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Narayanlal Bansilal Pittie Vs. Tarabai Motilal (Dead) By L.Rs | a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.19. for the plaintiffs said that Tarabai did not make a counter-claim in the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to the counter-claim filed in Bombay the claim for Rs. 93, 827-4-6 if made by Tarabai was barred. That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of the counter-claim that there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.20. Counsel for the plaintiffs submitted that Pittie did not enter the witness-box to deny the claim made in the plaint and he examined no witnesses in support of his defence nor did he produce his books of account to support his case. Counsel urged that even on the case of Pittie the partnership had earned in the first two years profit and in respect of that profit no claim was made by Pittie at any time. That conduct according to counsel for the plaintiffs supports Tarabais claim that the profit was wiped out be the losses suffered by the partnership in the later three years. On behalf of Pittie it is urged that he could not give evidence due to ill health. Pittie had applied before the Trial Court that he be examined on commission, because he had suffered a coronary attack. The application made by him at the trial was rejected by the Civil Judge. In his application, dated April 18, 1961, Pittie stated that his case was fixed on April 18, 1961, for evidence of the parties and the parties were ordered to call for their witnesses and keep them present on that date, but Tarabai had not called any witnesses and it was therefore difficult for him to consider whether he was required to tender any rebuttal evidence since the burden of proof was wholly on Tarabai. He further stated that he desired to give evidence in Court, but as he was "sick and bedridden since last three months and was under the treatment of doctors" he was not in a position to undergo journey from Bombay to Aurangabad, and he prayed that he should be examined on commission. The application was supported by a "certificate" of a leading physician in Bombay who stated that Pittie "was under treatment for heart and blood pressure and for the sake of his health he had been advised to stay in Bombay for 2 months for rest and treatment". The application filed by Pittie was rejected by the Court.21. On November 21, 1962, when the case was on board for hearing before the Court, Pittie applied for an adjournment on the ground that as his nephew Madanlal, son of Govindlal, had died a few days before that date at Bombay, he could not come to Aurangabad from Bombay to give evidence and he therefore prayed that the case may be adjourned for three weeks. The application was supported by a letter addressed by Pittie to his lawyer. This application was rejected by the Court and the case was heard. We do not think that Pitties absence from the witness-box was deliberate. He was unable on account of circumstances beyond his control to remain present in the Court to be examined.22. The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/- odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983 approximately an amount of Rs. 12, 000/- was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton, cotton-seed and cotton bales and that he agreed to pay in November, 1930, Rs. 93, 827-4-6 is not proved. | 1[ds]18. A clinching circumstance is that Tarabai made no claim, when the parties negotiated a settlement of the suit filed by Pittie on the mutual, open and current account and paid the amount settled in two instalments without demanding that her claim against Pittie may be given credit for. If there was truth in the story of Tarabai and Pittie had agreed to pay Rs. 93,with interest, such a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.for the plaintiffs said that Tarabai did not make ain the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to thefiled in Bombay the claim for Rs. 93,f made by Tarabai was barred.That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of thethat there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983 approximately an amount of Rs. 12, 000/was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton,and cotton bales and that he agreed to pay in November, 1930, Rs. 93,is not proved. | 1 | 5,719 | 644 | ### Instruction:
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a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.19. for the plaintiffs said that Tarabai did not make a counter-claim in the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to the counter-claim filed in Bombay the claim for Rs. 93, 827-4-6 if made by Tarabai was barred. That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of the counter-claim that there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.20. Counsel for the plaintiffs submitted that Pittie did not enter the witness-box to deny the claim made in the plaint and he examined no witnesses in support of his defence nor did he produce his books of account to support his case. Counsel urged that even on the case of Pittie the partnership had earned in the first two years profit and in respect of that profit no claim was made by Pittie at any time. That conduct according to counsel for the plaintiffs supports Tarabais claim that the profit was wiped out be the losses suffered by the partnership in the later three years. On behalf of Pittie it is urged that he could not give evidence due to ill health. Pittie had applied before the Trial Court that he be examined on commission, because he had suffered a coronary attack. The application made by him at the trial was rejected by the Civil Judge. In his application, dated April 18, 1961, Pittie stated that his case was fixed on April 18, 1961, for evidence of the parties and the parties were ordered to call for their witnesses and keep them present on that date, but Tarabai had not called any witnesses and it was therefore difficult for him to consider whether he was required to tender any rebuttal evidence since the burden of proof was wholly on Tarabai. He further stated that he desired to give evidence in Court, but as he was "sick and bedridden since last three months and was under the treatment of doctors" he was not in a position to undergo journey from Bombay to Aurangabad, and he prayed that he should be examined on commission. The application was supported by a "certificate" of a leading physician in Bombay who stated that Pittie "was under treatment for heart and blood pressure and for the sake of his health he had been advised to stay in Bombay for 2 months for rest and treatment". The application filed by Pittie was rejected by the Court.21. On November 21, 1962, when the case was on board for hearing before the Court, Pittie applied for an adjournment on the ground that as his nephew Madanlal, son of Govindlal, had died a few days before that date at Bombay, he could not come to Aurangabad from Bombay to give evidence and he therefore prayed that the case may be adjourned for three weeks. The application was supported by a letter addressed by Pittie to his lawyer. This application was rejected by the Court and the case was heard. We do not think that Pitties absence from the witness-box was deliberate. He was unable on account of circumstances beyond his control to remain present in the Court to be examined.22. The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/- odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983 approximately an amount of Rs. 12, 000/- was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton, cotton-seed and cotton bales and that he agreed to pay in November, 1930, Rs. 93, 827-4-6 is not proved.
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18. A clinching circumstance is that Tarabai made no claim, when the parties negotiated a settlement of the suit filed by Pittie on the mutual, open and current account and paid the amount settled in two instalments without demanding that her claim against Pittie may be given credit for. If there was truth in the story of Tarabai and Pittie had agreed to pay Rs. 93,with interest, such a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.for the plaintiffs said that Tarabai did not make ain the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to thefiled in Bombay the claim for Rs. 93,f made by Tarabai was barred.That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of thethat there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983 approximately an amount of Rs. 12, 000/was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton,and cotton bales and that he agreed to pay in November, 1930, Rs. 93,is not proved.
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SRI MARTHANDA VARMA (D) THR. LRs. & ANR Vs. STATE OF KERALA & ORS | in terms of Section 20 of the TC Act to advise the Ruler of Travancore. D) By Order dated 11.12.2013, Conservation and Restoration Committee was appointed for Structural Renovation and Restoration. E) Since the Executive Officer proceeded on leave, an Interim Administrative Committee was appointed vide Order dated 24.04.2014 for day to day functions relating to the Temple. F) By Orders dated 09.05.2017 and 04.07.2017, apart from reconstituting the Conservation Committee, a Selection Committee for Sreekovil was also appointed to select the suitable person having requisite knowledge. These Committees were constituted at the interim stage of the proceedings in this Court. 112. We may, at this stage, also refer to some of the Reports submitted by the Administrative Committee appointed by this Court:- i) In the Report dated 05.01.2018, it was reported that taking advantage of the fact that an ad hoc committee was at the helm of the affairs of the Temple, some of the occupants of the structures on East Nada, North Gate and Utsava Madom Building continued to be or were in illegal and unauthorized occupation and that requisite action to resume the possession of said structures from such occupants ought to be undertaken. ii) In the Report dated 01.01.2020, it was stated that from 04.01l.2019 to 20.12.2019, the offerings made by the devotees visiting the Temple, in the Kanikka amounted to Rs.5,68,96,260/- (Rupees Five Crores Sixty Eight Lakhs Ninety Six Thousand Two Hundred and Sixty Only). iii) The Report dated 27.05.2020, under the signature of the District Judge, referred to the earlier Resolution dated 13.06.2017 and the direction issued by this Court in its Order dated 04.07.2017 requesting the State to nominate a panel of three officers from the Indian Audit and Accounts Service (IA &AS) to oversee the audit and accounts of the Temple and submit quarterly reports to the Administrative Committee. The Report stated:- I may also report that the Administrative Committee is perfectly in the darkness regarding the financial position and accounts of the Temple. Different District Judges discharged duties as Chairmen of the Administrative Committee during different periods since the inception of the Committee as per the directions of the Honble Supreme Court. So far, the respective Executive Officers, in charge of the financial matters of the Temple, have not produced either the budget proposals or the statement of accounts before the Administrative Committee. … … … The Executive Officer informed me that as the Principal Accountant General raised queries on the remuneration of the serving IAAS Officers and the State Government was not in a position to meet the expenses, the direction of the Honble Supreme Court could not be complied with. Subsequently, on 18.09.2017, the Administrative Committee resolved the following:- (i) The service of an IA & AS Officer is required to oversee the audit conducted by the Internal Auditor and Statutory Auditor. (ii) The service of a serving IA & AS Officer is required on foreign service terms. (iii) In addition, the services of two non IA & AS Officers, who are in service, is also required on foreign service terms to assist the IA & AS Officer. The Committee also authorized the Executive Officer to take up the matter with the Government and to bring the developments to the notice of the Honble Supreme Court. So far, the directions of the Honble Supreme Court to appoint an IA & AS Officer to oversee the internal audit and statutory audit has not been complied with. Still the Committee is in darkness on the financial position and accounts of the Temple. 113. The provisions of the TC Act with respect to the administration of the Temple are clear:- a) Under Section 18(2), the administration shall be conducted. Subject to the control and supervision of the Ruler of Travancore, by an Executive Officer appointed by him. b) Sree Padmanabhaswamy Temple Committee composed of three members nominated by the Ruler of Travancore in terms of Section 20 is to advise the Ruler of Travancore in the discharge of his functions. The Statute has thus vested the power of appointing the Executive Officer and of forming the Advisory Committee, in the Ruler of Travancore. In the Note, the appellants have stated:- (i) The Trustee shall delegate his powers of administration under Section 18(2) to the Administrative Committee which shall administer the Temple through an Executive Officer to be appointed by the Committee. (ii) On all policy matters, the Trustee shall be guided by the advice of the Advisory Committee. 