel for the appellant fairly conceded that the facts in K.G. Khosla & Co. case were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear to govern the question arising in these appeals, but he contended that a different view has been taken by this Court in Binani Bros. (P) Ltd. v. Union of India and in view of this later decision the High Court ought not to have applied the ratio of K.G. Khosla & Co. decision to this case. It is not possible to accept this contention as in our view Binani Bros. case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence and the goods were imported on the strength of such import licence and not on the strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was no term or condition prohibiting diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the integral connection or inextricable link between the transactions of sale and the actual import making the sales in the course of import. In fact as pointed out earlier, the movement of the goods from the foreign country to India was in pursuance of the requirements flowing from the contract of sale between the respondent- assessee and the local purchaser and as such the sales in question must be held to be in the course of import. 40. Learned Counsel for Respondents has placed reliance on Binani Bros. supra specially para 14, reproduced hereinbelow: 14. Be that as it may, in the case under consideration we are concerned with the sales made by the petitioner as principal to the DGS&D. No doubt, for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of import. In other words, the movement of goods was occasioned by the contracts for purchase which the petitioner entered into with the foreign sellers. No movement of goods in the course of import took place in pursuance to the contracts of sale made by the petitioner with the DGS&D. The petitioners sales to DGS&D were distinct and separate from his purchases from foreign sellers. To put it differently, the sales by the petitioner to the DGS&D did not occasion the import. It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods. The purchases of the goods and import of the goods in pursuance to the contracts of purchases were, no doubt, for sale to the DGS&D. But it would not follow that the sales or contracts of sales to DGS&D occasioned the movement of the goods into this country. There was no privity of contract between DGS&D and the foreign sellers. The foreign sellers did not enter into any contract by themselves or through the agency of the petitioner to the DGS&D and the movement of goods from the foreign countries was not occasioned on account of the sales by the petitioner to DGS&D. 41. However, we are of the considered opinion that it has not been the Respondents case that the MS Pipes imported by the Company were not used for the erection and commissioning of the plant for N.T.P.C. Thus, from the facts of Binani Bros. supra, it is clearly spelt out that the facts of the case in hand are different. Thus, the ratio of the said case would not be applicable to it. 42. In fact, the ground, sought to be raised for the first time before this Court that MS Pipes were put to manufacturing process and thereby converted into distinct end product had not been raised before any of the Authorities earlier. It was not the Respondents case that pipes so imported were not necessary components for the erection and commissioning of the plant. Admittedly, the said pipes were used as components in the Ash Handling Plant in the same condition as they were imported without altering its originality. Thus, the ground which was sought to be raised before us for the first time has not been considered by any of the Authorities and in our opinion rightly so. Thus, we also do not deem it fit and proper to consider the same at this belated stage. 43. Apart from the aforesaid reasons, we are also of the considered opinion that such import would fall within the Constitutional umbrella. It is also to be noted that Company had admittedly imported the goods into India for completion of the Project on Turnkey Basis of N.T.P.C. Thus, by virtue of Article 286(1)(b) of the Constitution, it would not be taxable. For ready reference, Article 286(1)(b) of the Constitution is reproduced hereinbelow: 286. Restrictions as to imposition of tax on the sale or purchase of goods - (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. See (1998) (7) SCC 19 Minerals and Metals Trading Corporation of India Ltd. v. Sales Tax Officer. | 1[ds]We have already mentioned hereinabove that alongwith MS Pipes, the disputed goods in this Appeal, the Company had also imported 11 other components/items to be used in the plant for its erection and commissioning. Other 11 imported goods, utilised by the Company in the erection of the plant have been held to be sales in the course of import made by Company to N.T.P.C and accordingly benefit under Section 5(2) of the Act has been granted by the concerned State Government. It was only this particular component MS Pipes, which has been denied this benefit.35. Sales Tax Assessment Order passed by Assistant Commissioner (Commercial Tax), Ghaziabad, State Of Uttar Pradesh has been filed before us to show that such benefit has been accrued to the Company for remaining 11 items. Since MS Pipes were shipped at Calcutta Port, thus it was Respondents who treated them exigible for Sales Tax. If the benefit of the Sales Tax exemption has been given to the Company for 11 components/items there is no reason why it is to be denied in respect of MS Pipes. This we are quoting so that the facts may be put on record correctly.37. In the case in hand, it is to be noted that import had occasioned only on account of the covenant entered into between the Company and N.T.P.C. and the imported pipes were used exclusively for erection and commissioning of the plant. Respondents have failed to establish that these pipes were not used in the plant of N.T.P.C. Similar question had again come up for consideration before two learned Judges of this Court reported in (1997) 7 SCC 190 State of Maharashtra v. Embee Corporation, Bombay wherein it has been held as under:9. In this case (K.G. Khosla and Co.(P) Ltd. v. Dy. Commissioner of Commercial Taxes), the Constitution Bench specifically held that sale need not precede the import and this decision is a complete answer to the argument advanced by the learned Counsel for the appellant.10. Learned Counsel then tried to argue that the decision of the Constitution Bench in Khosla case is not applicable to the present case as in the said case, the materials were to be inspected at Belgium and London and thereafter the goods were to enter into India. This argument is not correct. In Khosla case the inspection of goods was to be carried out in Belgium as well as on arrival into India. In the present case, the inspection was to be done on arrival of goods into India and as such, there is no distinction on facts between the present case and that of Khosla. Learned Counsel then urged that the decision of the Constitution Bench in Khosla case has not been correctly decided and as such this case be referred to a larger Bench. We have considered the matter and found that Khosla case has held the field nearly more than three decades and its correctness has not been doubted so far. We, therefore, reject the prayer of learned Counsel for the appellant.11. Learned Counsel then urged that this case is covered by decisions of this Court in the cases of Binani Bros. (P) Ltd. Union of India; Mohd. Serajuddin v. State of Orissa and K. Gopinathan Nair v. State of Kerala. The decision of this Court in the case of Binani Bros. is distinguishable as in that case no obligation was imposed on the appellant to supply the imported goods to DGS&D after they had been imported and the same could be directed to other channels. Similarly, the decision of this Court in the case of Mohd. Serajuddin is not applicable to the present case as in that case it was found that the appellant in the said case sold the goods directly to the Corporation which entered into a contract with a foreign buyer and it was found that the immediate cause of export was the contract between the foreign buyer who was the importer and the Corporation who was the exporter. Such sales were described as back-to-back contract. This decision rested on the peculiar facts of that case. We are, therefore, of the view that the appellant cannot derive any assistance from the said decision. The last case which was brought to our notice was K. Gopinathan Nair v. State of Kerala. In the said case, on facts it was found that on account of the sale to CCI by foreign exporters raw cashewnuts were imported into India. The importer being the CCI and not the local user, this Court held that principles evolved by it in para 12 of the judgment were not applicable to that case. We do not, therefore, find that this decision is helpful to the appellants. The result of the aforesaid discussion is that while interpreting the expression sale occasions import occurring in Sub-section (2) of Section 5 of the Act, it is not necessary that a completed sale should precede the import.41. However, we are of the considered opinion that it has not been the Respondents case that the MS Pipes imported by the Company were not used for the erection and commissioning of the plant for N.T.P.C. Thus, from the facts of Binani Bros. supra, it is clearly spelt out that the facts of the case in hand are different. Thus, the ratio of the said case would not be applicable to it.42. In fact, the ground, sought to be raised for the first time before this Court that MS Pipes were put to manufacturing process and thereby converted into distinct end product had not been raised before any of the Authorities earlier. It was not the Respondents case that pipes so imported were not necessary components for the erection and commissioning of the plant. Admittedly, the said pipes were used as components in the Ash Handling Plant in the same condition as they were imported without altering its originality. Thus, the ground which was sought to be raised before us for the first time has not been considered by any of the Authorities and in our opinion rightly so. Thus, we also do not deem it fit and proper to consider the same at this belated stage.43. Apart from the aforesaid reasons, we are also of the considered opinion that such import would fall within the Constitutional umbrella. It is also to be noted that Company had admittedly imported the goods into India for completion of the Project on Turnkey Basis of N.T.P.C. Thus, by virtue of Article 286(1)(b) of the Constitution, it would not be taxable38. Test to determine if the sales were in the course of import has been elaborately considered in a judgment of learned three Judges Bench of this Court reported in (1985) 4 SCC 119 Deputy Commissioner of Agricultural Income Tax And Sales Tax, Ernakulam v. Indian Explosives Ltd.39. Para 4 thereof dealing with the issue is reproduced hereinbelow and finally in para 6 while distinguishing (1974) 1 SCC 459 in the matter of Binani Bros. (P) Ltd. v. Union of India and Ors. it has been held as under:4. The test of integral connection or inextricable link between the sale and the actual import or export in order that the sale could become a sale in the course of import or export has been clearly enunciated by this Court in Ben Gorm Nilgiri Plantations Company case. There the question related to sale of tea which was claimed to be in the course of export out of the territory of India and though by majority it was held that the sales in question were not in the course of export, the Court at p. 711 of the Report laid down the testA sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the course of export of goods out of the territory of India.Conversely, in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be sapped (sic. Counsel for the appellant fairly conceded that the facts in K.G. Khosla & Co. case were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear to govern the question arising in these appeals, but he contended that a different view has been taken by this Court in Binani Bros. (P) Ltd. v. Union of India and in view of this later decision the High Court ought not to have applied the ratio of K.G. Khosla & Co. decision to this case. It is not possible to accept this contention as in our view Binani Bros. case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence and the goods were imported on the strength of such import licence and not on the strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was no term or condition prohibiting diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the integral connection or inextricable link between the transactions of sale and the actual import making the sales in the course of import. In fact as pointed out earlier, the movement of the goods from the foreign country to India was in pursuance of the requirements flowing from the contract of sale between the respondent- assessee and the local purchaser and as such the sales in question must be held to be in the course of import. | 1 | 6,215 | 2,011 | ### 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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of the territory of India. Conversely, in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be sapped (sic snapped). 6. Counsel for the appellant fairly conceded that the facts in K.G. Khosla & Co. case were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear to govern the question arising in these appeals, but he contended that a different view has been taken by this Court in Binani Bros. (P) Ltd. v. Union of India and in view of this later decision the High Court ought not to have applied the ratio of K.G. Khosla & Co. decision to this case. It is not possible to accept this contention as in our view Binani Bros. case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence and the goods were imported on the strength of such import licence and not on the strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was no term or condition prohibiting diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the integral connection or inextricable link between the transactions of sale and the actual import making the sales in the course of import. In fact as pointed out earlier, the movement of the goods from the foreign country to India was in pursuance of the requirements flowing from the contract of sale between the respondent- assessee and the local purchaser and as such the sales in question must be held to be in the course of import. 40. Learned Counsel for Respondents has placed reliance on Binani Bros. supra specially para 14, reproduced hereinbelow: 14. Be that as it may, in the case under consideration we are concerned with the sales made by the petitioner as principal to the DGS&D. No doubt, for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of import. In other words, the movement of goods was occasioned by the contracts for purchase which the petitioner entered into with the foreign sellers. No movement of goods in the course of import took place in pursuance to the contracts of sale made by the petitioner with the DGS&D. The petitioners sales to DGS&D were distinct and separate from his purchases from foreign sellers. To put it differently, the sales by the petitioner to the DGS&D did not occasion the import. It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods. The purchases of the goods and import of the goods in pursuance to the contracts of purchases were, no doubt, for sale to the DGS&D. But it would not follow that the sales or contracts of sales to DGS&D occasioned the movement of the goods into this country. There was no privity of contract between DGS&D and the foreign sellers. The foreign sellers did not enter into any contract by themselves or through the agency of the petitioner to the DGS&D and the movement of goods from the foreign countries was not occasioned on account of the sales by the petitioner to DGS&D. 41. However, we are of the considered opinion that it has not been the Respondents case that the MS Pipes imported by the Company were not used for the erection and commissioning of the plant for N.T.P.C. Thus, from the facts of Binani Bros. supra, it is clearly spelt out that the facts of the case in hand are different. Thus, the ratio of the said case would not be applicable to it. 42. In fact, the ground, sought to be raised for the first time before this Court that MS Pipes were put to manufacturing process and thereby converted into distinct end product had not been raised before any of the Authorities earlier. It was not the Respondents case that pipes so imported were not necessary components for the erection and commissioning of the plant. Admittedly, the said pipes were used as components in the Ash Handling Plant in the same condition as they were imported without altering its originality. Thus, the ground which was sought to be raised before us for the first time has not been considered by any of the Authorities and in our opinion rightly so. Thus, we also do not deem it fit and proper to consider the same at this belated stage. 43. Apart from the aforesaid reasons, we are also of the considered opinion that such import would fall within the Constitutional umbrella. It is also to be noted that Company had admittedly imported the goods into India for completion of the Project on Turnkey Basis of N.T.P.C. Thus, by virtue of Article 286(1)(b) of the Constitution, it would not be taxable. For ready reference, Article 286(1)(b) of the Constitution is reproduced hereinbelow: 286. Restrictions as to imposition of tax on the sale or purchase of goods - (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. See (1998) (7) SCC 19 Minerals and Metals Trading Corporation of India Ltd. v. Sales Tax Officer.
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for the erection and commissioning of the plant for N.T.P.C. Thus, from the facts of Binani Bros. supra, it is clearly spelt out that the facts of the case in hand are different. Thus, the ratio of the said case would not be applicable to it.42. In fact, the ground, sought to be raised for the first time before this Court that MS Pipes were put to manufacturing process and thereby converted into distinct end product had not been raised before any of the Authorities earlier. It was not the Respondents case that pipes so imported were not necessary components for the erection and commissioning of the plant. Admittedly, the said pipes were used as components in the Ash Handling Plant in the same condition as they were imported without altering its originality. Thus, the ground which was sought to be raised before us for the first time has not been considered by any of the Authorities and in our opinion rightly so. Thus, we also do not deem it fit and proper to consider the same at this belated stage.43. Apart from the aforesaid reasons, we are also of the considered opinion that such import would fall within the Constitutional umbrella. It is also to be noted that Company had admittedly imported the goods into India for completion of the Project on Turnkey Basis of N.T.P.C. Thus, by virtue of Article 286(1)(b) of the Constitution, it would not be taxable38. Test to determine if the sales were in the course of import has been elaborately considered in a judgment of learned three Judges Bench of this Court reported in (1985) 4 SCC 119 Deputy Commissioner of Agricultural Income Tax And Sales Tax, Ernakulam v. Indian Explosives Ltd.39. Para 4 thereof dealing with the issue is reproduced hereinbelow and finally in para 6 while distinguishing (1974) 1 SCC 459 in the matter of Binani Bros. (P) Ltd. v. Union of India and Ors. it has been held as under:4. The test of integral connection or inextricable link between the sale and the actual import or export in order that the sale could become a sale in the course of import or export has been clearly enunciated by this Court in Ben Gorm Nilgiri Plantations Company case. There the question related to sale of tea which was claimed to be in the course of export out of the territory of India and though by majority it was held that the sales in question were not in the course of export, the Court at p. 711 of the Report laid down the testA sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the course of export of goods out of the territory of India.Conversely, in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be sapped (sic. Counsel for the appellant fairly conceded that the facts in K.G. Khosla & Co. case were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear to govern the question arising in these appeals, but he contended that a different view has been taken by this Court in Binani Bros. (P) Ltd. v. Union of India and in view of this later decision the High Court ought not to have applied the ratio of K.G. Khosla & Co. decision to this case. It is not possible to accept this contention as in our view Binani Bros. case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence and the goods were imported on the strength of such import licence and not on the strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was no term or condition prohibiting diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the integral connection or inextricable link between the transactions of sale and the actual import making the sales in the course of import. In fact as pointed out earlier, the movement of the goods from the foreign country to India was in pursuance of the requirements flowing from the contract of sale between the respondent- assessee and the local purchaser and as such the sales in question must be held to be in the course of import.
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UNION OF INDIA & ANOTHER ETC. ETC Vs. M/S V.V.F. LIMITED & ANOTHER ETC.ETC | of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. 15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary. 16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active. | 1[ds]12. Now, so far as the decisions relied upon by the learned counsel appearing on behalf of the respective original writ petitioners-respondents herein are concerned, once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies, none of the decisions relied upon shall be applicable to the facts of the case on hand14. Applying the law laid down by this Court in the aforesaid decisions to the subsequent notifications/industrial policies which were the subject-matter before the High Court and for the reasons stated hereinbelow, we are of the opinion that the respective notifications/industrial policies impugned before the High Courts can be said to be clarificatory in nature and it can be defined as an Act to remove doubts. It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away14.1 The main objective of the earlier respective notifications/industrial policies was to encourage the entrepreneurs to put new industries in the area so as to generate employment and for that an incentive was offered to get back by way of refund the excise duty paid either in cash or PLA, namely, the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization paid by CENV AT credit. The same was subject to conditions that it will be applied to the new industrial units, i.e. the units which are set up on and after the publication of the said notification in the Official Gazette, i.e. not later than 31.07.2003. The notification was modified from time to time. However, during the operation of the earlier notifications, it was noticed that the provision of granting refund of cash paid portion of duty and eligibility of credit the entire amount of duty to the buyers of such excisable goods had prompted certain unscrupulous manufacturers to indulge in different types of tax evasion tactics. It was revealed on analysis of cases booked by the Excise Department and even the representations received from the Industry Association about misuse of exemptions granted by the Government, which was meant to be available only for genuine manufacturersTherefore, the Government came out with the impugned notifications/industrial policies that the refund of excise duty shall be provided on actual and calculated on the basis of actual value addition. On a fair reading of the earlier notifications/industrial policies, it is clear that the object of granting the refund was to refund the excise duty paid on genuine manufacturing activities. The intention would not have been that irrespective of actual manufacturing/manufacturing activities and even if the goods are not actually manufactured, but are manufactured on paper, there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active. | 1 | 11,761 | 1,572 | ### 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 excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. 15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary. 16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active.
### Response:
1
### Explanation:
there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active.
|
M/S Ram Barai Singh & Co Vs. State Of Bihar | in refunding the security deposit and against the direction for recovery of labour escalation cost. The respondents did not raise plea of arbitration clause and that writ petition was disposed of on 20.09.2006 allowing 12% interest on account of delay in payment of security amount. The issue of labour escalation cost was remanded back to the concerned Engineer-in-Chief who was directed to pass a reasoned order after hearing the appellant or his representative, within a fixed period. The appellant was granted liberty to seek his remedy if he was aggrieved by the order that may be passed by the Engineer-in-Chief. 6. The respondents preferred a Letters Patent Appeal bearing No.877 of 2006 in which also they did not raise the issue of alternative remedy by way of arbitration clause. The LPA was disposed of on 11.12.2007 with the following direction : ".... .... Since the matter is going on remand, the State has to apply its mind afresh to the facts and circumstances of the case and, therefore, the direction, as quoted above would be juxtaposition to the order of remand.The question of payment of interest by either side, however, will abide by the ultimate determination of the question by the State of Bihar.It goes without saying that the matter would be examined and re-determined by the State expeditiously." 7. The Engineer-in-Chief passed a fresh order on 21.05.2008 against the appellant over-ruling the various grounds and objections raised by the appellant in his representation relating to merits of the matter as well as jurisdiction of the Engineer-in-Chief who, according to appellant, had no role in the issue which was to be finalized at the stage of Executive Engineer and the Superintending Engineer. The appellant challenged the order of Engineer-in-Chief through writ petition bearing C.W.J.C. No.10173 of 2008 which was allowed by the learned Single Judge on 18.02.2009 by a reasoned order. There is no dispute that respondents filed a counter affidavit but did not raise any objection of alternative remedy by way of an arbitration clause in the agreement dated 06.02.1989. 8. The learned Single Judge allowed the writ petition preferred by the appellant by setting aside the order of the Engineer-in-Chief dated 21.05.2008. The Court found that the Engineer-in-Chief had raised demand of interest in the year 2008 along with refund of labour escalation cost only to offset the States liability to pay interest on refund of security deposit after a delay of about 10 years. Thus the action of the respondents was held to be for ulterior reasons and objection to labour escalation cost after a long gap from its actual payment was held to be arbitrary and unreasonable. 9. The aforesaid order of the learned Single Judge dated 18.02.2009 was set aside by the Division Bench by the order under appeal on the ground already noticed earlier. 10. We find ourselves in agreement with case of the appellant that the Division Bench failed to notice the relevant facts including the history of earlier litigation. It also failed to notice that the agreement itself had worked out long back and in the earlier round of litigation as well as in the present round the respondents never raised any objection on the basis of arbitration clause. 11. The Division Bench noticed the judgment of this Court in the case of State of U.P. & Ors. v. Bridge & Roof Company (India) Ltd. (1996) 6 SCC 22 as well as in the case of ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553 for coming to the conclusion that where the contract itself provides an effective alternative remedy by way of reference to arbitration, it is good ground for declining to exercise extraordinary jurisdiction under Article 226 of the Constitution of India and that the Court will not permit recourse to other remedy without invoking the remedy by way of arbitration, "unless, of course, both the parties to the dispute agree on another mode of dispute resolution." 12. In our considered view, the aforesaid two decisions did not warrant setting aside of the judgment of learned Single Judge without going into merits and dismissing the writ petition at appellate stage on ground of alternative remedy when no such objection was taken by the respondents either before the writ court or even in the Memorandum of Letters Patent Appeal. In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition "not maintainable" as wrongly held by the Division Bench. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to. 13. In our view, learned counsel for the appellant has made out a case for setting aside the order under appeal both on the facts noticed above which show that there was no existing agreement because the work had been completed and payment had already been made long back and also on the question of law raised in this appeal that a constitutional remedy through a writ petition cannot be held to be not available and not maintainable on account of an alternative remedy. It is for the writ court to consider whether in an appropriate case, writ petitioner should be relegated to avail alternative remedy or not. But once writ petition is heard at length and decided against one or the other party on merits, such a decision/order cannot be held to be bad in law only on the ground that writ petition was not maintainable due to availability of alternative remedy.14. | 1[ds]In our considered view, the aforesaid two decisions did not warrant setting aside of the judgment of learned Single Judge without going into merits and dismissing the writ petition at appellate stage on ground of alternative remedy when no such objection was taken by the respondents either before the writ court or even in the Memorandum of Letters Patent Appeal. In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition "not maintainable" as wrongly held by the Division Bench. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resortedour view, learned counsel for the appellant has made out a case for setting aside the order under appeal both on the facts noticed above which show that there was no existing agreement because the work had been completed and payment had already been made long back and also on the question of law raised in this appeal that a constitutional remedy through a writ petition cannot be held to be not available and not maintainable on account of an alternative remedy. It is for the writ court to consider whether in an appropriate case, writ petitioner should be relegated to avail alternative remedy or not. But once writ petition is heard at length and decided against one or the other party on merits, such a decision/order cannot be held to be bad in law only on the ground that writ petition was not maintainable due to availability of alternative remedy. | 1 | 1,453 | 350 | ### 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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in refunding the security deposit and against the direction for recovery of labour escalation cost. The respondents did not raise plea of arbitration clause and that writ petition was disposed of on 20.09.2006 allowing 12% interest on account of delay in payment of security amount. The issue of labour escalation cost was remanded back to the concerned Engineer-in-Chief who was directed to pass a reasoned order after hearing the appellant or his representative, within a fixed period. The appellant was granted liberty to seek his remedy if he was aggrieved by the order that may be passed by the Engineer-in-Chief. 6. The respondents preferred a Letters Patent Appeal bearing No.877 of 2006 in which also they did not raise the issue of alternative remedy by way of arbitration clause. The LPA was disposed of on 11.12.2007 with the following direction : ".... .... Since the matter is going on remand, the State has to apply its mind afresh to the facts and circumstances of the case and, therefore, the direction, as quoted above would be juxtaposition to the order of remand.The question of payment of interest by either side, however, will abide by the ultimate determination of the question by the State of Bihar.It goes without saying that the matter would be examined and re-determined by the State expeditiously." 7. The Engineer-in-Chief passed a fresh order on 21.05.2008 against the appellant over-ruling the various grounds and objections raised by the appellant in his representation relating to merits of the matter as well as jurisdiction of the Engineer-in-Chief who, according to appellant, had no role in the issue which was to be finalized at the stage of Executive Engineer and the Superintending Engineer. The appellant challenged the order of Engineer-in-Chief through writ petition bearing C.W.J.C. No.10173 of 2008 which was allowed by the learned Single Judge on 18.02.2009 by a reasoned order. There is no dispute that respondents filed a counter affidavit but did not raise any objection of alternative remedy by way of an arbitration clause in the agreement dated 06.02.1989. 8. The learned Single Judge allowed the writ petition preferred by the appellant by setting aside the order of the Engineer-in-Chief dated 21.05.2008. The Court found that the Engineer-in-Chief had raised demand of interest in the year 2008 along with refund of labour escalation cost only to offset the States liability to pay interest on refund of security deposit after a delay of about 10 years. Thus the action of the respondents was held to be for ulterior reasons and objection to labour escalation cost after a long gap from its actual payment was held to be arbitrary and unreasonable. 9. The aforesaid order of the learned Single Judge dated 18.02.2009 was set aside by the Division Bench by the order under appeal on the ground already noticed earlier. 10. We find ourselves in agreement with case of the appellant that the Division Bench failed to notice the relevant facts including the history of earlier litigation. It also failed to notice that the agreement itself had worked out long back and in the earlier round of litigation as well as in the present round the respondents never raised any objection on the basis of arbitration clause. 11. The Division Bench noticed the judgment of this Court in the case of State of U.P. & Ors. v. Bridge & Roof Company (India) Ltd. (1996) 6 SCC 22 as well as in the case of ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553 for coming to the conclusion that where the contract itself provides an effective alternative remedy by way of reference to arbitration, it is good ground for declining to exercise extraordinary jurisdiction under Article 226 of the Constitution of India and that the Court will not permit recourse to other remedy without invoking the remedy by way of arbitration, "unless, of course, both the parties to the dispute agree on another mode of dispute resolution." 12. In our considered view, the aforesaid two decisions did not warrant setting aside of the judgment of learned Single Judge without going into merits and dismissing the writ petition at appellate stage on ground of alternative remedy when no such objection was taken by the respondents either before the writ court or even in the Memorandum of Letters Patent Appeal. In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition "not maintainable" as wrongly held by the Division Bench. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to. 13. In our view, learned counsel for the appellant has made out a case for setting aside the order under appeal both on the facts noticed above which show that there was no existing agreement because the work had been completed and payment had already been made long back and also on the question of law raised in this appeal that a constitutional remedy through a writ petition cannot be held to be not available and not maintainable on account of an alternative remedy. It is for the writ court to consider whether in an appropriate case, writ petitioner should be relegated to avail alternative remedy or not. But once writ petition is heard at length and decided against one or the other party on merits, such a decision/order cannot be held to be bad in law only on the ground that writ petition was not maintainable due to availability of alternative remedy.14.
### Response:
1
### Explanation:
In our considered view, the aforesaid two decisions did not warrant setting aside of the judgment of learned Single Judge without going into merits and dismissing the writ petition at appellate stage on ground of alternative remedy when no such objection was taken by the respondents either before the writ court or even in the Memorandum of Letters Patent Appeal. In our view, a constitutional remedy by way of writ petition is always available to an aggrieved party and an arbitration clause in an agreement between the parties cannot ipso facto render a writ petition "not maintainable" as wrongly held by the Division Bench. Availability of alternative remedy is definitely a permissible ground for refusal by a writ court to exercise its jurisdiction in appropriate cases. But once the respondents had not objected to entertainment of the writ petition on ground of availability of alternative remedy, the final judgment rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resortedour view, learned counsel for the appellant has made out a case for setting aside the order under appeal both on the facts noticed above which show that there was no existing agreement because the work had been completed and payment had already been made long back and also on the question of law raised in this appeal that a constitutional remedy through a writ petition cannot be held to be not available and not maintainable on account of an alternative remedy. It is for the writ court to consider whether in an appropriate case, writ petitioner should be relegated to avail alternative remedy or not. But once writ petition is heard at length and decided against one or the other party on merits, such a decision/order cannot be held to be bad in law only on the ground that writ petition was not maintainable due to availability of alternative remedy.