114. Having given our anxious consideration to the rival suggestions, the composition of the Committees as suggested by the appellants deserves acceptance, especially in light of the conclusions arrived by us that the Managership or the Shebaitship of the Temple continues with the Family. As against the administration contemplated by Chapter III of Part I of the TC Act in the hands of the Ruler of Travancore in absolute terms, the course now suggested by the appellants is quite balanced. The Composition of the Administrative Committee as suggested is broad based and would not be loaded in favour or against the Trustee. However, considering the fact that the present interim Administrative Committee headed by the District Judge is in seisin for the last more than five years, and various District Judges as Chairpersons of the Committee conducted themselves quite well, in our view, a minor change in the Administrative Committee suggested by the appellants in their Note is called for. Instead of a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the Administrative Committee, in the interest of justice, the District Judge, Thiruvananthapuram shall be the Chairperson of the Administrative Committee. Needless to say that the present Chairperson of the Interim Administrative Committee shall continue to be the Chairperson so long as he holds the post of the District Judge, Thiruvananthapuram. The composition of the Advisory Committee will ensure that the administration of the Temple is conducted in a fair and transparent manner. | 1[ds]46. Thereafter, the learned counsel for the parties advanced submissions with regard to the Reports of the learned Amicus Curiae and Mr. Vinod Rai. This exercise involved entering into various factual issues for the first time in this Court. Since no adequate opportunity was afforded to various stakeholders involved in the matter, we refrain from considering the issues arising from said Reports.the unequivocal stand taken by the appellants in the grounds of appeal that the Temple is a public temple and no claim can probably be made by the Petitioner or anyone to owning the Temple or its treasures and that what was being sought was only the right as a trustee of the Temple to manage and administer it, must be noted at the outset.The said stand was expressly referred to in the Order dated 21.07.2011 by this Court, and subsequent Orders, and the consideration of the instant case has been premised on the said stand.53. The account given by the High Court in para 4 of the judgment under appeal states that for over 200 years prior to the re-establishment of the princely state by Marthand Varma, the Temple was under the control of Ettarayogam (group of eight and a half) including Ettuveettil Pillamars and then refers to the battle between Marthand Varma and his loyalists on one hand and the Ettuveettil Pillamars on the other, whereafter Marthand Varma took full control of the State and the Temple. The High Court then states, … it is he (Marthand Varma) who reconstructed the Temple which was in bad shape after a major fire took place years back and installed a new idol.54. Though there may be different accounts and beliefs with regard to the origin and how the Temple was set up, every version accepts that the King of Travancore had a role in the administration of the Temple to begin with, and that he was the one who re-constructed the Temple after a major fire that occurred in the year 1686, and installed a new idol and took full control of the Temple. The King of Travancore was thus responsible for setting up the Temple, in the form that it stands today, and it was the King who installed the new idol, and since then the management of the Temple, till the Covenant was signed, had always been with the Kings of Travancore.56. The assertions referred to above were not denied or traversed. As a matter of fact, the stand in the affidavits filed on behalf of the State in the Courts below, accepts the position of the erstwhile royal family vis-à-vis the Temple and Sri Padmanabhaswamy.57. Leaving aside the issue of ownership as such status is not claimed by the appellant No.1 or any of the family members who have intervened, the fact remains that it is well accepted that the management of the Temple had all along been in the hands of the ruling family or the Travancore Palace. As stated by the State, that has been the traditional and customary belief. Such management has spanned, not for few years or decades, but dates back to centuries.59. The practices referred to in the earlier paragraph show that right from the conception of a child upto the death of any member of the erstwhile royal family, special prayers are offered and certain rituals are followed. Every male child born in the erstwhile royal family, is made Dasa of Sri Padmanabhaswamy while every female child is made Sevini through prescribed rituals. Special ceremonies are conducted at the time of Upanayanam of a male member and marriage of a female member of the erstwhile royal family. Even assuming that these practices are being or could possibly be followed by other families as well, in addition to these features, the facts that the Ruler is an obligatory participant in various temple rituals; that he has an Ekantha Darshan with Sri Padmanabhaswamy on all days in the morning hours where, except the Nambi, nobody else can remain present; that the Ruler has to take special permission whenever he leaves the town; and that whenever the deity is taken out in procession, the Ruler leads the procession with the sword drawn out, along with the heir apparent, establish the special relationship that the erstwhile royal family in general and the Ruler in particular, have always had with Sri Padmanabhaswamy. The ceremony of Dedication undertaken by the then ruler in 1750 A.D. bears testimony to such relationship as well as the deep devotion and sense of complete surrender before Sri Padmanabhaswamy. The Thrippati Danam, the translation of which is set out in paragraph 5, shows that all the lands and functions together with all rights and dignities, positions of honour and all other possessions that the royal family was enjoying hitherto before, were dedicated to Sri Padmanabhaswamy. Even the royal sword was placed with utmost reverence on the Ottakkal Mandapam leading to the Sanctum, which the King got back from the high priest. Every further acquisition by the King was always surrendered to Sri Padmanabhaswamy. The King and his successors thus ruled and conducted themselves as Padmanabhadasas and agents of Sri Padmanabhaswamy.60. Tested on any parameter, such as historical accounts, popular and customary beliefs, certain practices connected with the rituals and affairs of the Temple that mandatorily require the presence and participation of the Ruler, deep involvement of the members of ruling family and their connection with the Temple and Sri Padmanabhaswamy at various stages of their lives, The Thrippati Danam and its significance, and long recognised and accepted fact that the management of the Temple had always been with the Ruler, lead us to conclude that for centuries, the Temple had been under the exclusive management of successive Rulers from the ruling family of Travancore and that the Rulers of Travancore, till the signing of the Covenant, were in the capacity as Managers or Shebaits of the Temple.61. The Travancore Interim Constitution Act, 1123, which came into force on 24.03.1948 i.e. before the Covenant was entered into, is also a factor that points in the direction of the aforesaid conclusion. In terms of this Act, all matters connected with Sri Pandaravaka (which expression admittedly referred to the Temple and the extensive lands belonging to Sri Padmanabhaswamy) as well as Devaswoms and Hindu Religious Endowments were stated to be under the exclusive control and supervision of the Ruler of Travancore. This Act by itself does not determine the status of the Ruler of Travancore with respect to Sri Pandaravaka and the Dewaswoms and Hindu Religious Endowments in Travancore, but is indicative of the requisite intent on part of the Ruler of Travancore to retain to himself the matters concerning administration and management of Sri Pandaravaka and Dewaswoms and Hindu Religious Endowments.this Court in Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and others (1964) 1 SCR 561 to submit that mere right to manage the debutter property when no emoluments were being drawn by the Manager was not found to be protected under Articles 19(1)(f) and 31(2) of the Constitution of India by a Bench of five Judges of this Court.This Court, speaking through Gajendragadkar, J. (as the learned Chief Justice then was) had observed:-The temple of Shrinathji at Nathdwara holds a very high place among the Hindu temples in this country and is looked upon with great reverence by the Hindus in general and the Vaishnav followers of Vallabha in particular. As in the case of other ancient revered Hindu temples, so in the case of the Shrinathji temple at Nathdwara, mythology has woven an attractive web about the genesis of its construction at Nathdwara. Part of it may be history and part may be fiction, but the story is handed down from generation to generation of devotees and is believed by all of them to be true.… … …The question as to whether a Hindu temple is private or public has often been considered by judicial decision. A temple belonging to a family which is a private temple is not unknown to Hindu law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple founded by him may attract devotees in large numbers and the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case, the temple would clearly be a public temple. Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of the members of the public in the Darshan in the temple and in the daily Acts of worship or in the celebration of festival occasions may be a very important factor to consider in determining the character of the temple….…..If the temple is a public temple, under Hindu Law the idol of Shrinathji is a juridical person and so, the ownership of the temple and all its endowments including offerings made before the idol constitute the property of the idol….… … …That takes us to the question as the nature and extent of the Tilkayats rights in regard to the temple property. It is clear that the Tilkayat never used any income from the property of the temple for his personal needs or private purpose. It is true that the learned Attorney General suggested that this consistent course of conduct spreading over a large number of years was the result of what he described as self-abnegation on the part of the tilkayats from generation to generation and from Tilkayats point of view, it can be so regarded because the Tilkayat thought and claimed that the temple and his properties together constituted his private property. But once we reach the conclusion that the temple is a public temple and the properties belonging to it are the properties of the temple over which the Tilkayat has no title or right, we will have to take into account the fact that during the long course of the management of this temple, the Tilkayat has never claimed any proprietary interest to any part of the usufrcut of the properties of the temple for his private personal needs, and so, that proprietary interest of which Mr. Ameer Ali spoke in dealing with the position of the Mahant and the Shebait and to which this Court referred in the case of commissioner, Hindu Religious endowments, Madras 42 is lacking in the present case. What the Tilkayat can claim is merely the right to manage the property, to create lease in respect of the properties in a reasonable manner and the theoretical right to alienate the property for the purpose of the temple; and be it noted that these rights could be exercised by the Tilkayat under the absolute and strict supervision of the Darbar of Udaipur. Now, the right to manage the property belonging to the temple, or the right to create a lease of the property on behalf of the temple, or the right to alienate the property for the purpose of the temple under the supervision of the Darbar cannot, in our opinion, be equated with the totality of the powers generally possessed by the Mahant or even the Shebait, and so, we are not prepared to hold that having regard to the character and extent of the rights which can be legitimately claimed by the Tilkayat even on the basis that he was a Mahant governed by the terms of the Firman, amount to a right to property under Article 19(1)(f) or constitute property under Article 31(2).Besides, we may add that even if it was held that these rights constituted a right to hold property their regulation by the relevant provisions of the Act would undoubtedly be protected by Art. 19(5). The temple is a public temple and what the legislature has purported to do is to regulate the administration of the properties of the temple by the Board of which the Tilkayat is and has to be a member. Having regard to the large estate owned by the Tilkayat and having regard to the very wide extent of the offerings made to the temple by millions of devotees from day to day; the legislature was clearly justified in providing for proper administration of the properties of the temple. The restrictions imposed by the Act must, therefore, be treated as reasonable and in the interests of the general public.71. In the aforesaid case, this Court was called upon to consider the matter in the context of challenge to the Nathadwara Temple Act, 1959 (Rajasthan Act 13 of 1959), inter alia, on the grounds that said Act violated the rights guaranteed under Articles 19(1)(f), 25(1), 26 (b) & (c) and 31(2) of the Constitution. The Act under challenge, enacted by the State, had sought to change the management which was earlier in the hands of the Tilkayat. On facts, it was noticed that the petitioner therein was appointed as Tilkayat (Manager of the Temple) under a Firman issued by the Rana of Udaipur on December 31, 1934 which provided that the Udaipur Darbar had absolute right to supervise that the property dedicated to the shrine was used for legitimate purpose and to take any measures for the management of the shrine. It was held by this Court that said Firman was law by which the affairs of said temple and succession to the office of the Tilkayat were governed after its issue. This Court thereafter held:-Having regard to the unambiguous and emphatic words used in clause 1 of the Firman and having