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The State Of Madras Vs. M/S. Radio And Electricals Ltd. Etc | is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form B that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceeding for assessment of tax. If therefore goods are specified in the certificate of registration in Form B, it is not open, when a claim is made in respect of the purchase of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his business. It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration, but if the class of goods is included in the certificate of registration in Form B he cannot say that the class of goods should not have been specified. 12. The Act seeks to impose tax on transactions, amongst others, of sale and purchase in inter-State trade and commerce. Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on to the consumers of goods because it enters into the price paid by them. Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has provided in respect of sales of declared goods which have special importance in inter-State trade or commerce, and other classes of goods which are purchased at an intermediate stage in the stream of trade or commerce prescribed low rates of taxation, when transactions take place in the course of inter-State trade or commerce. Indisputably the seller can have in these transactions no control over the purchaser. He has to rely upon the representations made to him. He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificate but his duty extends no further. If he is satisfied on these two matters, on a representation made to him in the manner prescribed by the Rules and the representation is recorded in the certificate in Form C the selling dealer is under no further obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used. If the purchasing dealer misapplies the goods he incurs a penalty under S. 10. That penalty is incurred by the purchasing dealer and cannot be visited upon the selling dealer. The selling clearer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form C He cannot hold an enquiry whether the notified authority who issued the certificate of registration acted properly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the goods for a purpose other than the purpose mentioned in the certificate in Form C. There is nothing in the Act or the Rules that for infraction of the law committed by the purchasing dealer by misapplication of the good after he purchased them, or for any fraudulent misrepresentation by him penalty may be visited upon the selling dealer. 13. Counsel for the appellant contended that the view expressed by the High Court in the judgments under appeal was any case erroneous, because they held that a C Form certificate produced by the selling dealer is conclusive of the right to the concessional rate of tax, and that no enquiry whatever may be made by the assessing authority. He invited our attention to the following passage from the judgment which is under appeal in Civil Appeal No. 335 of 1165 :"We are of the opinion that whether or not the goods were in feet used for the stated purposes or even usable for such a purpose, so long as the purchasing dealer has furnished the required declaration to the selling dealer, the selling dealer becomes under law entitled to the benefit of Section 8 (1) of the Act. It is no function of the selling dealer to enter into a judicial examination of whether the goods are in fact used or usable for the manufacture or processing of goods for sale by the purchasing dealer. The purchasing dealer declares that they are required for such a purpose and are further so specified in his form of registration granted by the sales tax authorities. It is not the function of the selling dealer to enquire whether the requirement of the purchasing dealer is bona fide or even is or is not within the certificate of registration of that dealer." It is implicit in the context in which these observations occur that if the purchasing dealer holds a valid certificate specifying the goods which are to be purchased, and furnishes the required declaration to the selling dealer, the selling dealer becomes on production of the certificate entitled to the benefit of S. 8 (1). It is of course open to the sales tax authority to satisfy himself that the goods which are purchased by the purchasing dealer under certificate in Form C are specified in the purchasing dealers certificate in Form B. Observation of the High Court that the selling dealer may not enquire whether the requirement is not within the certificate of registration of the purchasing dealer is not accurate. But whether the goods specified in the registration certificate in Form B can be used for the purpose is not for the selling dealer to determine. That is a matter which has already been determined by the notified authority issuing the certificate of registration. | 0[ds]It is implicit in the context in which these observations occur that if the purchasing dealer holds a valid certificate specifying the goods which are to be purchased, and furnishes the required declaration to the selling dealer, the selling dealer becomes on production of the certificate entitled to the benefit of S. 8 (1). It is of course open to the sales tax authority to satisfy himself that the goods which are purchased by the purchasing dealer under certificate in Form C are specified in the purchasing dealers certificate in Form B. Observation of the High Court that the selling dealer may not enquire whether the requirement is not within the certificate of registration of the purchasing dealer is not accurate. But whether the goods specified in the registration certificate in Form B can be used for the purpose is not for the selling dealer to determine. That is a matter which has already been determined by the notified authority issuing the certificate of registration9. The scheme of the Rules read with the Act is that the purchasing dealer as well as the selling dealer must register themselves under the Central Sales Tax Act. If declared goods are specified in the certificate of registration of the purchasing dealer and if it be certified that the goods are intended for resale by him, the sale is subject to concessional rate of tax under Section 8 (1). In respect of sales of other classes of goods specified in the certificate of registration of the purchasing dealer, if the goods are purchased either for resale by him, or for use in manufacture of goods for sale, or for use in the execution of contracts, the concessional rate of tax is available, provided the selling dealer obtains from the purchasing dealer the declaration in the prescribed form only filled in and signed by the latter containing the particulars that the goods are ordered, purchased or supplied under a certain specific order, bill or cash memo or chalan, for all or any of the purposes mentioned and that the goods are covered by the registration certificate of the purchaser described therein and issued under the Act. If the certificate is defective in that it does not set out all the details, or that it contains false particulars about the order, bill, cash memo or chalan, or about the Number and date of the registration certificate and specifications of goods covered by the certificate of the purchasing dealer, the transaction will not be admitted to concessional ratesBut that contention is not borne out by the Act and the Rules. Goods may be sold to a purchasing dealer under a single order, bill, cash memo or chalan, one part to be used for resale, another to be used in the execution of contracts, and the rest in manufacture of goods for sale, but it is not enacted that separate certificates should be issued each relating to the quantity intended to be used for a specified purpose. A purchasing dealer may again be carrying on business as a manufacturer, as a building, installation or repair contractor, and as a dealer in goods and if he purchasers goods specified in his certificate, but without making up his mind about the precise purpose for which the goods will be used, provided it is one of the purposes, he will still be complying with the statutory requirements if he declared in Form C that the goods are purchased for more than one purpose. The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only, even though under his certificate of registration he is entitled to purchase goods of the classes mentioned in S. 8 (3) (b) for more purposes than one. When the purchasing dealer furnishes a certificate in Form C without striking out any of the four alternatives, it is a representation that the goods purchased are intended to be used for all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules. The Sales Tax authority is, of course, competent to scrutinise the certificate to find out whether the certificate is genuine. He may also, in appropriate cases, when he has reasonable grounds to believe that the goods purchased are not covered by the registration certificate of the purchasing dealer, make an enquiry about the contents of the certificate of registration of the purchasing dealer. But it is not for the Tax Officer to hold an enquiry, whether the goods specified in the certificate of registration of the purchaser can be used by him for any of the purposes mentioned by him in Form C, or that the goods purchased have in fact not been used for the purpose declared in the certificate11. The authority issuing the certificate under R. 5 (1), as expressly stated in the rule, has, before issuing a registration certificate, to be satisfied after making such enquiry as it thinks necessary that the particulars contained in the application are correct and complete. The enquiry would obviously be made in the light of the nature of the business and goods which are likely to be needed either for resale, or for use in the manufacture of goods for sale, or for use in the execution of contracts. Satisfaction which is contemplated by R. 5 is objective, and may be arrived at upon a quasi judicial enquiry. This Court has in several cases had occasion to consider the legality of orders of the notified authority refusing to grant certificates of registration in Form Bin respect of certain classes of goods which it was claimed by the taxpayer were necessary for the purpose of his business and were, therefore, requested to be specified in the certificate of registration: e.g., Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar,6 STC 259: (AIR 1965 SC 891 ), and J. K. Cotton Spinning and Weaving Co. Ltd. v. Sales Tax Officer, Kanpur, 196516 STC 563 : (AIR 1965 SC 1310 ). On the plain words used in S. 7 and the Rules, It is contemplated that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of the business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form B that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceeding for assessment of tax. If therefore goods are specified in the certificate of registration in Form B, it is not open, when a claim is made in respect of the purchase of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his business. It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration, but if the class of goods is included in the certificate of registration in Form B he cannot say that the class of goods should not have been specified12. The Act seeks to impose tax on transactions, amongst others, of sale and purchase ine trade and commerce. Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on to the consumers of goods because it enters into the price paid by them. Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has provided in respect of sales of declared goods which have special importance ine trade or commerce, and other classes of goods which are purchased at an intermediate stage in the stream of trade or commerce prescribed low rates of taxation, when transactions take place in the course ofe trade or commerce. Indisputably the seller can have in these transactions no control over the purchaser. He has to rely upon the representations made to him. He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificate but his duty extends no further. If he is satisfied on these two matters, on a representation made to him in the manner prescribed by the Rules and the representation is recorded in the certificate in Form C the selling dealer is under no further obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used. If the purchasing dealer misapplies the goods he incurs a penalty under S. 10. That penalty is incurred by the purchasing dealer and cannot be visited upon the selling dealer. The selling clearer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form C He cannot hold an enquiry whether the notified authority who issued the certificate of registration acted properly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the goods for a purpose other than the purpose mentioned in the certificate in Form C. There is nothing in the Act or the Rules that for infraction of the law committed by the purchasing dealer by misapplication of the good after he purchased them, or for any fraudulent misrepresentation by him penalty may be visited upon the selling dealer. | 0 | 4,960 | 1,789 | ### Instruction:
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is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form B that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceeding for assessment of tax. If therefore goods are specified in the certificate of registration in Form B, it is not open, when a claim is made in respect of the purchase of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his business. It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration, but if the class of goods is included in the certificate of registration in Form B he cannot say that the class of goods should not have been specified. 12. The Act seeks to impose tax on transactions, amongst others, of sale and purchase in inter-State trade and commerce. Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on to the consumers of goods because it enters into the price paid by them. Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has provided in respect of sales of declared goods which have special importance in inter-State trade or commerce, and other classes of goods which are purchased at an intermediate stage in the stream of trade or commerce prescribed low rates of taxation, when transactions take place in the course of inter-State trade or commerce. Indisputably the seller can have in these transactions no control over the purchaser. He has to rely upon the representations made to him. He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificate but his duty extends no further. If he is satisfied on these two matters, on a representation made to him in the manner prescribed by the Rules and the representation is recorded in the certificate in Form C the selling dealer is under no further obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used. If the purchasing dealer misapplies the goods he incurs a penalty under S. 10. That penalty is incurred by the purchasing dealer and cannot be visited upon the selling dealer. The selling clearer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form C He cannot hold an enquiry whether the notified authority who issued the certificate of registration acted properly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the goods for a purpose other than the purpose mentioned in the certificate in Form C. There is nothing in the Act or the Rules that for infraction of the law committed by the purchasing dealer by misapplication of the good after he purchased them, or for any fraudulent misrepresentation by him penalty may be visited upon the selling dealer. 13. Counsel for the appellant contended that the view expressed by the High Court in the judgments under appeal was any case erroneous, because they held that a C Form certificate produced by the selling dealer is conclusive of the right to the concessional rate of tax, and that no enquiry whatever may be made by the assessing authority. He invited our attention to the following passage from the judgment which is under appeal in Civil Appeal No. 335 of 1165 :"We are of the opinion that whether or not the goods were in feet used for the stated purposes or even usable for such a purpose, so long as the purchasing dealer has furnished the required declaration to the selling dealer, the selling dealer becomes under law entitled to the benefit of Section 8 (1) of the Act. It is no function of the selling dealer to enter into a judicial examination of whether the goods are in fact used or usable for the manufacture or processing of goods for sale by the purchasing dealer. The purchasing dealer declares that they are required for such a purpose and are further so specified in his form of registration granted by the sales tax authorities. It is not the function of the selling dealer to enquire whether the requirement of the purchasing dealer is bona fide or even is or is not within the certificate of registration of that dealer." It is implicit in the context in which these observations occur that if the purchasing dealer holds a valid certificate specifying the goods which are to be purchased, and furnishes the required declaration to the selling dealer, the selling dealer becomes on production of the certificate entitled to the benefit of S. 8 (1). It is of course open to the sales tax authority to satisfy himself that the goods which are purchased by the purchasing dealer under certificate in Form C are specified in the purchasing dealers certificate in Form B. Observation of the High Court that the selling dealer may not enquire whether the requirement is not within the certificate of registration of the purchasing dealer is not accurate. But whether the goods specified in the registration certificate in Form B can be used for the purpose is not for the selling dealer to determine. That is a matter which has already been determined by the notified authority issuing the certificate of registration.
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0
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intended to be used for all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules. The Sales Tax authority is, of course, competent to scrutinise the certificate to find out whether the certificate is genuine. He may also, in appropriate cases, when he has reasonable grounds to believe that the goods purchased are not covered by the registration certificate of the purchasing dealer, make an enquiry about the contents of the certificate of registration of the purchasing dealer. But it is not for the Tax Officer to hold an enquiry, whether the goods specified in the certificate of registration of the purchaser can be used by him for any of the purposes mentioned by him in Form C, or that the goods purchased have in fact not been used for the purpose declared in the certificate11. The authority issuing the certificate under R. 5 (1), as expressly stated in the rule, has, before issuing a registration certificate, to be satisfied after making such enquiry as it thinks necessary that the particulars contained in the application are correct and complete. The enquiry would obviously be made in the light of the nature of the business and goods which are likely to be needed either for resale, or for use in the manufacture of goods for sale, or for use in the execution of contracts. Satisfaction which is contemplated by R. 5 is objective, and may be arrived at upon a quasi judicial enquiry. This Court has in several cases had occasion to consider the legality of orders of the notified authority refusing to grant certificates of registration in Form Bin respect of certain classes of goods which it was claimed by the taxpayer were necessary for the purpose of his business and were, therefore, requested to be specified in the certificate of registration: e.g., Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar,6 STC 259: (AIR 1965 SC 891 ), and J. K. Cotton Spinning and Weaving Co. Ltd. v. Sales Tax Officer, Kanpur, 196516 STC 563 : (AIR 1965 SC 1310 ). On the plain words used in S. 7 and the Rules, It is contemplated that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of the business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form B that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceeding for assessment of tax. If therefore goods are specified in the certificate of registration in Form B, it is not open, when a claim is made in respect of the purchase of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his business. It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration, but if the class of goods is included in the certificate of registration in Form B he cannot say that the class of goods should not have been specified12. The Act seeks to impose tax on transactions, amongst others, of sale and purchase ine trade and commerce. Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on to the consumers of goods because it enters into the price paid by them. Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has provided in respect of sales of declared goods which have special importance ine trade or commerce, and other classes of goods which are purchased at an intermediate stage in the stream of trade or commerce prescribed low rates of taxation, when transactions take place in the course ofe trade or commerce. Indisputably the seller can have in these transactions no control over the purchaser. He has to rely upon the representations made to him. He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificate but his duty extends no further. If he is satisfied on these two matters, on a representation made to him in the manner prescribed by the Rules and the representation is recorded in the certificate in Form C the selling dealer is under no further obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used. If the purchasing dealer misapplies the goods he incurs a penalty under S. 10. That penalty is incurred by the purchasing dealer and cannot be visited upon the selling dealer. The selling clearer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form C He cannot hold an enquiry whether the notified authority who issued the certificate of registration acted properly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the goods for a purpose other than the purpose mentioned in the certificate in Form C. There is nothing in the Act or the Rules that for infraction of the law committed by the purchasing dealer by misapplication of the good after he purchased them, or for any fraudulent misrepresentation by him penalty may be visited upon the selling dealer.
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The State Of Tamil Nadu Vs. Sri Srinivasa Sales Circulation Etc | be a sale at all. Consequently, the High Court held that since the transactions involved in the scheme of the assessee are not sale, the assessee are not liable to be taxed as sales under Section 3(1) of the Act and, therefore, allowed the revision, set aside the order of the Assessing Officer, Appellate Assistant Commissioner and the Tribunal against which these appeals and special leave petitions have been directed as the orders in the connected appeals and the special leave petitions are based on the orders and findings recorded by the High Court in Sri Srinivasa Sales Circulation v. State of T.N. 13. The learned counsel appearing for the appellant State, vehemently urged that in the light of the facts found on record the disputed transaction were sales as defined under Section 4 of the Sale of Goods Act and, therefore, the Assessing Officer had rightly brought the same under the net of taxation under the provisions of the Act. It was submitted that the High Court was not right in holding that the title in the goods that passed to the customers was not under any contract of sale between the respondent and their customers and strenuously urged that the tenor of the scheme clearly indicated that the title in the goods passed to the customers pursuant to a contract of sale between the respondent and their customers and the transaction was squarely covered by Section 4 of the Sale of Goods Act. Contrary to this, the learned counsel appearing for the respondent sought to support the impugned order for the reasons assigned by the High Court has submitted that the transactions involved in the scheme of the assessee are not liable to tax as sales tax under Section 3(1) of the Act. 14. It may be stated that in order to constitute a sale under the Sale of Goods Act, it is essential to establish that there is an agreement between the parties for transfer of title to the goods and that such agreement should be supported by money consideration and as a result of the transaction the goods, article or the property must actually pass to the purchaser. It is settled law that the expression sale under the Sales Tax Act has to be understood with reference to the definition of "sale of goods" under the Sale of Goods Act. But if the title of the goods passes without any contract between the parties, express or implied, there is no sale. Similarly, if the consideration of the transfer is not money, but some other valuable consideration, it may amount to exchange or barter but not a sale in the strict sense of the law for the purposes of taxation. We shall, therefore, examine whether under the facts and circumstances of the present case, the transfer of article by the respondent-assessee to its customers under the scheme floated by it constitutes a sale against payment of price of that article. 15. As stated earlier, in the foregoing paras of this judgment, the coupon of the company is sold to the customer A on payment of Rs 5. Whereafter, the customer A receives three coupons for Rs 16 which he sells to three persons for Rs 5 each and appropriates the amount so received by himself. When each of the three parties to whom the coupons are sold by A, further sell their coupons to other namely B, C and D, one cycle is completed and the customer A in turn receives the article of his choice as mentioned by him in the coupon from the company. In this process, as stated earlier, the company dispatches a letter to its customer A advising him to sell the three order forms to three members and take that money himself. Not only this, the assessee company further addresses a letter to the customer A in the printed form conveying their thanks to him and that they have received three original order forms and the letter, stating further that as soon as the V.P.Ls. are cleared by paying Rs 16 each, they will send him the required article by registered parcel. Thereafter, the company ultimately dispatches the article of his choice to the customer A with a covering letter advising him to receive the article by paying the stated amount. From these facts, it is clear that there may not be a formal contract for sale and purchase of the article in any specific form, but such a contract may be spelt out from the correspondence and interaction between the parties. In the present case an implied contract between the parties is spelt out when the company offers the coupon(s) against payment and the article of the choice is ultimately sent to the customer for payment of price which is accepted by the customer. There is thus offer and acceptance. If the contents of the entire scheme, as reproduced above, are minutely looked into, it substantially amounts to sale. We find that all the attributes, characteristics and requirements of a sale are present in the transaction. In fact the transaction is so designed and framed by the company by adopting a circuitous method for sale of their goods which amounts to nothing but a sale, and the same is liable to assessment under the Act. This view is further strengthened from the fact that during the relevant assessment year the respondent-company sent articles to its various customers under the scheme of the value of Rs 1, 36, 665.00, which were purchased by the respondent-company for a sum of Rs 1, 03, 709.25 and, thus, earned a profit to the tune of Rs 32, 955.75. The business so run by the respondent is with a view to earn profit out of the sale by adopting a circuitous device with a view to evade the payment of tax. In our considered opinion, the High Court, therefore, was not justified in taking the view that it was not a sale transaction assessable to tax. | 1[ds]14. It may be stated that in order to constitute a sale under the Sale of Goods Act, it is essential to establish that there is an agreement between the parties for transfer of title to the goods and that such agreement should be supported by money consideration and as a result of the transaction the goods, article or the property must actually pass to the purchaser. It is settled law that the expression sale under the Sales Tax Act has to be understood with reference to the definition of "sale of goods" under the Sale of Goods Act. But if the title of the goods passes without any contract between the parties, express or implied, there is no sale. Similarly, if the consideration of the transfer is not money, but some other valuable consideration, it may amount to exchange or barter but not a sale in the strict sense of the law for the purposes of taxation15. As stated earlier, in the foregoing paras of this judgment, the coupon of the company is sold to the customer A on payment of Rs 5. Whereafter, the customer A receives three coupons for Rs 16 which he sells to three persons for Rs 5 each and appropriates the amount so received by himself. When each of the three parties to whom the coupons are sold by A, further sell their coupons to other namely B, C and D, one cycle is completed and the customer A in turn receives the article of his choice as mentioned by him in the coupon from the company. In this process, as stated earlier, the company dispatches a letter to its customer A advising him to sell the three order forms to three members and take that money himself. Not only this, the assessee company further addresses a letter to the customer A in the printed form conveying their thanks to him and that they have received three original order forms and the letter, stating further that as soon as the V.P.Ls. are cleared by paying Rs 16 each, they will send him the required article by registered parcel. Thereafter, the company ultimately dispatches the article of his choice to the customer A with a covering letter advising him to receive the article by paying the stated amount. From these facts, it is clear that there may not be a formal contract for sale and purchase of the article in any specific form, but such a contract may be spelt out from the correspondence and interaction between the parties. In the present case an implied contract between the parties is spelt out when the company offers the coupon(s) against payment and the article of the choice is ultimately sent to the customer for payment of price which is accepted by the customer. There is thus offer and acceptance. If the contents of the entire scheme, as reproduced above, are minutely looked into, it substantially amounts to sale. We find that all the attributes, characteristics and requirements of a sale are present in the transaction. In fact the transaction is so designed and framed by the company by adopting a circuitous method for sale of their goods which amounts to nothing but a sale, and the same is liable to assessment under the Act. This view is further strengthened from the fact that during the relevant assessment year the respondent-company sent articles to its various customers under the scheme of the value of Rs 1, 36, 665.00, which were purchased by the respondent-company for a sum of Rs 1, 03, 709.25 and, thus, earned a profit to the tune of Rs 32, 955.75. The business so run by the respondent is with a view to earn profit out of the sale by adopting a circuitous device with a view to evade the payment of tax. In our considered opinion, the High Court, therefore, was not justified in taking the view that it was not a sale transaction assessable to tax | 1 | 2,566 | 730 | ### Instruction:
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be a sale at all. Consequently, the High Court held that since the transactions involved in the scheme of the assessee are not sale, the assessee are not liable to be taxed as sales under Section 3(1) of the Act and, therefore, allowed the revision, set aside the order of the Assessing Officer, Appellate Assistant Commissioner and the Tribunal against which these appeals and special leave petitions have been directed as the orders in the connected appeals and the special leave petitions are based on the orders and findings recorded by the High Court in Sri Srinivasa Sales Circulation v. State of T.N. 13. The learned counsel appearing for the appellant State, vehemently urged that in the light of the facts found on record the disputed transaction were sales as defined under Section 4 of the Sale of Goods Act and, therefore, the Assessing Officer had rightly brought the same under the net of taxation under the provisions of the Act. It was submitted that the High Court was not right in holding that the title in the goods that passed to the customers was not under any contract of sale between the respondent and their customers and strenuously urged that the tenor of the scheme clearly indicated that the title in the goods passed to the customers pursuant to a contract of sale between the respondent and their customers and the transaction was squarely covered by Section 4 of the Sale of Goods Act. Contrary to this, the learned counsel appearing for the respondent sought to support the impugned order for the reasons assigned by the High Court has submitted that the transactions involved in the scheme of the assessee are not liable to tax as sales tax under Section 3(1) of the Act. 14. It may be stated that in order to constitute a sale under the Sale of Goods Act, it is essential to establish that there is an agreement between the parties for transfer of title to the goods and that such agreement should be supported by money consideration and as a result of the transaction the goods, article or the property must actually pass to the purchaser. It is settled law that the expression sale under the Sales Tax Act has to be understood with reference to the definition of "sale of goods" under the Sale of Goods Act. But if the title of the goods passes without any contract between the parties, express or implied, there is no sale. Similarly, if the consideration of the transfer is not money, but some other valuable consideration, it may amount to exchange or barter but not a sale in the strict sense of the law for the purposes of taxation. We shall, therefore, examine whether under the facts and circumstances of the present case, the transfer of article by the respondent-assessee to its customers under the scheme floated by it constitutes a sale against payment of price of that article. 15. As stated earlier, in the foregoing paras of this judgment, the coupon of the company is sold to the customer A on payment of Rs 5. Whereafter, the customer A receives three coupons for Rs 16 which he sells to three persons for Rs 5 each and appropriates the amount so received by himself. When each of the three parties to whom the coupons are sold by A, further sell their coupons to other namely B, C and D, one cycle is completed and the customer A in turn receives the article of his choice as mentioned by him in the coupon from the company. In this process, as stated earlier, the company dispatches a letter to its customer A advising him to sell the three order forms to three members and take that money himself. Not only this, the assessee company further addresses a letter to the customer A in the printed form conveying their thanks to him and that they have received three original order forms and the letter, stating further that as soon as the V.P.Ls. are cleared by paying Rs 16 each, they will send him the required article by registered parcel. Thereafter, the company ultimately dispatches the article of his choice to the customer A with a covering letter advising him to receive the article by paying the stated amount. From these facts, it is clear that there may not be a formal contract for sale and purchase of the article in any specific form, but such a contract may be spelt out from the correspondence and interaction between the parties. In the present case an implied contract between the parties is spelt out when the company offers the coupon(s) against payment and the article of the choice is ultimately sent to the customer for payment of price which is accepted by the customer. There is thus offer and acceptance. If the contents of the entire scheme, as reproduced above, are minutely looked into, it substantially amounts to sale. We find that all the attributes, characteristics and requirements of a sale are present in the transaction. In fact the transaction is so designed and framed by the company by adopting a circuitous method for sale of their goods which amounts to nothing but a sale, and the same is liable to assessment under the Act. This view is further strengthened from the fact that during the relevant assessment year the respondent-company sent articles to its various customers under the scheme of the value of Rs 1, 36, 665.00, which were purchased by the respondent-company for a sum of Rs 1, 03, 709.25 and, thus, earned a profit to the tune of Rs 32, 955.75. The business so run by the respondent is with a view to earn profit out of the sale by adopting a circuitous device with a view to evade the payment of tax. In our considered opinion, the High Court, therefore, was not justified in taking the view that it was not a sale transaction assessable to tax.
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1
### Explanation:
14. It may be stated that in order to constitute a sale under the Sale of Goods Act, it is essential to establish that there is an agreement between the parties for transfer of title to the goods and that such agreement should be supported by money consideration and as a result of the transaction the goods, article or the property must actually pass to the purchaser. It is settled law that the expression sale under the Sales Tax Act has to be understood with reference to the definition of "sale of goods" under the Sale of Goods Act. But if the title of the goods passes without any contract between the parties, express or implied, there is no sale. Similarly, if the consideration of the transfer is not money, but some other valuable consideration, it may amount to exchange or barter but not a sale in the strict sense of the law for the purposes of taxation15. As stated earlier, in the foregoing paras of this judgment, the coupon of the company is sold to the customer A on payment of Rs 5. Whereafter, the customer A receives three coupons for Rs 16 which he sells to three persons for Rs 5 each and appropriates the amount so received by himself. When each of the three parties to whom the coupons are sold by A, further sell their coupons to other namely B, C and D, one cycle is completed and the customer A in turn receives the article of his choice as mentioned by him in the coupon from the company. In this process, as stated earlier, the company dispatches a letter to its customer A advising him to sell the three order forms to three members and take that money himself. Not only this, the assessee company further addresses a letter to the customer A in the printed form conveying their thanks to him and that they have received three original order forms and the letter, stating further that as soon as the V.P.Ls. are cleared by paying Rs 16 each, they will send him the required article by registered parcel. Thereafter, the company ultimately dispatches the article of his choice to the customer A with a covering letter advising him to receive the article by paying the stated amount. From these facts, it is clear that there may not be a formal contract for sale and purchase of the article in any specific form, but such a contract may be spelt out from the correspondence and interaction between the parties. In the present case an implied contract between the parties is spelt out when the company offers the coupon(s) against payment and the article of the choice is ultimately sent to the customer for payment of price which is accepted by the customer. There is thus offer and acceptance. If the contents of the entire scheme, as reproduced above, are minutely looked into, it substantially amounts to sale. We find that all the attributes, characteristics and requirements of a sale are present in the transaction. In fact the transaction is so designed and framed by the company by adopting a circuitous method for sale of their goods which amounts to nothing but a sale, and the same is liable to assessment under the Act. This view is further strengthened from the fact that during the relevant assessment year the respondent-company sent articles to its various customers under the scheme of the value of Rs 1, 36, 665.00, which were purchased by the respondent-company for a sum of Rs 1, 03, 709.25 and, thus, earned a profit to the tune of Rs 32, 955.75. The business so run by the respondent is with a view to earn profit out of the sale by adopting a circuitous device with a view to evade the payment of tax. In our considered opinion, the High Court, therefore, was not justified in taking the view that it was not a sale transaction assessable to tax
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SAI WARDHA POWER GENERATION LIMITED Vs. THE TATA POWER COMPANY LIMITED DISTRIBUTION & ORS | The basis for the order of the Commission dated 12.03.2018, allowing the petition filed by the HPCL is two- fold. Firstly, the Commission held that transmission licence was granted to TPC-T on 14.08.2014, in which the two110 kV Trombay - HPCL lines were shown as a part of TPC-T. The Commission observed that as long as the lines remained part of the transmission licence, TPC-D cannot claim wheeling charges. The Commission further observed that HPCL is directly connected to 110 kV transmission system in terms of TPC-Ts transmission licence and not to the distribution network of TPC-D. The Commission remarked that mere filing of a petition by TPC-T for amendment of its transmission licence does not entitle TPC-D to levy wheeling charges. The Commission further referred to the submission of TPC-D in case No.47 of 2016 that the assets of TPC-D do not include any part of TPCs transmission network. The submission of TPC-D relating to the inadvertent error in showing 2x110 kV lines in the transmission network was rejected. 15. Secondly, the Commission relied upon an E-mail of the Maharashtra State Load Despatch Centre (MSLDC) dated 11.12.2015 addressed to SWPGL in which it was stated that no wheeling charges can be levied on HPCL as it was connected at 110 kV level. The Commission referred to the CEA Regulations, 2010 and Central Electricity Authoritys Manual on Transmission Planning Criteria) 2013 and Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 to hold that all lines up to 33 kV shall be part of the distribution system and those above 33 kV form part of transmission lines. 16. The order of the Commission was set aside by the Tribunal. The Tribunal observed that 2x110 kV HPCL feeder was being used for supplying electricity since inception and hence it is an integral part of TPC-D system. By placing reliance on a judgment in OPTCL, the Tribunal held that HPCL cannot receive power supply directly from TPC-T. The Tribunal further held that there is no embargo on the inclusion of the 2x110 kV lines in the distribution network and distribution can be undertaken at high voltage levels forming high voltage distribution system. While answering the second point, the Tribunal held that a consumer can directly be connected to the works of a transmission licensee. However, in the instant case, HPCL was paying wheeling charges from a long time to TPC-D. Hence, the 2x110 kV lines are part of the distribution system of TPC-D. Further, the T echnical Regulations framed by the CEA defining level of voltage for distribution and transmission heads were held to be generic in nature by the Tribunal. 17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D. 18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system. 19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL. | 1[ds]17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL. | 1 | 3,170 | 608 | ### 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:
The basis for the order of the Commission dated 12.03.2018, allowing the petition filed by the HPCL is two- fold. Firstly, the Commission held that transmission licence was granted to TPC-T on 14.08.2014, in which the two110 kV Trombay - HPCL lines were shown as a part of TPC-T. The Commission observed that as long as the lines remained part of the transmission licence, TPC-D cannot claim wheeling charges. The Commission further observed that HPCL is directly connected to 110 kV transmission system in terms of TPC-Ts transmission licence and not to the distribution network of TPC-D. The Commission remarked that mere filing of a petition by TPC-T for amendment of its transmission licence does not entitle TPC-D to levy wheeling charges. The Commission further referred to the submission of TPC-D in case No.47 of 2016 that the assets of TPC-D do not include any part of TPCs transmission network. The submission of TPC-D relating to the inadvertent error in showing 2x110 kV lines in the transmission network was rejected. 15. Secondly, the Commission relied upon an E-mail of the Maharashtra State Load Despatch Centre (MSLDC) dated 11.12.2015 addressed to SWPGL in which it was stated that no wheeling charges can be levied on HPCL as it was connected at 110 kV level. The Commission referred to the CEA Regulations, 2010 and Central Electricity Authoritys Manual on Transmission Planning Criteria) 2013 and Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 to hold that all lines up to 33 kV shall be part of the distribution system and those above 33 kV form part of transmission lines. 16. The order of the Commission was set aside by the Tribunal. The Tribunal observed that 2x110 kV HPCL feeder was being used for supplying electricity since inception and hence it is an integral part of TPC-D system. By placing reliance on a judgment in OPTCL, the Tribunal held that HPCL cannot receive power supply directly from TPC-T. The Tribunal further held that there is no embargo on the inclusion of the 2x110 kV lines in the distribution network and distribution can be undertaken at high voltage levels forming high voltage distribution system. While answering the second point, the Tribunal held that a consumer can directly be connected to the works of a transmission licensee. However, in the instant case, HPCL was paying wheeling charges from a long time to TPC-D. Hence, the 2x110 kV lines are part of the distribution system of TPC-D. Further, the T echnical Regulations framed by the CEA defining level of voltage for distribution and transmission heads were held to be generic in nature by the Tribunal. 17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D. 18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system. 19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL.