regard to other drastic provisions contained in its remaining clauses, we are inclined to think that this Firman made the Tilkayat for the time being a Custodian, Manager and Trustee, and nothing more. As a Custodian or Manager, he had the right to manage the properties of the temple, subject, of course, to the overall supervision of the Darbar, the right of the Darbar in that behalf being absolute. He was also a Trustee of the said property and the word trustee in the context must mean trustee in the technical legal sense. In other words, it is not open to the Tilkayat to claim that he has rights of a Mahant or a Shebait; his rights are now defined and he cannot claim any higher rights after the Firman was issued.In the backdrop of the finding that the Tilkayat could not claim rights of a Mahant or a Shebait, the challenge on the grounds that said Act violated the rights under the Constitution was negated.On the other hand, after considering the relevant decisions on the point, in Angurbala Mullick AIR 1951 SC 293 : (1951) SCR 1125 , this Court had very clearly observed, that even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the debutter property which partially has the character of a proprietary right. In the decision of a Bench of seven Judges in Shirur Mutt Case 42 the decision in Angurbala Mullick AIR 1951 SC 293 : (1951) SCR 1125 was referred to with approval. In the recent decision of the Constitution Bench in M. Siddiq (Ram Janmabhumi Temple Case) (2020) 1 SCC 1 , the concerned portion from Angurbala Mullick AIR 1951 SC 293 : (1951) SCR 1125 was also quoted in paragraph 434.In the premises, in our view, mere factum that no emoluments are attached to the office of the Shebait would not make any difference to the character of the right and interest of the Shebait. Though this conclusion is based on the decisions referred to above, reference may additionally be made to Para 5.5 of the Book titled The Hindu Law of Religious Endowments and Charitable Trusts, 4 th Edition edited by Hon. P.B. Gajendragadkar, former Chief Justice of India, which points in the same direction.72. The principles that emerge from the long line of decisions referred to in the preceding paragraphs can thus be summed up:-(i) According to Hindu law, when the worship of a thakoor has been founded, the Shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution. (Gossamee Sree Greedharreejee vs. Rumanlolljee Gossamee 16 M.I.A.137 : (1889) L.R. 16 I.A. 137 )(ii) Unless the founder has disposed of the Shebaitship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, Shebaitship like any other species of heritable property follows the line of inheritance from the founder. (Angurbala Mullick vs. Debabrata Mullick AIR 1951 SC 293 : (1951) SCR 1125 )(iii) The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debutter, his position is analogous to that of a trustee; yet, he is not precisely in the position of a trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the shebait. (Profulla Chorone Requitte v. Satya Chorone Requitte (1979) 3 SCC 409 )(iv) Shebaitship in its true legal conception involves two ideas: The ministrant of the deity and its manager; it is not a bare office but an office together with certain rights attached to it. (Monohar Mukherjee vs. Bhupendra Nath Mukherjee and Ors. I.L.R.(1933) 60 Cal. 452 )(v) The effect of the decisions in Ganesh vs. Lal Behary (1935-36) 63 I.A. 448 and Bhaba Tarini Debi vs. Asha Lata Debi AIR 1943 PC 89 : (1943) ILR 2 P.C. 137 as the Privy Council pointed out in the latter case, was to emphasise the proprietary element in the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. (The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) SCR 1005 )(vi) It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami AIR 1922 PC 123 : 48 I.A. 302 that the relation of a Shebait in regard to debutter property is not that of a trustee to trust property under the English law. (Angurbala Mullick vs. Debabrata Mullick AIR 1951 SC 293 : (1951) SCR 1125 )(vii) In a Hindu religious endowment the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the Shebait or Mahant is a mere manager. (Angurbala Mullick vs. Debabrata Mullick AIR 1951 SC 293 : (1951) SCR 1125 )(viii) In the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. (The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) SCR 1005 )(ix) Even where no emoluments are attached to the office of the Shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of Shebait both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests Shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. (Angurbala Mullick vs. Debabrata Mullick AIR 1951 SC 293 : (1951) SCR 1125 )(x) Succession to Mahantship of a Math or religious institutions is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. (Sital Das vs. Sant Ram and others AIR 1954 SC 606 )(xi) The rule of custom should prevail in all cases and if any aberrations have to be corrected such correction must take us in the direction of re-establishing the rule of custom. (His Holiness Digya Darshan Rajendra Ram Doss v. Devendra Doss (1973) 1 SCC 14 )(xii) It is not open to the Court to lay down a new rule of succession or to alter the rule of succession completely. (His Holiness Digya Darshan Rajendra Ram Doss v. Devendra Doss (1973) 1 SCC 14 )(xiii) In the absence of an expressly appointed or identified Shebait, the law has ensured the protection of the properties of the idol by the recognition of a de facto Shebait. (M. Siddiq through LRs vs. Mahant Suresh Das and others (Ram Janmabhumi Temple Case) (2020) 1 SCC 1 . 73. As laid down by this Court, when the idol is installed and the temple is constructed or an endowment is founded, the shebaitship is vested in the founder and unless the founder himself has disposed of the shebaitship in a particular manner or there is some usage or custom or circumstances showing a different mode of devolution, the shebaitship like any other species of heritable property follows the line of inheritance from the founder; and it is not open to the Court to lay down a new rule of succession or alter the rule of succession. It has also been laid down that the shebaitship has the elements of office and property, of duties and personal interest blended together and they invest the office of the shebait with the character of proprietary right. It has further been laid down that the shebait is the custodian of the idol, its earthly spokesman and the human ministrant; is entitled to deal with the temporal affairs and to manage the property of the idol; and even where no emoluments are attached to the office of the shebait, he has the right or interest in the endowed property which has the characteristics of a proprietary right.If the instant case is considered on the touchstone of these settled principles, it is clear that after the major fire that occurred in the year 1686, the Temple was reconstructed and a new idol was installed by the King of Travancore Shri Marthand Varma and since then right upto the day the Covenant was signed, the management of the Temple had always been with the Kings of Travancore. The shebaitship or the managership of the Temple passed on to the succeeding Kings, coming from the royal family of Travancore. This chain was unbroken till the then Ruler of Travancore signed the Covenant in May 1949.It may be noted here that on 10.08.1947 a proclamation was issued by the Ruler declaring that in matters of succession to the Rulership and to the throne and for all other purposes, the royal family was governed by the Marumakkathayam law, as modified by the custom and usage of the royal family. In a matter raising issues of succession to certain properties of the Ruler of Travancore, this Court in Revathinnal Balagopala Varma 13 had found that the devolution in the royal family was from Ruler to Ruler. The shebaitship of the Temple had also passed from Ruler to Ruler consistent with the principles of succession otherwise applicable to the royal family.74. We must thus conclude that as on the day when the Covenant was entered into by the Ruler of the Covenanting State of Travancore, apart from other incidents which normally follow the rulership, he was holding the office of Shebait of the Temple and represented a continuous and unbroken line of successive Shebaits traced from the original founder; and being a Shebait of the Temple, he was having all the rights and interest as laid down by decisions referred to hereinabove.77. Sub-Article b of Article VIII used the expression now vested in trust in the Ruler of the Covenanting State of Travancore and thus acknowledged the factum that the administration in respect of the Temple, Sri Pandaravaga properties and all other properties and funds of the Temple was already vested in the Ruler of Covenanting State of Travancore. Sub-Article b further contemplated that with effect from the appointed day, the administration of the Temple, Sri Pandaravaga properties and all other properties and funds of the Temple would be subject to the control and supervision of the Ruler of Travancore. This Sub-Article was the centre of debate and fulcrum of submissions by the learned counsel appearing for various parties.78. According to the Covenant, insofar as the transfer of sovereign power and all incidental aspects connected therewith were concerned, the Ruler of the Covenanting State of Travancore was involved at two stages. Under the first stage, the transfer was contemplated from him in his capacity as the Head of the Covenanting State of Travancore in favour of the United State and under the second stage as Rajpramukh of the United State he was obliged to execute an Instrument of Accession in terms of Article IX. On and with effect from the appointed day in terms of the Covenant, his role as the Head of the State of Travancore came to an end and he became the Rajpramukh of the United State, in whom certain powers and rights got vested by virtue of Articles VI, VII and X. Theoretically, as Rajpramukh, he could as well be vested with powers of suspension, remission or commutation of death sentences in respect of the entire area of the United State but the intent was to retain such powers in the erstwhile Ruler of Cochin State, who had no role in the new dispensation with respect to the United State and for this reason, Article XXI used the expression the Rulers of Travancore and Cochin. The fact that this was a departure and as an exception to the general mechanism is evident from the expression Notwithstanding anything contained in the preceding provisions of this Covenant . Therefore, despite generality of the earlier Articles of the Covenant, only with respect to matters specified in Article XXI, the Ruler of Travancore continued to have the powers which he was enjoying as the Head of the State of Travancore before the Covenant came into effect. Thus, wherever the Covenant wanted him to continue to exercise certain powers which as Head of the State of Travancore had resided or vested in him, the Covenant made an express exception and stipulated so.A) As discussed above, the only place in the Covenant where the person who signed as the Ruler of the Covenanting State would continue to enjoy his erstwhile powers as the Head of that Covenanting State, was Article XXI. The references as the Ruler of the Covenanting State and as the Ruler of Travancore or as the Ruler of Cochin in rest of the Articles, were only by way of reference to the person concerned, and not by way of reference to or because of his official capacity as the Ruler. This gets fortified by proviso to Sub-Article d of Article VIII, in terms of which the Ruler of Cochin would continue to exercise regulation and control with respect to rituals and ceremonies in certain temples. Upon the Covenant coming into effect, he had lost his capacity as the Head of the erstwhile State of Cochin. Thus, the retention of the powers under said proviso in him was not because he had any official status as Head of the State after the appointed day in terms of the Covenant but only with a view to describe and locate the person concerned. A person answering the description in said proviso would continue to exercise such power. Similar thought can, therefore, be validly entertained that the description in the latter part of Sub-Article b of Article VIII was only to refer to or locate the person.B) Furthermore, the historical background and the association of the royal family with the Temple and the nature of Shebaitship held by a successive line of Rulers from time to time, were such that the Covenant designedly let the management of the affairs of the Temple – with the royal family, and in the hands of the Ruler of Travancore, principally because his official capacity or status as the erstwhile Head of the State apparently had nothing to do with the capacity as Shebait of the Temple.As discussed in the earlier segment, the Shebaitship was always in the royal family and the Ruler represented the unbroken line of Shebaits. Not only the excerpts from the book written by Mr. V.P. Menon indicate the deep sense of attachment and devotion of the ruling family to the Temple and Sri Padmanabhaswamy, but some reflection in that behalf is also to be noticed in the White Paper on the Indian States which was initially prepared in July 1948 and updated in March 1950 by Government of India, Ministry of States. It dealt with the United State of Travancore and Cochin in paragraphs 139 to 145. Paragraphs 141 and 142 dealt with Devaswoms-Hindu Temples and properties attached to them in the two States including that of the temple of Sri Padmanabhaswamy as under:-141. One of the special features of the Covenant is the arrangement in respect of Devaswoms – Hindu temples – and property attached to them in the two States including the temple of Shri Padmanabhaswami the tutelary deity of the ruling family of Travavancore. In Travancore alone, apart from this important shrine, on the maintenance of which the State was spending over Rs.1 million per annum, there are 348 major Devaswoms and 1123 minor Devaswoms. Large revenues are derived by the State from the properties which were attached to these Devaswoms and provision was made by the State for the maintenance of Devaswoms, from time to time, at varying figures. Hindu opinion in the State was unanimous that not only should the continued payment of the existing allotments for the maintenance of Devaswoms be guaranteed but that adequate compensation should also be given in respect of the properties of the Devaswoms taken over by the State since 1912, and the profits derived from them. The annual contribution thus claimed ranged from rupees ten to twenty millions. The Covenant now provides for a fixed contribution of Rs.5.1 millions for the maintenance of Devaswoms in Travancore out of which a sum of Rs.600,000 is to be contributed towards the maintenance of the Shri Padmanabhaswami temple.142. The most important departure from the past practice, which the provisions of the Covenant regarding the Devaswoms involve, is that, except in the case of Shri Padmanabhaswami temple, in the management of which the Ruler will be assisted by an Advisory Committee, the administration of Devaswoms will vest in two Boards to be set up in these States on which not only the orthodox Hindus but the Harijans also will be represented. This introduces a far-reaching temple reform in that under the arrangement prescribed in the Covenant the Harijans will secure a share both in the control of the temples and appointments in the Devaswoms Department, a position hitherto denied to them.It may be mentioned here that said White Paper generally gave account of all such Covenants entered into by various Rulers of the erstwhile Indian States and except the Temple of Sri Padmanabhaswamy which was specifically dealt with in the Covenant that we are presently concerned with, no other temple in any such Indian State was so specifically and separately dealt with. In that sense, Article VIII of the Covenant has certain unique features.In terms of aforestated Article VII (2) the vesting was in favour of the Raj Pramukh, and not in favour of any concerned Ruler. The Raj Pramukh, in terms of Article III of said Covenant was to be elected by the Council of Rulers. Consequently, though Gangajali Fund was constituted by the then Maharaja of Gwalior, the control was not vested in the Ruler of Gwalior, but in the Raj Pramukh. This also meant that the vesting was in his official capacity as Raj Pramukh, who could be any other Ruler, and not strictly the Ruler of Gwalior.Article VII (2) of said Covenant and the consequential legislation are clear indication that even where a Trust was constituted for certain charitable purposes by the then Maharaja of Gwalior, the administration of such Trust was not vested in the Ruler of Gwalior. On the other hand, the Trust, in terms of the Covenant itself, was directed to be vested in the Raj Pramukh in his official capacity.In comparison, the vesting of administration of the Temple in the instant case was not only acknowledged by the Covenant to be in trust with the Ruler of the Covenanting State of Travancore but such administration was to continue subject to the control and supervision of the Ruler of Travancore even after the Covenant. This illustration further emphasizes that the control and supervision of the Ruler of Travancore was not in any official capacity.D) It is also pertinent to note here that other Devaswoms and Endowments in the erstwhile State of Travancore also used to be under the control of the erstwhile Ruler of Travancore. Going by the Travancore Interim Constitution Act which is referred to in detail in paragraph 10 hereinabove, though such control was to be retained by the ruling family, the Covenant expressed clearly to the contrary. Sub-Article c of Article VIII acknowledged that administration with respect to said other Devaswoms and Endowments and other properties was earlier under the management of the Ruler of the Covenanting State of Travancore. It, however, stated that with effect from the appointed day in terms of the Covenant, such management would now vest in Travancore Devaswom Board. This part also finds mention in the relevant paragraphs of the White Paper as quoted above.Thus, wherever the official capacity of the Head of the State was responsible for enabling the Ruler to be in charge of the management or administration, upon ceasing to have such capacity, the erstwhile Ruler would have nothing to do with the management of such other Devaswoms or Endowments. In contrast, the case with respect to the Temple and other properties referred to in Sub-Article b stands on a completely different footing.In the premises, it must be held that the expression the Ruler of Travancore used in the latter part of Sub-Article b of Article VIII was only by way of reference and the purport of said Sub-Article was not to invest the said authority and power because he was the Ruler or enjoyed and represented any official status.The survey of the concerned Articles of the Covenant as set out in paragraph 11 hereinabove shows that wherever special attributes or rights were designed to be conferred upon and restricted to the present Ruler, the Covenant was quite specific. Articles IV and XIV are clear instances in that behalf. On the other hand, whenever the person, who as the Ruler, had signed the Covenant was to be referred, the expressions used in the Covenant had been the Ruler of the Covenanting State or the Ruler of Travancore. These expressions were only to identify the person who was the Ruler as stated earlier. Thus, the rights such as the entitlements to Privy Purses and the ownership, use and enjoyment of private properties and so also to personal rights, privileges, titles and dignities were concerned, they were assured to the Ruler of the Covenanting State . In addition, certain rights were also granted to the members of the family and succession to the Gaddi, personal rights and privileges was expressly assured. Whether those rights or entitlements were intended to be enjoyed by the successor to the person who signed the Covenant, would depend upon the nature and content of such right or entitlement. In so far as the right with respect to Privy Purse payable to the Ruler of Travancore was concerned, it was expressly limited or confined to the present Ruler, and obviously no successor could claim such entitlement. But rest of the incidents or entitlements referred to in said Articles were without such restriction. Additionally, once succession to the Gaddi of each Covenanting State and to the personal rights and privileges etc. was guaranteed in accordance with law and custom by Article XVII, these incidents were designed to be available for enjoyment by the succeeding generations or successors according to law and custom. If the matter is considered purely from the perspective of Shebaitship of the Temple, or the right of administration referred to in the latter part of Sub- Article b of Article VIII, going by the general law of Shebaitship as discussed in the earlier segment, and the succession according to law and custom, every successor to the Ruler who signed the Covenant would be entitled to such right. There is nothing in any of the Articles which even purports to limit or restrict such devolution.81. In the circumstances, it must be concluded that Article VIII of the Covenant not only acknowledged and accepted the factum that the administration with respect to the Temple, its properties, as well as with respect to Pandaravaga properties, had already vested in the Ruler of the Covenanting State of Travancore, but the said Article expressly continued the same status and stipulated that such administration shall be conducted subject to the supervision and control of the Ruler of Travancore, the meaning of which expression has already been dealt with and deduced earlier.83. Soon thereafter, the TC Act came into force. The relevant provisions of the TC Act have already been extracted earlier. Chapter III of the TC Act specifically dealt with Sree Padmanabhaswamy Temple and matters pertaining to the administration of the Temple. Said Chapter III of the TC Act is consistent with the latter part of Sub-Article b of Article VIII of the Covenant and stipulates inter alia that the administration of the Temple, Sri Pandaravaga properties and all other properties and funds of the Temple vested in trust in the Ruler of Travancore and the sum of Rs.6 lakhs contributed in terms of Sub- Section 1 of Section 18 of the TC Act shall be conducted, subject to the control and supervision of the Ruler of Travancore by an Executive Officer appointed by him. Said Chapter III did not confer any right or benefit for the first time, where none existed earlier but gave statutory recognition to what was acknowledged and accepted in the latter part of Sub-Article b of Article VIII of the Covenant to be the continuing status. Section 20 of the TC Act then deals with the constitution of Sree Padmanabhaswamy Temple Committee, which is also in tune with said Article VIII of the Covenant.Two features must be noticed at this stage. Insofar as incorporated or unincorporated Devaswoms are concerned, consistent with the stipulations of Sub-Article c of Article VIII of the Covenant, the control and administration in respect of such Devaswoms is vested in Travancore Devaswom Board as stated in Section 15 of the TC Act. There are certain machinery provisions which deal with the manner in which the affairs of the Devaswom Board would be conducted, with which we are not presently concerned. Secondly, Sub- Section 2 of Section 62 of the TC Act, in tune with proviso to Sub-Article d of Article VIII of the Covenant provides that despite the vesting of administration in Cochin Devaswom Board, the regulation and control of rituals and ceremonies in the temples referred to therein would continue to be exercised by the Ruler of Cochin. Thus, all material and relevant facets emanating from various provisions of the Covenant pertaining to the administration of the Temple, Sri Pandaravaga properties and all other properties of the Temple, so also, the management and control of all other Devaswoms and religious endowments were dealt with by the TC Act in a manner which was completely consistent with the relevant provisions contained in the Covenant.84. As stated in paragraph 16 hereinabove, orders passed by the President of India that Rulers of Indian States had ceased to be recognized as Rulers of respective Indian States were under challenge in Madhav Rao Scinda 12 , in which case the issues regarding the impact of Articles 291, 362, 363 and 366(22) of the Constitution as well as the effect of legislative measures brought in pursuance of the provisions of Article 362 were considered by this Court.85. Hidayatulla, C.J., found Article 291 to be a special provision for the source of payment of Privy Purses and the same thought was expressed in paragraph 126 by the majority Judgment which also found the structure of Article 362 to be different. Unlike Article 291, which itself was the source for payment of Privy Purses, Article 362 stipulated that due regard shall be had to the guarantees or assurances given under any covenant or agreement while exercising legislative or executive power. Thus, the source for enjoyment of personal rights, privileges and dignities referred to in Article 362 would be in the statutory provisions enacted in terms of the obligation spelt out in Article 362. To the extent any legislative measure was undertaken, or executive power was exercised, with due regard to the guarantees or assurances given under any covenant or agreement, the source would be in such measure or exercise.86. Insofar as the present segment is concerned, it must, therefore, be concluded that the relevant provisions of the Constitution of India as well as that of the TC Act did not, in any way, upset or abridge the status enjoyed by the Ruler of Travancore as Shebait of the Temple and also did not, in any manner, adversely impact the right of administration vested in the Ruler of Travancore. As a matter of fact, the relevant provisions of the TC Act afforded statutory flavour to the status contemplated by Article VIII of the Covenant.D] Effect of the Constitution (Twenty Sixth Amendment) Act, 197187. The Statement of Objects and Reasons as well as the nature of this Constitutional Amendment; the newly incorporated Article 363A and the amended definition of Ruler in Article 366(22) have been set out in paragraph 17 hereinabove. As the Statement of Objects and Reasons indicated, the concept of rulership with Privy Purses and special privileges was found to be incompatible with egalitarian social order and as such it was decided to terminate the Privy Purses and privileges of the Rulers so also it was decided to terminate expressly the recognition already granted to such Rulers and to abolish Privy Purses and extinguish all rights and obligations in respect of Privy Purses. This Constitutional Amendment deleted Articles 291 and 362; and inserted Article 363A which now expressly stipulates inter alia that any person who was recognized to be the Ruler of an Indian State or his Successor, shall, cease to be recognized, as such Ruler or Successor, and all rights, liabilities and obligations in respect of Privy Purses stand extinguished. Article 366(22) was also accordingly amended and in terms of the amended definition, Ruler now means, inter alia, the person who was recognized as the Ruler of an Indian State or as a successor to such Ruler, before the commencement of said Constitutional Amendment. With the deletion of Article 291, the rights, liabilities and obligations with respect to Privy Purses stood extinguished. The guiding principles emanating from Article 362 that in exercise of legislative or executive power, due regard shall