### Response:
1
### Explanation:
17. Admittedly, separate licenses for transmission and distribution to TPC-T and TPC-D respectively were granted in 2014. There is no dispute that TPC-T included the 2x110 kV lines in its transmission assets. The network roll out plan submitted by TPC-D included lines upto 33 kV in its distribution network. An application was filed by TPC-T for amendment of the licence which is pending before the Commission, following the remand by the Tribunal. The Tribunal did not advert to the application filed by TPC-T for amendment of the transmission licence. The Tribunal also did not refer to its order by which it set aside the order of the Commission disallowing the application for amendment of the transmission license and remanded the matter back to the Commission. The Tribunal committed an error in ignoring the existing transmission licence of TPC-T before coming to a conclusion that 2x110 kV lines are part of the distribution network. The Tribunal ought to have directed the Commission to adjudicate the application filed by TPC-T for amendment of the transmission licence. Thereafter, the Tribunal should have decided an appeal, if any, filed against the decision of the Commission on the application for amendment before taking up the appeal filed by TPC-T against the order of Commission dated 12.03.2018. The Tribunal stressed on the fact that HPCL was receiving power from TPC-D from a very long time for which reason, the 2x110 kV lines should form part of the distribution system of the TPC-D. The Tribunal was wrong in not taking note of the application filed by TPC-T for amendment of its transmission licence in which the 2x110 kV lines were included in the transmission network. Till the transmission licence of TPC-T is not modified, the 2x110 kV lines form part of the transmission network of TPC-T. The Tribunal could not have held that 2x110 kV lines should be included in the distribution system of TPC-D18. The CEA Regulations 2010, the Maharashtra Electricity Regulatory Commission (Transmission Open Access) Regulations, 2016 and the Maharashtra Electricity Regulatory Commission (Distribution Open Access) Regulations, 2016 provide for demarcation between the transmission and distribution boundaries on the basis of voltage. The Tribunal erred in ignoring the said Regulations while holding that 2x110 kV lines are part of the distribution system19. We are of the opinion that the judgment of the Tribunal is required to be set aside and that the matter should be remanded back for fresh consideration. Therefore, we are not expressing any opinion on the findings recorded by the Tribunal on interpretation of the provisions of the Electricity Act, 2003. As a matter of fact, the transmission licence issued to TPC-T includes 2x110 kV lines as part of the transmission system. Therefore, it is not open to TPC-T to contend that 2x110 kV line is a part of the distribution system of TPC-D till the transmission licence is modified. It is essential that the application filed by TPC-T for amendment of its transmission licence is decided first. If the application filed for amendment by TPC-T is allowed and reaches finality, the 2x110 kV lines will not form part of the transmission network. On the other hand, if the application of TPC-T for amendment of its licence is rejected, TPC-D cannot have a case for seeking inclusion of 2x110 kV lines in its distribution system for imposing wheeling charges on HPCL.
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Management Of Vishnu Sugar Mills Limited,Harkhua, District Vs. Their Workmen Represented By Chini Mill Mazdoor Union,Hark | Central Government. Reliance is placed on the words "concerning any such controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951 but that in our opinion does not conclude the matter. In order that the appropriate government under S. 2 (a) (i) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of S. 2 (a) (i). This in our opinion is obvious from the words "controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is not enough that an industry should be a controlled industry to attract this provision of S. 2 (a) (i); it is further necessary that it should be specified in this behalf, namely for the purposes of S. 2 (a) (i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of S. 2 (a) (i). We may in this connection refer to Firebricks and Potteries Ltd. v. Firebricks and Potteries Ltd. Workers Union Ltd., ILR (1955) Mys 546: ( (S) AIR 1956 Mys 7), where the same view had been taken. We are of opinion that that is the correct meaning of these words appearing in S. 2 (a) (i), as already held in Bijoy Cotton Mills Ltd., (AIR 1960 SC 692 ). The objection that the reference was not competent therefore fails. 6. We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem to Ramkrishna Prasad. The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him. This view of the tribunal in our opinion is patently erroneous. The appointment order dated October 4, 1952, clearly shows that Babulal Parekh was appointed as store in-charge from the very beginning at Rs. 180 per month. The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with . It appears from the attendance register for the months of October, November and December that Babulal Parekh was marked present from October 7 to November 9. Thereafter from November 11 to the end of December he signed the attendance register. The statement of Chaudhari, Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves. The tribunal has concluded from the fact that Babulal Parekh signed the register in November that he must have been a clerk to begin with. The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk. The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in-charge he still signed the register, though he should have been marked present. Chaudhari was unable to explain how this happened, but he was hardly the person to explain this. It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it. The real thing which determined the status of Babulal Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct. A question was certainly put to Chaudhari at the end of his cross-examination that he had manufactured the statements put in by him only the night before but he denied it. We cannot accept the suggestion on behalf of the respondents that the appointment order was ante-dated, for no such suggestion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in-charge. Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh. If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store-keeper before. There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning.As the learned tribunal itself points out, "promotion to higher post was the exclusive function of the management" and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasads status was in any way prejudicially affected.It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh. The order of the tribunal therefore is patently unsupportable and must be set aside. | 1[ds]It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951 but that in our opinion does not conclude the matter. In order that the appropriate government under S. 2 (a) (i) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of S. 2 (a) (i). This in our opinion is obvious from the words "controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is not enough that an industry should be a controlled industry to attract this provision of S. 2 (a) (i); it is further necessary that it should be specified in this behalf, namely for the purposes of S. 2 (a) (i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of S. 2 (a) (i)6. We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem to Ramkrishna Prasad. The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him. This view of the tribunal in our opinion is patently erroneous. The appointment order dated October 4, 1952, clearly shows that Babulal Parekh was appointed as store in-charge from the very beginning at Rs. 180 per month. The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with . It appears from the attendance register for the months of October, November and December that Babulal Parekh was marked present from October 7 to November9. Thereafter from November 11 to the end of December he signed the attendance register. The statement of Chaudhari, Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves. The tribunal has concluded from the fact that Babulal Parekh signed the register in November that he must have been a clerk to begin with. The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk. The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in-charge he still signed the register, though he should have been marked present. Chaudhari was unable to explain how this happened, but he was hardly the person to explain this. It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it. The real thing which determined the status of Babulal Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct. A question was certainly put to Chaudhari at the end of his cross-examination that he had manufactured the statements put in by him only the night before but he denied it. We cannot accept the suggestion on behalf of the respondents that the appointment order was ante-dated, for no such suggestion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in-charge. Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh. If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store-keeper before. There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning.As the learned tribunal itself points out, "promotion to higher post was the exclusive function of the management" and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasads status was in any way prejudicially affected.It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh. The order of the tribunal therefore is patently unsupportable and must be set aside. | 1 | 2,219 | 980 | ### 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:
Central Government. Reliance is placed on the words "concerning any such controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951 but that in our opinion does not conclude the matter. In order that the appropriate government under S. 2 (a) (i) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of S. 2 (a) (i). This in our opinion is obvious from the words "controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is not enough that an industry should be a controlled industry to attract this provision of S. 2 (a) (i); it is further necessary that it should be specified in this behalf, namely for the purposes of S. 2 (a) (i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of S. 2 (a) (i). We may in this connection refer to Firebricks and Potteries Ltd. v. Firebricks and Potteries Ltd. Workers Union Ltd., ILR (1955) Mys 546: ( (S) AIR 1956 Mys 7), where the same view had been taken. We are of opinion that that is the correct meaning of these words appearing in S. 2 (a) (i), as already held in Bijoy Cotton Mills Ltd., (AIR 1960 SC 692 ). The objection that the reference was not competent therefore fails. 6. We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem to Ramkrishna Prasad. The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him. This view of the tribunal in our opinion is patently erroneous. The appointment order dated October 4, 1952, clearly shows that Babulal Parekh was appointed as store in-charge from the very beginning at Rs. 180 per month. The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with . It appears from the attendance register for the months of October, November and December that Babulal Parekh was marked present from October 7 to November 9. Thereafter from November 11 to the end of December he signed the attendance register. The statement of Chaudhari, Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves. The tribunal has concluded from the fact that Babulal Parekh signed the register in November that he must have been a clerk to begin with. The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk. The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in-charge he still signed the register, though he should have been marked present. Chaudhari was unable to explain how this happened, but he was hardly the person to explain this. It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it. The real thing which determined the status of Babulal Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct. A question was certainly put to Chaudhari at the end of his cross-examination that he had manufactured the statements put in by him only the night before but he denied it. We cannot accept the suggestion on behalf of the respondents that the appointment order was ante-dated, for no such suggestion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in-charge. Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh. If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store-keeper before. There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning.As the learned tribunal itself points out, "promotion to higher post was the exclusive function of the management" and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasads status was in any way prejudicially affected.It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh. The order of the tribunal therefore is patently unsupportable and must be set aside.
### Response:
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### Explanation:
It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951 but that in our opinion does not conclude the matter. In order that the appropriate government under S. 2 (a) (i) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of S. 2 (a) (i). This in our opinion is obvious from the words "controlled industry as may be specified in this behalf by the Central Government" appearing in S. 2 (a) (i). It is not enough that an industry should be a controlled industry to attract this provision of S. 2 (a) (i); it is further necessary that it should be specified in this behalf, namely for the purposes of S. 2 (a) (i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of S. 2 (a) (i)6. We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem to Ramkrishna Prasad. The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him. This view of the tribunal in our opinion is patently erroneous. The appointment order dated October 4, 1952, clearly shows that Babulal Parekh was appointed as store in-charge from the very beginning at Rs. 180 per month. The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with . It appears from the attendance register for the months of October, November and December that Babulal Parekh was marked present from October 7 to November9. Thereafter from November 11 to the end of December he signed the attendance register. The statement of Chaudhari, Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves. The tribunal has concluded from the fact that Babulal Parekh signed the register in November that he must have been a clerk to begin with. The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk. The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in-charge he still signed the register, though he should have been marked present. Chaudhari was unable to explain how this happened, but he was hardly the person to explain this. It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it. The real thing which determined the status of Babulal Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct. A question was certainly put to Chaudhari at the end of his cross-examination that he had manufactured the statements put in by him only the night before but he denied it. We cannot accept the suggestion on behalf of the respondents that the appointment order was ante-dated, for no such suggestion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in-charge. Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh. If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store-keeper before. There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning.As the learned tribunal itself points out, "promotion to higher post was the exclusive function of the management" and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasads status was in any way prejudicially affected.It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh. The order of the tribunal therefore is patently unsupportable and must be set aside.
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High Court Of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat | of nomination as provided under the Rules, was arrived at, after considering all aspects, not only that the process of selecting the person to be recommended to the Government was also undertaken transparently and before taking the decision, the matter was considered from time and again by the Standing Committee of the High Court of Gujarat and after due consideration and deliberations, the decision was taken to recommend the name of Shri N.A. Acharya. Considering the totality of the facts, it is clear to us that there is neither illegality nor arbitrariness in taking the decision of recommending the name of Shri N.A. Acharya for appointment on the post of President, Industrial Court, Ahmedabad. 15. It is seen from the records that at the request of the Government, the eligibility criteria for appointment on the post of President, Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules. We have already extracted Rules 2 & 3 of the Draft Recruitment Rules. Shri N.A. Acharya is eligible for the post of the President, Industrial Court, Ahmedabad as he has completed ten years service in judiciary including the period of practice at the Bar. The period of practice/service of Shri N.A. Acharya is given below:- 16. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of Industrial Court, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of the Industrial Court. In our view, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by the High Court at the request of the Government and pending approval of the Government. We are, therefore, of the opinion that the appointment of Shri N.A. Acharya as President of the Industrial Court is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for High Court or have expert knowledge of Industrial matters. Based on the recommendation of the High Court, on its administrative side, the Government of Gujarat issued the Notification on 7.12.2000 whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court. Considering the totality of the facts, it is clear that by recommending the appointment in question, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.17. In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of the Industrial Court must be appointed from amongst the existing Members of the Industrial Court when the provision in fact is not in such terms. The High Court has confused the concept of the President of the Industrial Court being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court.18. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners Association & Ors., (1998) 2 SCC 688 , held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.19. For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of Shri N.A. Acharya as the President of the Industrial Court, for appointment by nomination. | 1[ds]16. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of Industrial Court, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of the Industrial Court. In our view, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by the High Court at the request of the Government and pending approval of the Government. We are, therefore, of the opinion that the appointment of Shri N.A. Acharya as President of the Industrial Court is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for High Court or have expert knowledge of Industrial matters. Based on the recommendation of the High Court, on its administrative side, the Government of Gujarat issued the Notification on 7.12.2000 whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court. Considering the totality of the facts, it is clear that by recommending the appointment in question, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.17. In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of the Industrial Court must be appointed from amongst the existing Members of the Industrial Court when the provision in fact is not in such terms. The High Court has confused the concept of the President of the Industrial Court being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court.18. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners Association & Ors., (1998) 2 SCC 688 , held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.19. For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of Shri N.A. Acharya as the President of the Industrial Court, for appointment by nomination. | 1 | 7,005 | 892 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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of nomination as provided under the Rules, was arrived at, after considering all aspects, not only that the process of selecting the person to be recommended to the Government was also undertaken transparently and before taking the decision, the matter was considered from time and again by the Standing Committee of the High Court of Gujarat and after due consideration and deliberations, the decision was taken to recommend the name of Shri N.A. Acharya. Considering the totality of the facts, it is clear to us that there is neither illegality nor arbitrariness in taking the decision of recommending the name of Shri N.A. Acharya for appointment on the post of President, Industrial Court, Ahmedabad. 15. It is seen from the records that at the request of the Government, the eligibility criteria for appointment on the post of President, Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules. We have already extracted Rules 2 & 3 of the Draft Recruitment Rules. Shri N.A. Acharya is eligible for the post of the President, Industrial Court, Ahmedabad as he has completed ten years service in judiciary including the period of practice at the Bar. The period of practice/service of Shri N.A. Acharya is given below:- 16. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of Industrial Court, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of the Industrial Court. In our view, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by the High Court at the request of the Government and pending approval of the Government. We are, therefore, of the opinion that the appointment of Shri N.A. Acharya as President of the Industrial Court is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for High Court or have expert knowledge of Industrial matters. Based on the recommendation of the High Court, on its administrative side, the Government of Gujarat issued the Notification on 7.12.2000 whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court. Considering the totality of the facts, it is clear that by recommending the appointment in question, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.17. In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of the Industrial Court must be appointed from amongst the existing Members of the Industrial Court when the provision in fact is not in such terms. The High Court has confused the concept of the President of the Industrial Court being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court.18. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners Association & Ors., (1998) 2 SCC 688 , held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.19. For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of Shri N.A. Acharya as the President of the Industrial Court, for appointment by nomination.
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### Explanation:
16. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of Industrial Court, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of the Industrial Court. In our view, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by the High Court at the request of the Government and pending approval of the Government. We are, therefore, of the opinion that the appointment of Shri N.A. Acharya as President of the Industrial Court is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for High Court or have expert knowledge of Industrial matters. Based on the recommendation of the High Court, on its administrative side, the Government of Gujarat issued the Notification on 7.12.2000 whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court. Considering the totality of the facts, it is clear that by recommending the appointment in question, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.17. In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of the Industrial Court must be appointed from amongst the existing Members of the Industrial Court when the provision in fact is not in such terms. The High Court has confused the concept of the President of the Industrial Court being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court.18. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners Association & Ors., (1998) 2 SCC 688 , held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.19. For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of Shri N.A. Acharya as the President of the Industrial Court, for appointment by nomination.