be had to the guarantee or assurance given in any Covenant or agreement referred to in Article 291 also ceased to exist.Thus, unlike Privy Purses, the termination of which was intended to be immediate and therefore the source for Privy Purses, namely, Article 291 itself was deleted, the deletion of Article 362 by itself would not result in cessation of every privilege or personal right with respect to which due regard was had while exercising legislative power in terms of Article 362 before its deletion. The source being in the statutory enactments, despite deletion of Article 362, if the concerned legislations continue to remain in operation, the personal rights or privileges could still be enjoyed. That is precisely why, on the strength of various statutory provisions certain benefits in the form of personal rights or privileges are still available. It is for the concerned legislatures to take appropriate steps in accordance with law, either to terminate the effect and operation of extension of such benefits or allow them to operate or lessen the extent and cause gradual changes as was sought to be undertaken by 1972 Act.90. Thus, if the provisions of the TC Act to the extent it enacted Chapter III of Part I dealing with Sree Padmanabhaswamy Temple and related provisions are taken to be an exercise by the concerned Legislature with due regard to the assurances and guarantees in covenant or agreements in terms of Article 362 as it existed then even with deletion of Article 362 the concerned provisions would still be operative so long as appropriate steps are not taken by the concerned Legislature.91. As is evident from the White Paper referred to hereinabove, the assurances and guarantees given in the covenants or agreements entered into with various Rulers normally had four elements; i) that certain sums shall be payable to the Rulers by way of Privy Purses; ii) that certain properties mentioned as private properties of the Ruler would vest in the Ruler in his personal capacity; iii) that succession to the Gaddi would go strictly by the prevalent law and custom; and iv) that personal rights, privileges and dignities enjoyed by the Rulers and in some cases by the members of the family of the Ruler, would continue to be available.92. Out of the aforesaid four elements, the elements (i) and (iv) were covered by Articles 291 and 362 as they stood before being deleted. The effect of such deletion has been discussed and dealt with. The elements (ii) and (iii) are normal incidents which were not within the scope of said Articles 291 and 362. Despite the Constitution (Twenty Sixth Amendment) Act, 1971, the private properties of the Ruler would continue to be available for normal succession and devolution in accordance with the law and custom. Though concepts such as Ruler or Rulership have ceased to operate, succession to the Gaddi as an incident may still operate. For instance, there could be a sword or any other ceremonial weapon, or a sarpech, or heirloom jewellery, which must go by rule of primogeniture, as against the normal way of succession with regard to other personal properties. All such incidents have not been terminated. The clear example is in clause (iv) of sub-section (1) of Section 5 of the Wealth Tax Act, 1957 which uses the expression jewellery in the possession of any Ruler, not being his personal property which had been recognized as his heirloom. Such items or properties which fall in or are connected strictly with element (iii), may descend along with succession to the Gaddi and by very nature must remain impartible. On the other hand, if normal principles of succession are applied, at any given level of succession, such items or properties recognized as heirloom may be required to be shared amongst more than one person and would therefore cease to be impartible.93. These four elements were covered by Articles XIV, XV, XVII and XVI respectively in the Covenant in the present case. However, apart from the said four assurances, the Covenant also dealt with an additional and important aspect in Article VIII(b). It accepted and acknowledged that the administration with respect to the Temple, Sri Pandaravaga properties, and the property of the Temple which was also vested in the Ruler of the Covenanting State would continue to be conducted in the manner stipulated therein, subject to the control and supervision of the Ruler of Travancore. The effect of such Article and the fact that such vesting was not in the capacity as Ruler has already been dealt with. It has also been concluded that the expression The Ruler of Travancore was only to locate and describe the person who would be in control and supervision of the administration.94. In the premises, we must conclude that the Constitution (Twenty Sixth Amendment) Act, 1971 did not in any way impact or affect the administration of the Temple, Sri Pandaravaga properties and the properties of the Temple, which continued to be under the control and supervision of the Ruler of Travancore.E] Effect of the death of the person who had signed the Covenant as the Ruler of the Covenanting State of Travancore95. As stated in paragraph 21 hereinabove, Sree Chithira Thirunal Balarama Varma who had signed the Covenant as the Ruler of the Covenanting State of Travancore, passed away on 19.07.1991.97. The discussion in the first and second segments hereinbefore have led us to conclude that as on the day when the Covenant became effective, the Ruler of the Covenanting State of Travancore, was holding the office of Shebait of the Temple, which was not in his official capacity as the Ruler; and that the effect of Sub Article (b) of Article VIII was not to invest any new authority and power in him for the first time because of his official status, but an acknowledgement of the existing authority and power already vested in him. It has also been concluded by us that the expression Ruler of Travancore in the Covenant and in the TC Act was only to identify the person, and that the official status of the Ruler of Travancore had no relation with such administration.The principles emanating from various decisions which were considered in the first segment have been culled out by us in para 72 hereinabove. If according to the settled principles, the Shebaitship is like any other heritable property which would devolve in accordance with custom or usage, and that the rule of custom must prevail in all cases, even after the death of the erstwhile Ruler of Travancore in 1991, the Shebaitship of the Temple being unconnected with the official status of the person who signed the Covenant, must devolve by the applicable laws of succession and custom.The proclamation issued on 10.08.1947 as referred to in paragraph 8 hereinabove clearly states the applicable principles of succession. The decision of this Court in Revathiannal 13 is also to similar effect. Thus, going by concerned principles of succession and custom, the successor can easily be located.99. The definitions of Ruler in Articles 363 and 366(22) thus do not ipso facto have any application to the provisions of the TC Act, unless the TC Act expressly stipulates so or impliedly refers to such definitions either under Article 363 or under Article 366(22). With the deletion of Articles 291 and 362, the scope of definition in Article 366(22) to find a particular Ruler for conferral of advantages referred to in both the Articles, has ceased to have any significance. However, the concept of the Ruler and Rulership, as discussed hereinabove are still relevant insofar as certain legislations and provisions are concerned. Many of these legislations, normally define the expression themselves, or by reference incorporate the definition as given in Article 363; for example, Section 87B of the Code of Civil Procedure, 1908. No such provision was made in the TC Act. The question therefore, is whether the expression Ruler of Travancore as appearing in Chapter III of Part I of the TC Act is capable of being understood to include his successors according to custom.100. A perusal at Sections 15, 62 and Chapter III of Part I of the TC Act clearly shows that these provisions were put on the Statute Book having due regard to the Covenant. Since the source of these provisions lies in the Covenant, and there being no definition of Ruler of Travancore, or for that matter Ruler of Cochin, one has to consider the relevant Articles of the Covenant to assess or understand the significance of the said provisions of the TC Act. Sections 15, 62 and Chapter III of Part I of the TC Act were enacted principally to give effect to Article VIII and generally to give effect to the Covenant.101. In the earlier segments, we have already concluded that Article VIII had clearly used the expression now vested in trust in the Ruler while speaking about the administration of the Temple, Sri Pandaravaga properties, and the properties of the Temple. The Covenant thus, not only acknowledged such status, but in sub-Article b of Article VIII, intended to continue the status where such person would continue to exercise control and supervision over the administration of the Temple. This was in the backdrop of the long standing association of the ruling family with the Temple, and the Shebaitship held by the continuous line of Rulers. The expression Ruler of Travancore used in the provisions of the TC Act must therefore be understood in the same light. As held earlier, the Covenant never intended to restrict, or do away, with the right of administration already vested in the Ruler of Travancore, and such expression was not intended to be confined to the present incumbent, or the person who had signed as the Ruler of the Covenanting State of Travancore. Going by the normal incidents of Shebaitship including the heritability, the context in which the expression was used in Article VIII of the Covenant, and carried in the provisions of the TC Act, it must be held that such expression must include the successors to the person who had signed the Covenant.102. Apart from the Covenant, the expression Ruler of Travancore as used in Chapter III of Part I of the TC Act did not depend upon any other enactment or instrument to look for the successor to the Ruler of Travancore, nor is there any express or implied intendment to go by the definition of Ruler either under Article 363 or 366(22) of the Constitution. The Covenant speaks of succession, according to law and custom, and that is how the successor must be identified. As Hidayatullah, C.J., opined in paragraphs 53 and 72 (Quoted in paragraph 84 hereinabove) of his Judgment in Madhav Rao Jivaji Rao Scindia (1971) 1 SCC 85 decided on 15.12.1970 the definition in Article 366(22) as it then stood was merely a key to find a particular Ruler, and that the selection of a successor to the Ruler was required to be worked out under the Covenant. The method of selecting the successor under Article 366(22) as it then stood was not by way of any different formula or principle but was rooted in the concerned law and custom. That being the underlying principle as available from the Covenant, there would not be any difficulty in identifying the successor as and when the occasion arises.103. At the same time, if the submission that the expression Ruler of Travancore in the TC Act must be made dependent on the recognition, is accepted, it would lead to incalculable inconvenience and prejudice. First, it was never the intention of the Legislature to make such an expression dependent upon any recognition. Secondly, there is no power in the President of India, after the Constitution (Twenty Sixth Amendment) Act, 1971 to grant any such recognition. Thirdly, the consequence of such an interpretation would mean that the unbroken line of succession to the Shebaitship would stand terminated making the entire Chapter III of Part I of the TC Act meaningless and redundant. Consequently, the administration of the Temple, Sri Pandaravaga properties and the properties of the Temple would suffer immense prejudice. Section 15 of the Act which vested the rights, authority and jurisdiction in respect of Devaswoms and Hindu Religious Endowments in the Travancore Board is also inapplicable to Chapter III of Part I. This would result in a complete void. The Legislature could not be ascribed of such an intention. On the other hand, the Legislature must be taken to be well aware that the Shebaitship was heritable, and remained in the royal family for few centuries in an unbroken line of succession. It is for this reason, consistent with the termsof the Covenant, a special dispensation was made in Chapter III of Part I of the TC Act.104. It may be relevant to note that the State in two affidavits filed in the Suits as referred to hereinabove, has taken a clear stand that the Temple is managed by the Travancore Palace. These affidavits were filed by responsible officers of the State, well after the death of the then Ruler in 1991. The understanding on part of the State machinery, or the officials by itself can never be the determining criteria, but that is a relevant factor to be taken note of, as observed by this Court in National and Grindlays Bank Ltd. vs. Municipal Corporation of Greater, Bombay (1969) 1 SCC 541 para 5 and in Desh Bandhu Gupta and Co. and others vs. Delhi Stock Exchange Association Ltd. (1979) 4 SCC 565 para 9.105. In the instant case, since the Shebaitship had vested in the Ruler of Travancore, not in his official capacity, the normal incident of heritability must get attached to the office of such Shebaitship in accordance with governing principles of succession and custom. Therefore, when it comes to the matter concerning the administration of the Temple, Sri Pandavaraga properties and the properties of the Temple, the expression the Ruler of Travancore as appearing in Chapter III of Part I of TC Act must mean the successor in accordance with the prevalent law and custom. In the process one need not go to the definition of Ruler either under Article 366(22) or under Article 363 of the Constitution of India. Consistent with the principles that have been culled out in para 72 hereinabove, after the death of the person who was in control and supervision of the administration, the heritable interest must devolve in accordance with the customary rights.106. Further, unless and until the line of succession of the Shebaitship and in-charge of the administration, is completely extinct, there can be no question of escheat as observed by the High Court. In Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust v. Collector, Haridwar (2017) 16 SCC 418 , this Court had an occasion to consider the issue of escheat in the context of a Public Trust. In that case, after the death of one Mohanlal in whose name patta of the property was secured, the Collector had concluded that the property vested in the State Government by operation of law. Setting aside the decision of the High Court which had affirmed the conclusions of the Collector, this Court observed:-20. Section 29 of the Hindu Succession Act, 1956 has been invoked by the Collector. Section 29 provides as follows:29. Failure of heirs.