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N. Raghavendra Rao Vs. Deputy Commissioner, South Kanara,Mangalore | not be appropriate to provide for any protection in the matter of these conditions." Therefore, it is evident from this memorandum that the Central Government had told the State Government that they might, if they so desire, change service rules as indicated in the memorandum. But Mr. Garg argues that even so this does not amount to previous approval within S. 115 (7) of the States Reorganisation Act to the making of the Mysore General services (Revenue Subordinate Branch) Recruitment Rules, 1959. What then is the true meaning of the expression "previous approval" in the proviso to S. 115 (7) ? Sub-section (7) of S. 115 provides that ;"7. Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State ;Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-sec. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."The effect of this sub-section is, inter alia, to preserve the power of the State to make rules under Art. 309 of the Constitution, but the proviso imposes a limitation on the exercise of this power, and the limitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in subsecs. (1) and (2) of S. 115 It is not disputed that the petitioner is one of those persons.4. Mr. Garg has submitted that the very fact that the Mysore General Services (Revenue subordinate Branch) Recruitment Rules, 1959, as framed, were not sent to the Central Government for approval before being promulgated shows that previous approval has not been obtained. The memorandum, he says, is not approval but an abdication of the powers of the Central Government. In this connection he relies on the decision of the Court of Appeal in the case of In re Bosworth and Corporation of Gravesend, 1905-2 KB 426 but this decision has no bearing on the point under discussion. As Order in Council had been made under the provisions of the Burial Act, 1853, whereby it was ordered that no new burial ground shall be opened in (amongst other places) Gravesend, without the previous approval of one of Her Majestys Principal Secretaries of State. Permission was sought of the Secretary of State to add additional land to an existing cemetery. The Secretary of State replied that his sanction to the proposed addition was not required. It is this reply which was characterised by Collins, M.R., as renouncing of jurisdiction. We cannot appreciate how this assists us in interpreting the proviso to S. 115 (7). He further relied on the unreported judgment of the High Court of Mysore in C. K. Appanna v. State of Mysore, W.P. No. 88 of 1962 D/- 13-1-1964 : (AIR 1965 Mys 19) but this proceeds on a concession made by the Government Pleader and does not advance petitioners case. In our opinion, the setting in which the proviso to Section l15 (7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115 (7) limits that power, but trial limitation is removable by the Central Government by giving its previous approval. In this context, we think that could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government. Conditions vary from State to State and the details must be filled by each State according to its requirements. The broad purpose underlying the proviso to S. 115 (7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain, the concurrence of the Central Government. In the memorandum, mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to Section 115 (7). It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made.5. There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf. Firstly, the State of Madras has not been made a party to this petition. Secondly, he never raised these points while he was serving under the State of Madras. It is difficult at this Stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not parties to this petition. At any rate, the petitioner has not been able to show how Art. 16 was infringed before he was allotted to the new Mysore State. The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force in this contention and hold that no infringement of Art. 16 has been established. | 0[ds]In our opinion, the setting in which the proviso to Section l15 (7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115 (7) limits that power, but trial limitation is removable by the Central Government by giving its previous approval. In this context, we think that could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government. Conditions vary from State to State and the details must be filled by each State according to its requirements. The broad purpose underlying the proviso to S. 115 (7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain, the concurrence of the Central Government. In the memorandum, mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to Section 115 (7). It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made.There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf. Firstly, the State of Madras has not been made a party to this petition. Secondly, he never raised these points while he was serving under the State of Madras. It is difficult at this Stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not parties to this petition. At any rate, the petitioner has not been able to show how Art. 16 was infringed before he was allotted to the new Mysore State. The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force in this contention and hold that no infringement of Art. 16 has been established. | 0 | 1,764 | 530 | ### 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:
not be appropriate to provide for any protection in the matter of these conditions." Therefore, it is evident from this memorandum that the Central Government had told the State Government that they might, if they so desire, change service rules as indicated in the memorandum. But Mr. Garg argues that even so this does not amount to previous approval within S. 115 (7) of the States Reorganisation Act to the making of the Mysore General services (Revenue Subordinate Branch) Recruitment Rules, 1959. What then is the true meaning of the expression "previous approval" in the proviso to S. 115 (7) ? Sub-section (7) of S. 115 provides that ;"7. Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State ;Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-sec. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."The effect of this sub-section is, inter alia, to preserve the power of the State to make rules under Art. 309 of the Constitution, but the proviso imposes a limitation on the exercise of this power, and the limitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in subsecs. (1) and (2) of S. 115 It is not disputed that the petitioner is one of those persons.4. Mr. Garg has submitted that the very fact that the Mysore General Services (Revenue subordinate Branch) Recruitment Rules, 1959, as framed, were not sent to the Central Government for approval before being promulgated shows that previous approval has not been obtained. The memorandum, he says, is not approval but an abdication of the powers of the Central Government. In this connection he relies on the decision of the Court of Appeal in the case of In re Bosworth and Corporation of Gravesend, 1905-2 KB 426 but this decision has no bearing on the point under discussion. As Order in Council had been made under the provisions of the Burial Act, 1853, whereby it was ordered that no new burial ground shall be opened in (amongst other places) Gravesend, without the previous approval of one of Her Majestys Principal Secretaries of State. Permission was sought of the Secretary of State to add additional land to an existing cemetery. The Secretary of State replied that his sanction to the proposed addition was not required. It is this reply which was characterised by Collins, M.R., as renouncing of jurisdiction. We cannot appreciate how this assists us in interpreting the proviso to S. 115 (7). He further relied on the unreported judgment of the High Court of Mysore in C. K. Appanna v. State of Mysore, W.P. No. 88 of 1962 D/- 13-1-1964 : (AIR 1965 Mys 19) but this proceeds on a concession made by the Government Pleader and does not advance petitioners case. In our opinion, the setting in which the proviso to Section l15 (7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115 (7) limits that power, but trial limitation is removable by the Central Government by giving its previous approval. In this context, we think that could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government. Conditions vary from State to State and the details must be filled by each State according to its requirements. The broad purpose underlying the proviso to S. 115 (7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain, the concurrence of the Central Government. In the memorandum, mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to Section 115 (7). It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made.5. There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf. Firstly, the State of Madras has not been made a party to this petition. Secondly, he never raised these points while he was serving under the State of Madras. It is difficult at this Stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not parties to this petition. At any rate, the petitioner has not been able to show how Art. 16 was infringed before he was allotted to the new Mysore State. The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force in this contention and hold that no infringement of Art. 16 has been established.
### Response:
0
### Explanation:
In our opinion, the setting in which the proviso to Section l15 (7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to S. 115 (7) limits that power, but trial limitation is removable by the Central Government by giving its previous approval. In this context, we think that could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government. Conditions vary from State to State and the details must be filled by each State according to its requirements. The broad purpose underlying the proviso to S. 115 (7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain, the concurrence of the Central Government. In the memorandum, mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to Section 115 (7). It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made.There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf. Firstly, the State of Madras has not been made a party to this petition. Secondly, he never raised these points while he was serving under the State of Madras. It is difficult at this Stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not parties to this petition. At any rate, the petitioner has not been able to show how Art. 16 was infringed before he was allotted to the new Mysore State. The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion. It was for the competent authorities to judge the merits of the petitioner. We find no force in this contention and hold that no infringement of Art. 16 has been established.
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May and Baker (India) Limited Vs. J.S. Coutinho, National Union of Commercial Employees | M.L. PENDSE, J.( 1 ) THE short question which falls for determination in this petition filed under Articles 226 and 227 of the Constitution of India is whether for the purpose of calculating gratuity, a days wage is to be arrived at by dividing a months wages by 26 days or number of actual working days in a month. The question arises for consideration in the following circumstances:( 2 ) THE petitioner is a Public Limited Company having its registered Office in Bombay and also a factory at Kanjurmarg in State of Maharashtra. The Company has also various branches and factories situated all over India. The Respondent No. 1 was employed as a clerk by the Company from March 30, 1942. The Respondent No. 1 retired on reaching the age of superannuation on April 1, 1981 and at the time of retirement the salary of Respondent No. 1 was Rs. 989. 45. The respondent No. 1 was covered by the provisions of the Payment of Gratuity Act, 1972 till June 1972 as after that date, the total wages drawn by Respondent No. 1 exceeded Rs. 1,000/ -. On retirement, the Company paid a sum of Rs. 14,841. 75 as gratuity to Respondent No. 1 for 30 eligible years of continuous service. The amount was calculated by dividing a months wages by 30 days. The Respondent No. 1 accepted the amount and thereafter instituted proceedings by filing an application before the Controlling Authority under the Act. The Respondent No. 1 claimed that the gratuity should have been calculated by dividing monthly salary by number of days working in a month. The Respondent No. 1 claimed that the employees of the Company worked only on 22 days in a month as Saturday and Sunday are declared as holidays. The respondent No. 1 claimed that the difference of amount of gratuity which is paid to Respondent no. 1 and which is payable was Rs. 4,947. 25.( 3 ) THE Company resisted the application by claiming that the amount of gratuity was properly calculated. The Company claimed that till year 1972, Saturday was not a holiday but the employees used to work for half a day. By settlement between the employer and the Union, Saturday was declared as holiday by increasing the hours of work between Monday and Friday. The Company claimed that practice of arriving at day rate of wage by dividing the monthly wages by 30 days is accurate. The Controlling Authority by order dated October 7, 1981 held that the monthly wages should have been divided by 26 days and not by 30 days as was done by the Company. On the strength of this finding, the Controlling Authority directed payment of additional amount of Rs. 2,285. 25. The Respondent No. 1 challenged the order of the Controlling Authority by filing appeal before the Appellate Authority under the Act and this appeal was allowed by decision dated March 19, 1982. The Appellate Authority held that to arrive at a days wage, normal working days in a month should be taken into account and normal working days in the month in the establishment run by the petitioner are only 22 days. The Appellate Authority also observed that for the purpose of over-time wages and deduction on account of absence without leave, the Company had divided the monthly wages of employees by 22 days only. On the strength of this finding, the Appellate Authority directed payment of Rs. 5,399. 25 in addition to what the Company had paid to Respondent No. 1 towards gratuity. The order of the Appellate Authority is under challenge. ( 4 ) SHRI Cama, learned counsel appearing on behalf of the Company submitted that the view taken by the Appellate Authority is entirely unsustainable. The learned Counsel urged that it is now well settled by the decision of the Supreme Court in the case of Digvijay Woollen Mills Ltd v. Mahendra Prataprai Buck reported in 1980 (2) Labour Law Journal 252 that for arriving at a days wage, 26 working days of a month should be taken into consideration. The learned counsel urged that the Appellate Authority had by-passed the decision of the Supreme Court by observing that though the Supreme Court had observed that 26 days in a month should be taken into consideration for arriving at days wage, the observations are not applicable to all the cases. The Appellate Authority is clearly in error in by-passing the Supreme Court judgment in this fashion. The Appellate Authority also overlooked that Respondent No. 1 was covered by the provision of the Act only till June 1972 and the Company started working for 22 days in a month only after June 1972 and that too because of the settlement reached between the employees and the employer. Even in respect of the settlement, the working hours were reduced only by half-an-hour and while declaring Saturday as a holiday, the working hours between Monday and Friday were increased. In our judgment, the Appellate Authority was clearly in error in disturbing the well considered decision of the Controlling Authority. The decision of the appellate Authority is, therefore, required to be reversed.( 5 ) SHRI Cama, very fairly stated that the Company had approached this Court by filing the present petition only with a view to settle the correct position of law and the Company is not insisting that Respondent No. 1 should be deprived of the small amount awarded by the appellate Authority. Indeed by interim order passed by this Court, the Company was directed to deposit a sum of Rs. 3114/- which is difference between the amount awarded by the Controlling authority and the Appellate Authority in this Court and the said amount was withdrawn by respondent No. 1, Shri Cama stated that though the decision of the Appellate Authority is set aside, the Company does not wish to recover back the amount from Respondent No. 1. | 1[ds]The Appellate Authority is clearly in error inthe Supreme Court judgment in this fashion. The Appellate Authority also overlooked that Respondent No. 1 was covered by the provision of the Act only till June 1972 and the Company started working for 22 days in a month only after June 1972 and that too because of the settlement reached between the employees and the employer. Even in respect of the settlement, the working hours were reduced only byand while declaring Saturday as a holiday, the working hours between Monday and Friday were increased. In our judgment, the Appellate Authority was clearly in error in disturbing the well considered decision of the Controlling Authority. The decision of the appellate Authority is, therefore, required to be reversed. | 1 | 1,083 | 139 | ### 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:
M.L. PENDSE, J.( 1 ) THE short question which falls for determination in this petition filed under Articles 226 and 227 of the Constitution of India is whether for the purpose of calculating gratuity, a days wage is to be arrived at by dividing a months wages by 26 days or number of actual working days in a month. The question arises for consideration in the following circumstances:( 2 ) THE petitioner is a Public Limited Company having its registered Office in Bombay and also a factory at Kanjurmarg in State of Maharashtra. The Company has also various branches and factories situated all over India. The Respondent No. 1 was employed as a clerk by the Company from March 30, 1942. The Respondent No. 1 retired on reaching the age of superannuation on April 1, 1981 and at the time of retirement the salary of Respondent No. 1 was Rs. 989. 45. The respondent No. 1 was covered by the provisions of the Payment of Gratuity Act, 1972 till June 1972 as after that date, the total wages drawn by Respondent No. 1 exceeded Rs. 1,000/ -. On retirement, the Company paid a sum of Rs. 14,841. 75 as gratuity to Respondent No. 1 for 30 eligible years of continuous service. The amount was calculated by dividing a months wages by 30 days. The Respondent No. 1 accepted the amount and thereafter instituted proceedings by filing an application before the Controlling Authority under the Act. The Respondent No. 1 claimed that the gratuity should have been calculated by dividing monthly salary by number of days working in a month. The Respondent No. 1 claimed that the employees of the Company worked only on 22 days in a month as Saturday and Sunday are declared as holidays. The respondent No. 1 claimed that the difference of amount of gratuity which is paid to Respondent no. 1 and which is payable was Rs. 4,947. 25.( 3 ) THE Company resisted the application by claiming that the amount of gratuity was properly calculated. The Company claimed that till year 1972, Saturday was not a holiday but the employees used to work for half a day. By settlement between the employer and the Union, Saturday was declared as holiday by increasing the hours of work between Monday and Friday. The Company claimed that practice of arriving at day rate of wage by dividing the monthly wages by 30 days is accurate. The Controlling Authority by order dated October 7, 1981 held that the monthly wages should have been divided by 26 days and not by 30 days as was done by the Company. On the strength of this finding, the Controlling Authority directed payment of additional amount of Rs. 2,285. 25. The Respondent No. 1 challenged the order of the Controlling Authority by filing appeal before the Appellate Authority under the Act and this appeal was allowed by decision dated March 19, 1982. The Appellate Authority held that to arrive at a days wage, normal working days in a month should be taken into account and normal working days in the month in the establishment run by the petitioner are only 22 days. The Appellate Authority also observed that for the purpose of over-time wages and deduction on account of absence without leave, the Company had divided the monthly wages of employees by 22 days only. On the strength of this finding, the Appellate Authority directed payment of Rs. 5,399. 25 in addition to what the Company had paid to Respondent No. 1 towards gratuity. The order of the Appellate Authority is under challenge. ( 4 ) SHRI Cama, learned counsel appearing on behalf of the Company submitted that the view taken by the Appellate Authority is entirely unsustainable. The learned Counsel urged that it is now well settled by the decision of the Supreme Court in the case of Digvijay Woollen Mills Ltd v. Mahendra Prataprai Buck reported in 1980 (2) Labour Law Journal 252 that for arriving at a days wage, 26 working days of a month should be taken into consideration. The learned counsel urged that the Appellate Authority had by-passed the decision of the Supreme Court by observing that though the Supreme Court had observed that 26 days in a month should be taken into consideration for arriving at days wage, the observations are not applicable to all the cases. The Appellate Authority is clearly in error in by-passing the Supreme Court judgment in this fashion. The Appellate Authority also overlooked that Respondent No. 1 was covered by the provision of the Act only till June 1972 and the Company started working for 22 days in a month only after June 1972 and that too because of the settlement reached between the employees and the employer. Even in respect of the settlement, the working hours were reduced only by half-an-hour and while declaring Saturday as a holiday, the working hours between Monday and Friday were increased. In our judgment, the Appellate Authority was clearly in error in disturbing the well considered decision of the Controlling Authority. The decision of the appellate Authority is, therefore, required to be reversed.( 5 ) SHRI Cama, very fairly stated that the Company had approached this Court by filing the present petition only with a view to settle the correct position of law and the Company is not insisting that Respondent No. 1 should be deprived of the small amount awarded by the appellate Authority. Indeed by interim order passed by this Court, the Company was directed to deposit a sum of Rs. 3114/- which is difference between the amount awarded by the Controlling authority and the Appellate Authority in this Court and the said amount was withdrawn by respondent No. 1, Shri Cama stated that though the decision of the Appellate Authority is set aside, the Company does not wish to recover back the amount from Respondent No. 1.