—If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.Section 29 embodies the principle of escheat. The doctrine of escheat postulates that where an individual dies intestate and does not leave behind an heir who is qualified to succeed to the property, the property devolves on the Government. Though the property devolves on the Government in such an eventuality, yet the Government takes it subject to all its obligations and liabilities. The State in other words does not take the property (at SCC p. 113, para 12) as a rival or preferential heir of the deceased but as the lord paramount of the whole soil of the country , as held in State of Punjab v. Balwant Singh 1992 Supp (3) SCC 108 . This principle from Halsburys Laws of England 4 th Edn., Vol.17, Para 1439 was adopted by this Court while explaining the ambit of Section 29. Section 29 comes into operation only on there being a failure of heirs. Failure means a total absence of any heir to the person dying intestate. When a question of escheat arises, the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case. The law does not readily accept such a consequence. In State of Bihar v. Radha Krishna Singh (1983) 3 SCC 118 , a Bench of three Judges of this Court formulated the principle in the following observations:272. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the respondent-plaintiffs. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the22. In Rambir Das v. Kalyan Das (1997) 4 SCC 102 a Bench of two learned Judges of this Court dealt with a case of shebaitship. Citing the authority of Justice B.K. Mukherjeas celebrated Tagore Law Lectures with approval, this Court took note of the position of law elucidated in the lectures: (Rambir Das case (1997) 4 SCC 102 , SCC p. 105, para 3)3. … As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founders heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, Shebaitship reverts to the family of the founder.On the question of escheat, B.K. Mukherjea, J. observes thus: (SCC p. 106, para 3)3. … As there is always an ultimate reversion to the founder or his heirs, in case the line of shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founders properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a shebait for the debutter property. It cannot be said that the State receiving a dedicated property by escheat can put an end to the trust and treat it as secular property.In other words, even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the State, the State which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property. In fact, we may note, Section 29 expressly stipulates that the State shall take the property subject to all the obligations and liabilities to which an heir would have been subject.23. In deciding this case, this Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution. This principle was enunciated over six decades ago by this Court in Sital Das v. Sant Ram AIR 1954 SC 606 , rendered by B.K. Mukherjea, J., speaking for a Bench of four Judges: (AIR p. 609, para 9)9. In the appeal before us the contentions raised by the parties primarily centre round the point as to whether after the death of Kishore Das, the plaintiff or Defendant 3 acquired the rights of Mahant in regard to the Thakardwara in dispute. The law is well settled that succession to Mahantship of a Math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. As the Judicial Committee laid down [Vide Genda Puri v. Chatar Puri 13 Ind App – page 105 (PC)(A), IA at p. 105] in one of the many cases on this point: (SCC OnLine; In determining who is entitled to succeed as Mohunt, the only law to be observed is to be found in the custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it. Mere infirmity of the title of the defendant, who is in possession, will not help the25. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. Escheat is a doctrine which recognises the State as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs. This principle is based on the norm that in a society governed by the Rule of Law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision. To allow administrative authorities of the State—including the Collector, as in the present case—to adjudicate upon matters of title involving civil disputes would be destructive of the Rule of Law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him to enter upon private disputes. In contrast, a civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute. In holding that the Collector acted without jurisdiction in the present case, it is not necessary for the Court to go as far as to validate the title which is claimed by the petitioner to the property. The Court is not called upon to decide whether the possession claimed by the Trust of over forty- five years is backed by a credible title. The essential point is that such an adjudicatory function could not have been arrogated to himself by the Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure, 1908.107. In the circumstances, we hold that the death of Sree Chithira Thirunal Balarama Varma who had signed the Covenant, would not in any way affect the Shebaitship of the Temple held by the royal family of Travancore; that after such death, the Shebaitship must devolve in accordance with the applicable law and custom upon his successor; that the expression Ruler of Travancore as appearing in Chapter III of Part I of the TC Act must include his natural successors according to law and custom; and that the Shebaitship did not lapse in favour of the State by principle of escheat.A) In Bala Shankar Maha Shanker Bhattjee and Others vs. Charity Commissioner, Gujarat State (1995) Supp 1 SCC 485 the basic issue was whether Kalika Mataji Temple was a public Trust. The High Court found, inter alia, that by Sanad No.19, Scindias in their capacity as sovereign Rulers had passed on their obligations in respect of the temple to the British Government by a treaty concluded between them in 1860. After considering various decisions on the point, the principles were noted by this Court as under: -19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temple is now well settled. In the case of former the beneficiaries are specific individuals; in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple; gift of properties by the public or grant by the ruler or Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple, it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the headman leaves the temple are not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference. | 1 | 68,000 | 13,242 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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in terms of Section 20 of the TC Act to advise the Ruler of Travancore. D) By Order dated 11.12.2013, Conservation and Restoration Committee was appointed for Structural Renovation and Restoration. E) Since the Executive Officer proceeded on leave, an Interim Administrative Committee was appointed vide Order dated 24.04.2014 for day to day functions relating to the Temple. F) By Orders dated 09.05.2017 and 04.07.2017, apart from reconstituting the Conservation Committee, a Selection Committee for Sreekovil was also appointed to select the suitable person having requisite knowledge. These Committees were constituted at the interim stage of the proceedings in this Court. 112. We may, at this stage, also refer to some of the Reports submitted by the Administrative Committee appointed by this Court:- i) In the Report dated 05.01.2018, it was reported that taking advantage of the fact that an ad hoc committee was at the helm of the affairs of the Temple, some of the occupants of the structures on East Nada, North Gate and Utsava Madom Building continued to be or were in illegal and unauthorized occupation and that requisite action to resume the possession of said structures from such occupants ought to be undertaken. ii) In the Report dated 01.01.2020, it was stated that from 04.01l.2019 to 20.12.2019, the offerings made by the devotees visiting the Temple, in the Kanikka amounted to Rs.5,68,96,260/- (Rupees Five Crores Sixty Eight Lakhs Ninety Six Thousand Two Hundred and Sixty Only). iii) The Report dated 27.05.2020, under the signature of the District Judge, referred to the earlier Resolution dated 13.06.2017 and the direction issued by this Court in its Order dated 04.07.2017 requesting the State to nominate a panel of three officers from the Indian Audit and Accounts Service (IA &AS) to oversee the audit and accounts of the Temple and submit quarterly reports to the Administrative Committee. The Report stated:- I may also report that the Administrative Committee is perfectly in the darkness regarding the financial position and accounts of the Temple. Different District Judges discharged duties as Chairmen of the Administrative Committee during different periods since the inception of the Committee as per the directions of the Honble Supreme Court. So far, the respective Executive Officers, in charge of the financial matters of the Temple, have not produced either the budget proposals or the statement of accounts before the Administrative Committee. … … … The Executive Officer informed me that as the Principal Accountant General raised queries on the remuneration of the serving IAAS Officers and the State Government was not in a position to meet the expenses, the direction of the Honble Supreme Court could not be complied with. Subsequently, on 18.09.2017, the Administrative Committee resolved the following:- (i) The service of an IA & AS Officer is required to oversee the audit conducted by the Internal Auditor and Statutory Auditor. (ii) The service of a serving IA & AS Officer is required on foreign service terms. (iii) In addition, the services of two non IA & AS Officers, who are in service, is also required on foreign service terms to assist the IA & AS Officer. The Committee also authorized the Executive Officer to take up the matter with the Government and to bring the developments to the notice of the Honble Supreme Court. So far, the directions of the Honble Supreme Court to appoint an IA & AS Officer to oversee the internal audit and statutory audit has not been complied with. Still the Committee is in darkness on the financial position and accounts of the Temple. 113. The provisions of the TC Act with respect to the administration of the Temple are clear:- a) Under Section 18(2), the administration shall be conducted. Subject to the control and supervision of the Ruler of Travancore, by an Executive Officer appointed by him. b) Sree Padmanabhaswamy Temple Committee composed of three members nominated by the Ruler of Travancore in terms of Section 20 is to advise the Ruler of Travancore in the discharge of his functions. The Statute has thus vested the power of appointing the Executive Officer and of forming the Advisory Committee, in the Ruler of Travancore. In the Note, the appellants have stated:- (i) The Trustee shall delegate his powers of administration under Section 18(2) to the Administrative Committee which shall administer the Temple through an Executive Officer to be appointed by the Committee. (ii) On all policy matters, the Trustee shall be guided by the advice of the Advisory Committee. 114. Having given our anxious consideration to the rival suggestions, the composition of the Committees as suggested by the appellants deserves acceptance, especially in light of the conclusions arrived by us that the Managership or the Shebaitship of the Temple continues with the Family. As against the administration contemplated by Chapter III of Part I of the TC Act in the hands of the Ruler of Travancore in absolute terms, the course now suggested by the appellants is quite balanced. The Composition of the Administrative Committee as suggested is broad based and would not be loaded in favour or against the Trustee. However, considering the fact that the present interim Administrative Committee headed by the District Judge is in seisin for the last more than five years, and various District Judges as Chairpersons of the Committee conducted themselves quite well, in our view, a minor change in the Administrative Committee suggested by the appellants in their Note is called for. Instead of a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the Administrative Committee, in the interest of justice, the District Judge, Thiruvananthapuram shall be the Chairperson of the Administrative Committee. Needless to say that the present Chairperson of the Interim Administrative Committee shall continue to be the Chairperson so long as he holds the post of the District Judge, Thiruvananthapuram. The composition of the Advisory Committee will ensure that the administration of the Temple is conducted in a fair and transparent manner.
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only law to be observed is to be found in the custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it. Mere infirmity of the title of the defendant, who is in possession, will not help the25. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. Escheat is a doctrine which recognises the State as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs. This principle is based on the norm that in a society governed by the Rule of Law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision. To allow administrative authorities of the State—including the Collector, as in the present case—to adjudicate upon matters of title involving civil disputes would be destructive of the Rule of Law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him to enter upon private disputes. In contrast, a civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute. In holding that the Collector acted without jurisdiction in the present case, it is not necessary for the Court to go as far as to validate the title which is claimed by the petitioner to the property. The Court is not called upon to decide whether the possession claimed by the Trust of over forty- five years is backed by a credible title. The essential point is that such an adjudicatory function could not have been arrogated to himself by the Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure, 1908.107. In the circumstances, we hold that the death of Sree Chithira Thirunal Balarama Varma who had signed the Covenant, would not in any way affect the Shebaitship of the Temple held by the royal family of Travancore; that after such death, the Shebaitship must devolve in accordance with the applicable law and custom upon his successor; that the expression Ruler of Travancore as appearing in Chapter III of Part I of the TC Act must include his natural successors according to law and custom; and that the Shebaitship did not lapse in favour of the State by principle of escheat.A) In Bala Shankar Maha Shanker Bhattjee and Others vs. Charity Commissioner, Gujarat State (1995) Supp 1 SCC 485 the basic issue was whether Kalika Mataji Temple was a public Trust. The High Court found, inter alia, that by Sanad No.19, Scindias in their capacity as sovereign Rulers had passed on their obligations in respect of the temple to the British Government by a treaty concluded between them in 1860. After considering various decisions on the point, the principles were noted by this Court as under: -19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temple is now well settled. In the case of former the beneficiaries are specific individuals; in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple; gift of properties by the public or grant by the ruler or Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple, it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the headman leaves the temple are not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference.
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R. M. Subbaraj Vs. Kodaikanal Motor Union (P) Ltd | Ray, J. 1. This appeal is by certificate from the judgment, dated August 11, 1964, of the High Court of Madras reversing the decision of the learned Single Judge. The High Court issued a writ quashing the order of the State Transport Appellate Tribunal, Madras and directed the Appellate Tribunal to determine the question of grant of permit outside the ambit of the impugned Government Order No. 2265, dated August 9, 1958. 2. The appellant and the respondent applied to the Regional Transport Authority for the grant of six stage carriage permits. The respondent alleged to have maximum operational communication. The Regional Transport Authority directed the grant of one permit each on two out of six routes to the respondent. 3. The appellant filed an appeal to the State Transport Appellate Tribunal. The State Transport Appellate Tribunal considered the appellant to be the only qualified medium route operation. The State Transport Appellate Tribunal set aside the grant of two permits to the respondent and directed the grant of one to the appellant and the other to another appellant before the State Transport Appellate Tribunal. 4. The respondent filed a writ petition in the High Court of Madras. Among the various grounds on which the respondent impeached the order of the State Transport Appellate Tribunal it was said that the Tribunal over-looked the superior claims of the appellant by treating the preference mentioned in the Government Order as an absolute preference. 5. The learned Single Judge held that though the State Transport Appellate Tribunal gave preference to the appellant because he was a medium operator the Tribunal gave certain additional reasons for the grant of permit to the appellant. The learned Single Judge held that a mere reference to the Government Order could not be magnified reasonably into a principal ground on the basis of which the Tribunal reached the conclusion in favour of the appellant. 6. The respondent took up the matter on appeal. The High Court accepted the appeal. The reason given by the High Court was that the Government Order entered into the decision of the State Transport Appellate Tribunal as a major factor in the decision. It was observed that one of the substantial grounds for the grant was that the respondent was the most qualified medium route operator. 7. The order of the State Transport Appellate Tribunal specifically mentions the Government Order No. 2265, dated August 9, 1958 and incorporates the same as a part of the speaking order in the determination of the controversy. The Government direction was that preference will be given for short routes to new entrants and for medium routes to applicants with one or more buses. The State Transport Appellate Tribunal referred to the fact that the appellant was a four permit-holder and on that basis the State Transport Appellate Tribunal gave the appellant one mark and the said that the appellant was the only qualified medium route operator. The High Court quashed the order of the State Transport Appellate Tribunal because the Government order entered into the decision of the Tribunal. 8. for the repeated the submission made before the High Court that the State Transport Appellate Tribunal made reference to other grounds for the grant of permit to the appellant, and, therefore, the order of the Appellate Tribunal could be sustained as valid. 9. This Court has in several decisions held that the Regional Transport Authority discharges quasi-judicial function in dealing with applications for permits and evaluating the rival claims of the parties for the grant of permit. Section 43-A of the Motor Vehicles Act, 1939 as inserted by the Madras Amending Act 20 of 1948 confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to administrative functions. It is also held by this Court that the decision of the Regional Transport Authority must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. 10. The relevant Government Order No. 2265, dated August 9, 1958 was held invalid by this Court in R. Lakshminarayanan v. T. H. Vythilingam Pillai and Another. (Civil Appeal No. 1792 of 1966, decided on August 27, 1969). 11. It is manifest that the State Transport Appellate Tribunal not only referred to the Government Order as indicating the basis for giving preference for the grant of permits but also applied the Government Order in assessing the competing claims of the contenders for permits. Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. 12. The High Court was right in directing that the applications must be dealt with and disposed of outside the ambit of the impugned Government Orders or their constraining interference. | 0[ds]9. This Court has in several decisions held that the Regional Transport Authority discharges quasi-judicial function in dealing with applications for permits and evaluating the rival claims of the parties for the grant of permit. Section 43-A of the Motor Vehicles Act, 1939 as inserted by the Madras Amending Act 20 of 1948 confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to administrative functions. It is also held by this Court that the decision of the Regional Transport Authority must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State10. The relevant Government Order No. 2265, dated August 9, 1958 was held invalid by this Court in R. Lakshminarayanan v. T. H. Vythilingam Pillai and Another. (Civil Appeal No. 1792 of 1966, decided on August 27, 1969)11. It is manifest that the State Transport Appellate Tribunal not only referred to the Government Order as indicating the basis for giving preference for the grant of permits but also applied the Government Order in assessing the competing claims of the contenders for permits. Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted12. The High Court was right in directing that the applications must be dealt with and disposed of outside the ambit of the impugned Government Orders or their constraining interference. | 0 | 897 | 299 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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Ray, J. 1. This appeal is by certificate from the judgment, dated August 11, 1964, of the High Court of Madras reversing the decision of the learned Single Judge. The High Court issued a writ quashing the order of the State Transport Appellate Tribunal, Madras and directed the Appellate Tribunal to determine the question of grant of permit outside the ambit of the impugned Government Order No. 2265, dated August 9, 1958. 2. The appellant and the respondent applied to the Regional Transport Authority for the grant of six stage carriage permits. The respondent alleged to have maximum operational communication. The Regional Transport Authority directed the grant of one permit each on two out of six routes to the respondent. 3. The appellant filed an appeal to the State Transport Appellate Tribunal. The State Transport Appellate Tribunal considered the appellant to be the only qualified medium route operation. The State Transport Appellate Tribunal set aside the grant of two permits to the respondent and directed the grant of one to the appellant and the other to another appellant before the State Transport Appellate Tribunal. 4. The respondent filed a writ petition in the High Court of Madras. Among the various grounds on which the respondent impeached the order of the State Transport Appellate Tribunal it was said that the Tribunal over-looked the superior claims of the appellant by treating the preference mentioned in the Government Order as an absolute preference. 5. The learned Single Judge held that though the State Transport Appellate Tribunal gave preference to the appellant because he was a medium operator the Tribunal gave certain additional reasons for the grant of permit to the appellant. The learned Single Judge held that a mere reference to the Government Order could not be magnified reasonably into a principal ground on the basis of which the Tribunal reached the conclusion in favour of the appellant. 6. The respondent took up the matter on appeal. The High Court accepted the appeal. The reason given by the High Court was that the Government Order entered into the decision of the State Transport Appellate Tribunal as a major factor in the decision. It was observed that one of the substantial grounds for the grant was that the respondent was the most qualified medium route operator. 7. The order of the State Transport Appellate Tribunal specifically mentions the Government Order No. 2265, dated August 9, 1958 and incorporates the same as a part of the speaking order in the determination of the controversy. The Government direction was that preference will be given for short routes to new entrants and for medium routes to applicants with one or more buses. The State Transport Appellate Tribunal referred to the fact that the appellant was a four permit-holder and on that basis the State Transport Appellate Tribunal gave the appellant one mark and the said that the appellant was the only qualified medium route operator. The High Court quashed the order of the State Transport Appellate Tribunal because the Government order entered into the decision of the Tribunal. 8. for the repeated the submission made before the High Court that the State Transport Appellate Tribunal made reference to other grounds for the grant of permit to the appellant, and, therefore, the order of the Appellate Tribunal could be sustained as valid. 9. This Court has in several decisions held that the Regional Transport Authority discharges quasi-judicial function in dealing with applications for permits and evaluating the rival claims of the parties for the grant of permit. Section 43-A of the Motor Vehicles Act, 1939 as inserted by the Madras Amending Act 20 of 1948 confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to administrative functions. It is also held by this Court that the decision of the Regional Transport Authority must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. 10. The relevant Government Order No. 2265, dated August 9, 1958 was held invalid by this Court in R. Lakshminarayanan v. T. H. Vythilingam Pillai and Another. (Civil Appeal No. 1792 of 1966, decided on August 27, 1969). 11. It is manifest that the State Transport Appellate Tribunal not only referred to the Government Order as indicating the basis for giving preference for the grant of permits but also applied the Government Order in assessing the competing claims of the contenders for permits. Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. 12. The High Court was right in directing that the applications must be dealt with and disposed of outside the ambit of the impugned Government Orders or their constraining interference.