### Response:
1
### Explanation:
The Appellate Authority is clearly in error inthe Supreme Court judgment in this fashion. The Appellate Authority also overlooked that Respondent No. 1 was covered by the provision of the Act only till June 1972 and the Company started working for 22 days in a month only after June 1972 and that too because of the settlement reached between the employees and the employer. Even in respect of the settlement, the working hours were reduced only byand while declaring Saturday as a holiday, the working hours between Monday and Friday were increased. In our judgment, the Appellate Authority was clearly in error in disturbing the well considered decision of the Controlling Authority. The decision of the appellate Authority is, therefore, required to be reversed.
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Bansi Lal Kaul Vs. State of Jammu and Kashmir | SIKRI, J. 1. This is a petition under Article 32 of the Constitution challenging the petitioners detention. It was stated in the petition that the petitioner was arrested on June 25, 1970 and was detained in Police Station Koti Bagh, till June 26, 1970, without any warrants. It was further stated that the petitioner was not served with any warrants at the time do arrest but was made to sign the warrants of detention issued from the District Magistrate, Srinagar, in Central Jail after the lapse of over ten days.2. This Court issued rule nisi and assigned a counsel to appear as amicus curiae. 3. The Deputy Secretary to the Government of Jammu and Kashmir, Home Department, has filed an affidavit on behalf of the State. It is stated therein that the District Magistrate, Srinagar, by order, dated June 25, 1970, ordered that the petitioner be detained under the Jammu and Kashmir Prevention Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State. The said order of detention was executed on June 26, 1970, by the Deputy Superintendent of Police, City South Zone, Srinagar. It is further stated that the petitioner was informed of the District Magistrates order, dated June 25, 1970, that it was against the public interest to disclose to him the grounds on which the detention order was made. The said order of detention was approved after the case had been places before the Chief Minister in-charge of the Home Department. It was further stated that the notice of the detention order was given by the executing officer, Shri A.M. Watali, to this petitioner by reading over the same to him and further that the petitioner was also informed by the Superintendent, Central Jail, Srinagar, that it was against public interest to disclose to his the grounds on which the detention order was made and in token thereof the petitioner had signed the order of non-disclosure of grounds. 4. The petitioner filed a rejoinder affidavit. He reiterated that he was arrested of June 25, 1970 and not on June 26, 1970. He denied that he was ever informed of the order of the District Magistrate. He further stated that he was informed of the order, dated June 25, 1970, on July 6, 1970. The further alleged that the order of the Home Minister approving the detention of the 24 days. It was denied that the order of the Government was passed on July 16, 1970, as it purposed to do on the face of it.5. This petition was heard immediately after Writ Petition No. 310 of 1970, in which we have just delivered judgment. The only additional point raised by the learned counsel was that as Order No. PDA/DMS/86/70, dated June 25, 1970, which directed that the petitioner be informed that it was against public interest to disclose to him the grounds on which the detention order was made was not communicated to him till July 6, 1970, the detention order is bad. The learned counsel for the State showed the orginial order to us and it bears the signature of the petitioner and a under it the date July 3, 1970, appears. In view of this we must hold that the affidavit sworn to before us by the petitioner regarding this fact and that as a matter of fact he was informed of the said order on July 3, 1970. 6. We need not go into the question whether he was arrested on June 25, or June 26, 1970, because even if he was arrested on June 25, 1970, without any warrant this would not make the present detention illegal. | 0[ds]5. This petition was heard immediately after Writ Petition No. 310 of 1970, in which we have just delivered judgment.The only additional point raised by the learned counsel was that as Order No. PDA/DMS/86/70, dated June 25, 1970, which directed that the petitioner be informed that it was against public interest to disclose to him the grounds on which the detention order was made was not communicated to him till July 6, 1970, the detention order is bad.The learned counsel for the State showed the orginial order to us and it bears the signature of the petitioner and a under it the date July 3, 1970, appears.In view of this we must hold that the affidavit sworn to before us by the petitioner regarding this fact and that as a matter of fact he was informed of the said order on July 3, 19706. We need not go into the question whether he was arrested on June 25, or June 26, 1970, because even if he was arrested on June 25, 1970, without any warrant this would not make the present detention illegal. | 0 | 693 | 206 | ### 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:
SIKRI, J. 1. This is a petition under Article 32 of the Constitution challenging the petitioners detention. It was stated in the petition that the petitioner was arrested on June 25, 1970 and was detained in Police Station Koti Bagh, till June 26, 1970, without any warrants. It was further stated that the petitioner was not served with any warrants at the time do arrest but was made to sign the warrants of detention issued from the District Magistrate, Srinagar, in Central Jail after the lapse of over ten days.2. This Court issued rule nisi and assigned a counsel to appear as amicus curiae. 3. The Deputy Secretary to the Government of Jammu and Kashmir, Home Department, has filed an affidavit on behalf of the State. It is stated therein that the District Magistrate, Srinagar, by order, dated June 25, 1970, ordered that the petitioner be detained under the Jammu and Kashmir Prevention Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State. The said order of detention was executed on June 26, 1970, by the Deputy Superintendent of Police, City South Zone, Srinagar. It is further stated that the petitioner was informed of the District Magistrates order, dated June 25, 1970, that it was against the public interest to disclose to him the grounds on which the detention order was made. The said order of detention was approved after the case had been places before the Chief Minister in-charge of the Home Department. It was further stated that the notice of the detention order was given by the executing officer, Shri A.M. Watali, to this petitioner by reading over the same to him and further that the petitioner was also informed by the Superintendent, Central Jail, Srinagar, that it was against public interest to disclose to his the grounds on which the detention order was made and in token thereof the petitioner had signed the order of non-disclosure of grounds. 4. The petitioner filed a rejoinder affidavit. He reiterated that he was arrested of June 25, 1970 and not on June 26, 1970. He denied that he was ever informed of the order of the District Magistrate. He further stated that he was informed of the order, dated June 25, 1970, on July 6, 1970. The further alleged that the order of the Home Minister approving the detention of the 24 days. It was denied that the order of the Government was passed on July 16, 1970, as it purposed to do on the face of it.5. This petition was heard immediately after Writ Petition No. 310 of 1970, in which we have just delivered judgment. The only additional point raised by the learned counsel was that as Order No. PDA/DMS/86/70, dated June 25, 1970, which directed that the petitioner be informed that it was against public interest to disclose to him the grounds on which the detention order was made was not communicated to him till July 6, 1970, the detention order is bad. The learned counsel for the State showed the orginial order to us and it bears the signature of the petitioner and a under it the date July 3, 1970, appears. In view of this we must hold that the affidavit sworn to before us by the petitioner regarding this fact and that as a matter of fact he was informed of the said order on July 3, 1970. 6. We need not go into the question whether he was arrested on June 25, or June 26, 1970, because even if he was arrested on June 25, 1970, without any warrant this would not make the present detention illegal.
### Response:
0
### Explanation:
5. This petition was heard immediately after Writ Petition No. 310 of 1970, in which we have just delivered judgment.The only additional point raised by the learned counsel was that as Order No. PDA/DMS/86/70, dated June 25, 1970, which directed that the petitioner be informed that it was against public interest to disclose to him the grounds on which the detention order was made was not communicated to him till July 6, 1970, the detention order is bad.The learned counsel for the State showed the orginial order to us and it bears the signature of the petitioner and a under it the date July 3, 1970, appears.In view of this we must hold that the affidavit sworn to before us by the petitioner regarding this fact and that as a matter of fact he was informed of the said order on July 3, 19706. We need not go into the question whether he was arrested on June 25, or June 26, 1970, because even if he was arrested on June 25, 1970, without any warrant this would not make the present detention illegal.
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SRI ABHYUDAYA KUMAR SHAHI Vs. M/S. BHARAT PRADHAN FILLING CENTRE | 1. Leave granted. 2. In this appeal, the appellant, said to be the Chief Divisional Retail Sales Manager, Divisional Office, Indian Oil Corporation Limited, Gorakhpur has questioned the order dated 30.09.2021, as passed by the High Court of Judicature at Allahabad in Contempt Application (Civil) No. 3938 of 2021, whereby the High Court directed that the appeal filed by the applicant (respondent herein) shall be decided by the Dispute Resolution Panel, Gorakhpur within a month; failing which, the present petitioner shall appear inperson before the Court on the next date. 3. The relevant background aspects of the matter are that the present respondent preferred a writ petition bearing No. 26456 of 2020 in the High Court questioning the validity of an order dated 27.11.2020 whereby, its dealership was terminated while giving an option to challenge the termination order by way of an appeal within 30 days along with fees in the sum of Rs. 5,00,000/- (Rupees Five Lakhs). 4. The High Court, in its order dated 19.01.2021 in the said writ petition, formed an opinion that the order in question requiring pre-deposit of Rs. 5,00,000/- (Rupees Five Lakhs) was not sustainable and hence, directed that if the appeal was preferred within 10 days, the Appellate Authority would consider the same without insisting upon pre-deposit as per the amended Marketing Discipline Guidelines, 2012. The appeal having not been decided, the respondent filed the aforesaid Contempt Application bearing No. 3938 of 2021. 5. In the impugned order dated 30.09.2021 in the said contempt application, the High Court, even after taking note of the fact that the procedure for hearing of the appeals had changed under the new guidelines, proceeded to direct that the appeal filed by the present respondent be decided by the Dispute Resolution Panel, as per the guidelines existing on the date of filing of appeal; and even directed the present appellant to remain personally present before the Court, if the appeal was not so decided. 6. On 29.10.2021, after examining the contents of the order impugned and the material placed on record, this Court, while issuing notice in the petition leading to this appeal [SLP(C) No. 16767 of 2021], stayed the operation and effect of the impugned order dated 30.09.2021. 7. It appears that in the meantime, the respondent had also filed another writ petition, being Writ-C No.23870 of 2021, challenging the process whereby its appeal had been forwarded to the Appellate Authority at the Head Office, instead of the Dispute Resolution Forum. 8. Now, by way of an application (I.A. 169869 of 2021), it has been pointed out on behalf of the appellant that after passing of the aforesaid order dated 29.10.2021 by this Court, the High Court had finally disposed of the said writ petition (No. 23870 of 2021) by its order dated 09.11.2021. 9. In the aforesaid order dated 09.11.2021, the High Court took note of the admitted fact that during the pendency of appeal, the appellate forum had changed in view of the amendments in the guidelines; and the Dispute Resolution Forum, as provided earlier, was not in existence. The High Court also took note of the fact that there was no challenge to the amended guidelines, which provide that the Director, Indian Oil Corporation Limited shall be the Appellate Authority. Thus, the High Court found no ground to issue mandamus so as to place the appeal filed by the present respondent before the Dispute Resolution Forum. The High Court also took note of the submission made by the present respondent (writ petitioner) that it would be giving up the claim to place the appeal before the erstwhile forum and agreed for disposal of the appeal as per the amended guidelines. While disposing of the writ petition, the High Court also provided for expeditious proceedings by the Appellate Authority. It has further been pointed out that the Appellate Authority indeed examined the appeal and heard the parties on 16.12.2021. 10. In view of the subsequent events above-mentioned, it is but clear that the present respondent has given up its insistence for decision of the appeal by way of erstwhile mechanism, and rightly so because, even if the respondent (writ petitioner) had the right of consideration of appeal, it had no corresponding right to insist for consideration of the appeal by a forum that was no longer in existence. 11. We need not dilate further on the matter. Suffice it to observe that the impugned order dated 30.09.2021, which was even otherwise questionable for being not in conformity with law, has lost its relevance and even the contempt proceedings in the High Court in Contempt Application (Civil) No. 3938 of 2021 are rendered redundant. | 1[ds]10. In view of the subsequent events above-mentioned, it is but clear that the present respondent has given up its insistence for decision of the appeal by way of erstwhile mechanism, and rightly so because, even if the respondent (writ petitioner) had the right of consideration of appeal, it had no corresponding right to insist for consideration of the appeal by a forum that was no longer in existence.11. We need not dilate further on the matter. Suffice it to observe that the impugned order dated 30.09.2021, which was even otherwise questionable for being not in conformity with law, has lost its relevance and even the contempt proceedings in the High Court in Contempt Application (Civil) No. 3938 of 2021 are rendered redundant. | 1 | 888 | 142 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. Leave granted. 2. In this appeal, the appellant, said to be the Chief Divisional Retail Sales Manager, Divisional Office, Indian Oil Corporation Limited, Gorakhpur has questioned the order dated 30.09.2021, as passed by the High Court of Judicature at Allahabad in Contempt Application (Civil) No. 3938 of 2021, whereby the High Court directed that the appeal filed by the applicant (respondent herein) shall be decided by the Dispute Resolution Panel, Gorakhpur within a month; failing which, the present petitioner shall appear inperson before the Court on the next date. 3. The relevant background aspects of the matter are that the present respondent preferred a writ petition bearing No. 26456 of 2020 in the High Court questioning the validity of an order dated 27.11.2020 whereby, its dealership was terminated while giving an option to challenge the termination order by way of an appeal within 30 days along with fees in the sum of Rs. 5,00,000/- (Rupees Five Lakhs). 4. The High Court, in its order dated 19.01.2021 in the said writ petition, formed an opinion that the order in question requiring pre-deposit of Rs. 5,00,000/- (Rupees Five Lakhs) was not sustainable and hence, directed that if the appeal was preferred within 10 days, the Appellate Authority would consider the same without insisting upon pre-deposit as per the amended Marketing Discipline Guidelines, 2012. The appeal having not been decided, the respondent filed the aforesaid Contempt Application bearing No. 3938 of 2021. 5. In the impugned order dated 30.09.2021 in the said contempt application, the High Court, even after taking note of the fact that the procedure for hearing of the appeals had changed under the new guidelines, proceeded to direct that the appeal filed by the present respondent be decided by the Dispute Resolution Panel, as per the guidelines existing on the date of filing of appeal; and even directed the present appellant to remain personally present before the Court, if the appeal was not so decided. 6. On 29.10.2021, after examining the contents of the order impugned and the material placed on record, this Court, while issuing notice in the petition leading to this appeal [SLP(C) No. 16767 of 2021], stayed the operation and effect of the impugned order dated 30.09.2021. 7. It appears that in the meantime, the respondent had also filed another writ petition, being Writ-C No.23870 of 2021, challenging the process whereby its appeal had been forwarded to the Appellate Authority at the Head Office, instead of the Dispute Resolution Forum. 8. Now, by way of an application (I.A. 169869 of 2021), it has been pointed out on behalf of the appellant that after passing of the aforesaid order dated 29.10.2021 by this Court, the High Court had finally disposed of the said writ petition (No. 23870 of 2021) by its order dated 09.11.2021. 9. In the aforesaid order dated 09.11.2021, the High Court took note of the admitted fact that during the pendency of appeal, the appellate forum had changed in view of the amendments in the guidelines; and the Dispute Resolution Forum, as provided earlier, was not in existence. The High Court also took note of the fact that there was no challenge to the amended guidelines, which provide that the Director, Indian Oil Corporation Limited shall be the Appellate Authority. Thus, the High Court found no ground to issue mandamus so as to place the appeal filed by the present respondent before the Dispute Resolution Forum. The High Court also took note of the submission made by the present respondent (writ petitioner) that it would be giving up the claim to place the appeal before the erstwhile forum and agreed for disposal of the appeal as per the amended guidelines. While disposing of the writ petition, the High Court also provided for expeditious proceedings by the Appellate Authority. It has further been pointed out that the Appellate Authority indeed examined the appeal and heard the parties on 16.12.2021. 10. In view of the subsequent events above-mentioned, it is but clear that the present respondent has given up its insistence for decision of the appeal by way of erstwhile mechanism, and rightly so because, even if the respondent (writ petitioner) had the right of consideration of appeal, it had no corresponding right to insist for consideration of the appeal by a forum that was no longer in existence. 11. We need not dilate further on the matter. Suffice it to observe that the impugned order dated 30.09.2021, which was even otherwise questionable for being not in conformity with law, has lost its relevance and even the contempt proceedings in the High Court in Contempt Application (Civil) No. 3938 of 2021 are rendered redundant.
### Response:
1
### Explanation:
10. In view of the subsequent events above-mentioned, it is but clear that the present respondent has given up its insistence for decision of the appeal by way of erstwhile mechanism, and rightly so because, even if the respondent (writ petitioner) had the right of consideration of appeal, it had no corresponding right to insist for consideration of the appeal by a forum that was no longer in existence.11. We need not dilate further on the matter. Suffice it to observe that the impugned order dated 30.09.2021, which was even otherwise questionable for being not in conformity with law, has lost its relevance and even the contempt proceedings in the High Court in Contempt Application (Civil) No. 3938 of 2021 are rendered redundant.
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State of Madhya Pradesh Vs. Shamshersingh & Another | law now stands in any prosecution under the Act which requires a culpable mental state on the part of the accused, the same must be presumed unless the accused proves that he had no such mental state with respect to the offence for which he is tried. Now according to the explanation to Section 10-C(1) culpable mental state includes intention, motive, knowledge of a fact and belief in or reason to believe a fact. The degree of proof expected to rebut the presumption has been indicated by sub-section (2) thereof which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability. Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution. There can therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal case (AIR 1966 SC 43 ) and the same no longer holds the field. 10. Reverting back to Section 7 of the Act as amended by Act 36 of 1967, it is manifestly seen that the crucial words "whether knowingly, intentionally or otherwise" were inserted in Section 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately. The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation. To the same end, a further amendment came to be made in 1974, with which we are not now directly concerned but reference to which we have made in order to show the scheme of the Act and the amplitude of Section 7 at different stages. 11. We are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). We therefore hold that the trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the FMC Order read with Sections 3 and 7 of the EC Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra. 12. As regards the second question, we find that the trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the FMC Order and they cannot be found guilty of having attempted to export the fertiliser bags. In the commission of an offence there are four stages viz. intention, preparation, attempt and execution. The first two stage would not attract culpability but the third and fourth stages would certainly attract culpability. The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefor from Madhya Pradesh to Maharashtra. The trucks were coming from Indore and were proceeding towards Maharashtra. The interception had taken place at Sendhwa sales tax barrier which is only 8 miles away from the border of Maharashtra State. If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales tax barrier. Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparation alone. 13. We have already seen that clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit. It would therefore be wrong to view the act of transportation of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence. Hence the second question is also answered in favour of the State. 14. In the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable. The State ought to have been granted leave under Section 378(3) CrPC and the High Court was wrong in declining to grant leave to the State. However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted by the trial Magistrate. The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them. | 1[ds]6. Taking up the first question for consideration, we may at once state that the trial Magistrate and the High Court have failed to comprehend and construe Section 7(1) of the Act in its fullplain reading of the section after its amendment made it clear that by the amendment, the legislature intended to impose strict liability for contravention of any order made under Section 3 of the Act. In other words, by the use of the express words the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under Section 7 of theby introducing these words in Section 7 by the aforesaid statutory amendment, the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathu Lal case (AIR 1966 SCcan therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal case (AIR 1966 SC 43 ) and the same no longer holds theWe are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). We therefore hold that the trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the FMC Order read with Sections 3 and 7 of the EC Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh toAs regards the second question, we find that the trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the FMC Order and they cannot be found guilty of having attempted to export the fertiliser bags. In the commission of an offence there are four stages viz. intention, preparation, attempt and execution. The first two stage would not attract culpability but the third and fourth stages would certainly attract culpability. The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefor from Madhya Pradesh to Maharashtra. The trucks were coming from Indore and were proceeding towards Maharashtra. The interception had taken place at Sendhwa sales tax barrier which is only 8 miles away from the border of Maharashtra State. If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales tax barrier. Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparationWe have already seen that clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit. It would therefore be wrong to view the act of transportation of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence. Hence the second question is also answered in favour of theIn the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable. The State ought to have been granted leave under Section 378(3) CrPC and the High Court was wrong in declining to grant leave to the State. However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted by the trial Magistrate. The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them. | 1 | 3,363 | 902 | ### 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:
law now stands in any prosecution under the Act which requires a culpable mental state on the part of the accused, the same must be presumed unless the accused proves that he had no such mental state with respect to the offence for which he is tried. Now according to the explanation to Section 10-C(1) culpable mental state includes intention, motive, knowledge of a fact and belief in or reason to believe a fact. The degree of proof expected to rebut the presumption has been indicated by sub-section (2) thereof which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability. Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution. There can therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal case (AIR 1966 SC 43 ) and the same no longer holds the field. 10. Reverting back to Section 7 of the Act as amended by Act 36 of 1967, it is manifestly seen that the crucial words "whether knowingly, intentionally or otherwise" were inserted in Section 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately. The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation. To the same end, a further amendment came to be made in 1974, with which we are not now directly concerned but reference to which we have made in order to show the scheme of the Act and the amplitude of Section 7 at different stages. 11. We are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). We therefore hold that the trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the FMC Order read with Sections 3 and 7 of the EC Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra. 12. As regards the second question, we find that the trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the FMC Order and they cannot be found guilty of having attempted to export the fertiliser bags. In the commission of an offence there are four stages viz. intention, preparation, attempt and execution. The first two stage would not attract culpability but the third and fourth stages would certainly attract culpability. The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefor from Madhya Pradesh to Maharashtra. The trucks were coming from Indore and were proceeding towards Maharashtra. The interception had taken place at Sendhwa sales tax barrier which is only 8 miles away from the border of Maharashtra State. If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales tax barrier. Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparation alone. 13. We have already seen that clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit. It would therefore be wrong to view the act of transportation of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence. Hence the second question is also answered in favour of the State. 14. In the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable. The State ought to have been granted leave under Section 378(3) CrPC and the High Court was wrong in declining to grant leave to the State. However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted by the trial Magistrate. The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them.
### Response:
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### Explanation:
6. Taking up the first question for consideration, we may at once state that the trial Magistrate and the High Court have failed to comprehend and construe Section 7(1) of the Act in its fullplain reading of the section after its amendment made it clear that by the amendment, the legislature intended to impose strict liability for contravention of any order made under Section 3 of the Act. In other words, by the use of the express words the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under Section 7 of theby introducing these words in Section 7 by the aforesaid statutory amendment, the legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathu Lal case (AIR 1966 SCcan therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal case (AIR 1966 SC 43 ) and the same no longer holds theWe are in full agreement with the enunciation of law as regards Section 7 of the Act in Swastik Oil Industries ((1978) 19 Guj LR 1117). We therefore hold that the trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the FMC Order read with Sections 3 and 7 of the EC Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh toAs regards the second question, we find that the trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the FMC Order and they cannot be found guilty of having attempted to export the fertiliser bags. In the commission of an offence there are four stages viz. intention, preparation, attempt and execution. The first two stage would not attract culpability but the third and fourth stages would certainly attract culpability. The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefor from Madhya Pradesh to Maharashtra. The trucks were coming from Indore and were proceeding towards Maharashtra. The interception had taken place at Sendhwa sales tax barrier which is only 8 miles away from the border of Maharashtra State. If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the FMC Order. It was not therefore a case of mere preparation viz. the respondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharashtra. They were cases where the bags had been procured and were being taken in the lorries under cover of sales invoices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales tax barrier. Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh States itself. They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparationWe have already seen that clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit. It would therefore be wrong to view the act of transportation of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence. Hence the second question is also answered in favour of theIn the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable. The State ought to have been granted leave under Section 378(3) CrPC and the High Court was wrong in declining to grant leave to the State. However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass nay order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquitted by the trial Magistrate. The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them.
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Dhulabhai And Others Vs. The State Of Madhya Pradesh And Another | 1965 SC 1942 ) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.30. In the light of these conclusions we have to see now the present case stands. Section 3 was the charging section. It spoke of the incidence of the tax. It consisted of several sub-sections. These sub-sections laid the tax on dealers according to their taxable turnover and in the case of a dealer who imported goods into Madhya Bharat the taxable turnover was Rs. 5000. Section 14 made certain exclusions and exemptions, and Section 5 prescribed the rate of tax. That Section read:"5 (1) The tax payable by a dealer under this Act shall be at a single point and shall not be less than Rs. 1-9-0 per cent or more than 6 1/4, per cent of the taxable turnover, as notified from time to time by the Government by publication in the official gazette:Provided that Government may in respect of special class of goods charge tax up to 12 1/2 per cent of the taxable turnover.(2) The Government while notifying the tax payable by a dealer may also notify the goods and the point of their sale at which the tax is payable."31. In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself postulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301. This could however be avoided if the tax was saved by Art. 304 (a), That required that similar goods manufactured or produced in Madhya Bharat had to bear an equal tax. Such equal tax was not imposed hence the notifications were struck down as making discrimination and rendering trade and commerce unfree. This was the effect of Bhailals case, 1960 MPLJ 601. 32. No doubt the Madhya Bharat Sales Tax Act contained provisions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category No.3 and 4 rather than in category No.2 above. It was directly covered by the decision of this Court in Venkatuamans case, 1966-2 SCR 229 = (AIR 1966 1089) read with Circos Coffee Co., 1967-19 STC 66 (Sc) and Senthilanthan Chettiriars case, C. A. No. 1045 of 1066, D/-20-7-1967 (SC) already referred to. We would have consider this matter again if Venkataramans case, 1966-2 SCR 229 = (AIR 1966 SC 1089 ) had been doubted before but it seems to have been followed in the last mentioned case and Pabbojan Tea Companys case, AIR 1968 SC 271 . If Kamla Mills Ltd. Case, 1966-1 SCR 64 = (AIR 1966 SC 249 ) had not expressly left the question open we would have applied the earlier case of the Special Bench but as it is we are bound not by the Special bench decision but by Venkataramans case 1966-2 SCR 229 = (AIR 1966 SC 1089 ). | 1[ds]In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself postulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301. This could however be avoided if the tax was saved by Art. 304 (a), That required that similar goods manufactured or produced in Madhya Bharat had to bear an equal tax. Such equal tax was not imposed hence the notifications were struck down as making discrimination and rendering trade and commerce unfree. This was the effect of Bhailals case, 1960 MPLJ 601. No doubt the Madhya Bharat Sales Tax Act contained provisions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category No.3 and 4 rather than in category No.2 above. It was directly covered by the decision of this Court in Venkatuamans case, 1966-2 SCR 229 = (AIR 1966 1089) read with Circos Coffee Co., 1967-19 STC 66 (Sc) and Senthilanthan Chettiriars case, C. A. No. 1045 of 1066, D/-20-7-1967 (SC) already referred to. We would have consider this matter again if Venkataramans case, 1966-2 SCR 229 = (AIR 1966 SC 1089 ) had been doubted before but it seems to have been followed in the last mentioned case and Pabbojan Tea Companys case, AIR 1968 SC 271 . If Kamla Mills Ltd. Case, 1966-1 SCR 64 = (AIR 1966 SC 249 ) had not expressly left the question open we would have applied the earlier case of the Special Bench but as it is we are bound not by the Special bench decision but by Venkataramans case 1966-2 SCR 229 = (AIR 1966 SC 1089 ). We must therefore allow these appeals with cost. The judgment of the High Court is set aside and suits are decreed. The order for costs shall be as in the suit. The costs in the High Court shall be borne as incurred. | 1 | 9,852 | 442 | ### 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:
1965 SC 1942 ) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.30. In the light of these conclusions we have to see now the present case stands. Section 3 was the charging section. It spoke of the incidence of the tax. It consisted of several sub-sections. These sub-sections laid the tax on dealers according to their taxable turnover and in the case of a dealer who imported goods into Madhya Bharat the taxable turnover was Rs. 5000. Section 14 made certain exclusions and exemptions, and Section 5 prescribed the rate of tax. That Section read:"5 (1) The tax payable by a dealer under this Act shall be at a single point and shall not be less than Rs. 1-9-0 per cent or more than 6 1/4, per cent of the taxable turnover, as notified from time to time by the Government by publication in the official gazette:Provided that Government may in respect of special class of goods charge tax up to 12 1/2 per cent of the taxable turnover.(2) The Government while notifying the tax payable by a dealer may also notify the goods and the point of their sale at which the tax is payable."31. In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself postulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301. This could however be avoided if the tax was saved by Art. 304 (a), That required that similar goods manufactured or produced in Madhya Bharat had to bear an equal tax. Such equal tax was not imposed hence the notifications were struck down as making discrimination and rendering trade and commerce unfree. This was the effect of Bhailals case, 1960 MPLJ 601. 32. No doubt the Madhya Bharat Sales Tax Act contained provisions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category No.3 and 4 rather than in category No.2 above. It was directly covered by the decision of this Court in Venkatuamans case, 1966-2 SCR 229 = (AIR 1966 1089) read with Circos Coffee Co., 1967-19 STC 66 (Sc) and Senthilanthan Chettiriars case, C. A. No. 1045 of 1066, D/-20-7-1967 (SC) already referred to. We would have consider this matter again if Venkataramans case, 1966-2 SCR 229 = (AIR 1966 SC 1089 ) had been doubted before but it seems to have been followed in the last mentioned case and Pabbojan Tea Companys case, AIR 1968 SC 271 . If Kamla Mills Ltd. Case, 1966-1 SCR 64 = (AIR 1966 SC 249 ) had not expressly left the question open we would have applied the earlier case of the Special Bench but as it is we are bound not by the Special bench decision but by Venkataramans case 1966-2 SCR 229 = (AIR 1966 SC 1089 ).
### Response:
1
### Explanation:
In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself postulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301. This could however be avoided if the tax was saved by Art. 304 (a), That required that similar goods manufactured or produced in Madhya Bharat had to bear an equal tax. Such equal tax was not imposed hence the notifications were struck down as making discrimination and rendering trade and commerce unfree. This was the effect of Bhailals case, 1960 MPLJ 601. No doubt the Madhya Bharat Sales Tax Act contained provisions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category No.3 and 4 rather than in category No.2 above. It was directly covered by the decision of this Court in Venkatuamans case, 1966-2 SCR 229 = (AIR 1966 1089) read with Circos Coffee Co., 1967-19 STC 66 (Sc) and Senthilanthan Chettiriars case, C. A. No. 1045 of 1066, D/-20-7-1967 (SC) already referred to. We would have consider this matter again if Venkataramans case, 1966-2 SCR 229 = (AIR 1966 SC 1089 ) had been doubted before but it seems to have been followed in the last mentioned case and Pabbojan Tea Companys case, AIR 1968 SC 271 . If Kamla Mills Ltd. Case, 1966-1 SCR 64 = (AIR 1966 SC 249 ) had not expressly left the question open we would have applied the earlier case of the Special Bench but as it is we are bound not by the Special bench decision but by Venkataramans case 1966-2 SCR 229 = (AIR 1966 SC 1089 ). We must therefore allow these appeals with cost. The judgment of the High Court is set aside and suits are decreed. The order for costs shall be as in the suit. The costs in the High Court shall be borne as incurred.
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