### Response:
0
### Explanation:
9. This Court has in several decisions held that the Regional Transport Authority discharges quasi-judicial function in dealing with applications for permits and evaluating the rival claims of the parties for the grant of permit. Section 43-A of the Motor Vehicles Act, 1939 as inserted by the Madras Amending Act 20 of 1948 confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to administrative functions. It is also held by this Court that the decision of the Regional Transport Authority must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State10. The relevant Government Order No. 2265, dated August 9, 1958 was held invalid by this Court in R. Lakshminarayanan v. T. H. Vythilingam Pillai and Another. (Civil Appeal No. 1792 of 1966, decided on August 27, 1969)11. It is manifest that the State Transport Appellate Tribunal not only referred to the Government Order as indicating the basis for giving preference for the grant of permits but also applied the Government Order in assessing the competing claims of the contenders for permits. Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted12. The High Court was right in directing that the applications must be dealt with and disposed of outside the ambit of the impugned Government Orders or their constraining interference.
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P.G. Joshi & Others Vs. Director General, Posts & Telegraphs, New Delhi & Others | strength of a service or a part of a service sanctioned as separate unit."13. There are no materials to hold that the posts of Wireless Licence Inspector and Town Inspector have been sanctioned as separate units. No separate time-scale has been provided for Wireless Licence Inspectors and Town Inspectors and, the time-scale clerks who were appointed to these posts, continued in the same time-scale of pay of clerks. As already stated on appointment as Wireless Licence Inspectors and Town Inspectors, they were entitled to a special pay of Rs. 30/- per month. Special pay has been defined in Fundamental Rule 9 (25) thus :"Special pay means, an addition, of the nature of pay,to the emoluments of a post or of a Government servantgranted in consideration of(a) the specially arduous nature of the duties; or(b) a specific addition to the work or responsibility, or(c) the unhealthiness of the locality in which the work is performed."14. The provision for payment of a special pay of Rs. 30/- in addition to the time-scale pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post.15. Though, for directly recruited Wireless Licence Inspectors, there is an avenue of promotion from those posts to the posts of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time-scale clerks. Their avenues of promotion are from their substantive posts of time-scale clerks. The posts of Wireless Licence Inspectors to which time-scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time-scale clerks and carry a special pay on account of additional work.16. The mention of the posts of Wireless Licence Inspectors or the specification of the pay of the Wireless Licence Inspectors along with those of the time scale clerks in the Central Civil Services (Revised Pay) Third Amendment Rules, 1973, which came into force on January 1, 1973, would not show that the posts of Wireless Licence Inspectors were separate cadre posts.17. It was then contended that the decision of the Government of India was that the posts of Wireless Licence Inspectors and Town Inspectors should be treated like other posts for which rotational transfers are prescribed and that, by that decision, it was directed that these posts-should be included among the posts mentioned in Rule 60 of Chapter 11 of the Posts and Telegraphs Manual, Vol. IV, by amending the rule. It was, therefore, submitted that the decision of the Government of India was clearly intended to confer on the incumbents of the posts the title to hold them till their superannuation.18. A reference to Rule 60 would make it clear that it does not speak of rotational transfers. All that the rule provides is that posts included under the rule "should not be occupied by the same officials continuously for more than the period shown against each." But, as the decision of the Government dated November 15, 1958 directs that these posts should be included under Rule 60 and since the decision is that these posts should be treated like other posts for which rotational transfers are prescribed, we will proceed on the assumption that that rule deals with rotational transfers. But what follows? The dictionary meaning of rotational is : regular and recurring; succession in office or duties. An element of rotation must be involved in rotational transfer. But what is the rotation if this submission is accepted ? It was submitted that the expression rotational transfer means transfer from one place to another place and from one division to another division, but in the same cadre. Even if the submission is accepted, it would not in any way change the position, for, as we have already seen, the posts of Wireless Licence Inspectors and Town Inspectors form part and parcel of the clerical cadre and, therefore, they will be rotated only in clerical posts which are in the same cadre. Nor do we think that the expression rotational transfer means transfer from one place to another or from one division to another but in the some post.19. In our view, the expression, in the context, can only mean transfer from one post to another and, after the member has spent some time in the post to which he has been transferred, he should be brought back to the original post. This would involve an element of rotation and this is precisely what has been done in the present case, namely, that the incumbents of the posts of Wireless Licence Inspectors and Town Inspectors are being brought back to their original posts after the expiry of the period, namely, 3 years. As we said, Rule 60 only says that the posts included therein should not ordinarily be occupied by the same officials continuously for more than the period shown against each. It does not deal with the places in which an incumbent could be rotated. The expression rotational transfer has nothing to do with the right of the incumbents to hold the posts permanently. The purpose of including these posts among the posts covered by Rule 60 was not to affect the term of employment of the Wireless Licence Inspectors and Town Inspectors, but only to provide that they can occupy the posts only for a period specified, namely, 3 years at a time. The Director General of Posts and Telegraphs was competent to pass R. 279/4 and it is not in any way inconsistent with the decision of the Government of India dated November 15, 1958.20. | 1[ds]13. There are no materials to hold that the posts of Wireless Licence Inspector and Town Inspector have been sanctioned as separate units. No separate time-scale has been provided for Wireless Licence Inspectors and Town Inspectors and, the time-scale clerks who were appointed to these posts, continued in the same time-scale of pay of clerks. As already stated on appointment as Wireless Licence Inspectors and Town Inspectors, they were entitled to a special pay of Rs. 30/- per month. Special pay has been defined in Fundamental Rule 9The mention of the posts of Wireless Licence Inspectors or the specification of the pay of the Wireless Licence Inspectors along with those of the time scale clerks in the Central Civil Services (Revised Pay) Third Amendment Rules, 1973, which came into force on January 1, 1973, would not show that the posts of Wireless Licence Inspectors were separate cadreour view, the expression, in the context, can only mean transfer from one post to another and, after the member has spent some time in the post to which he has been transferred, he should be brought back to the original post. This would involve an element of rotation and this is precisely what has been done in the present case, namely, that the incumbents of the posts of Wireless Licence Inspectors and Town Inspectors are being brought back to their original posts after the expiry of the period, namely, 3 years. As we said, Rule 60 only says that the posts included therein should not ordinarily be occupied by the same officials continuously for more than the period shown against each. It does not deal with the places in which an incumbent could be rotated. The expression rotational transfer has nothing to do with the right of the incumbents to hold the posts permanently. The purpose of including these posts among the posts covered by Rule 60 was not to affect the term of employment of the Wireless Licence Inspectors and Town Inspectors, but only to provide that they can occupy the posts only for a period specified, namely, 3 years at a time. The Director General of Posts and Telegraphs was competent to pass R. 279/4 and it is not in any way inconsistent with the decision of the Government of India dated November 15, 1958.Neither the post of Wireless Licence Inspector not that of Town Inspector answers this definition. That apart, the inclusion of these posts in the list of tenure posts created administrative difficulties. That is clear from the files and notings referred to in the judgment of the Bombay High Court (Nagpur Bench) in Special Civil Applns. Nos. 1 and 240 of 1973 decided on 15-9-1973 = (reported in 1974 Lab IC 1135) (Bom.) It would, therefore, appear that the posts of Wire-less Licence Inspectors and Town Inspectors were removed from the list of tenure because they, not being permanent posts, did not fall within the definition of tenure posts. The deletion was not on account of any decision by the Government of India to make the appointments of the incumbents of these posts permanent. If that had been the decision, the language would have been different. | 1 | 2,479 | 586 | ### 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:
strength of a service or a part of a service sanctioned as separate unit."13. There are no materials to hold that the posts of Wireless Licence Inspector and Town Inspector have been sanctioned as separate units. No separate time-scale has been provided for Wireless Licence Inspectors and Town Inspectors and, the time-scale clerks who were appointed to these posts, continued in the same time-scale of pay of clerks. As already stated on appointment as Wireless Licence Inspectors and Town Inspectors, they were entitled to a special pay of Rs. 30/- per month. Special pay has been defined in Fundamental Rule 9 (25) thus :"Special pay means, an addition, of the nature of pay,to the emoluments of a post or of a Government servantgranted in consideration of(a) the specially arduous nature of the duties; or(b) a specific addition to the work or responsibility, or(c) the unhealthiness of the locality in which the work is performed."14. The provision for payment of a special pay of Rs. 30/- in addition to the time-scale pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post.15. Though, for directly recruited Wireless Licence Inspectors, there is an avenue of promotion from those posts to the posts of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time-scale clerks. Their avenues of promotion are from their substantive posts of time-scale clerks. The posts of Wireless Licence Inspectors to which time-scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time-scale clerks and carry a special pay on account of additional work.16. The mention of the posts of Wireless Licence Inspectors or the specification of the pay of the Wireless Licence Inspectors along with those of the time scale clerks in the Central Civil Services (Revised Pay) Third Amendment Rules, 1973, which came into force on January 1, 1973, would not show that the posts of Wireless Licence Inspectors were separate cadre posts.17. It was then contended that the decision of the Government of India was that the posts of Wireless Licence Inspectors and Town Inspectors should be treated like other posts for which rotational transfers are prescribed and that, by that decision, it was directed that these posts-should be included among the posts mentioned in Rule 60 of Chapter 11 of the Posts and Telegraphs Manual, Vol. IV, by amending the rule. It was, therefore, submitted that the decision of the Government of India was clearly intended to confer on the incumbents of the posts the title to hold them till their superannuation.18. A reference to Rule 60 would make it clear that it does not speak of rotational transfers. All that the rule provides is that posts included under the rule "should not be occupied by the same officials continuously for more than the period shown against each." But, as the decision of the Government dated November 15, 1958 directs that these posts should be included under Rule 60 and since the decision is that these posts should be treated like other posts for which rotational transfers are prescribed, we will proceed on the assumption that that rule deals with rotational transfers. But what follows? The dictionary meaning of rotational is : regular and recurring; succession in office or duties. An element of rotation must be involved in rotational transfer. But what is the rotation if this submission is accepted ? It was submitted that the expression rotational transfer means transfer from one place to another place and from one division to another division, but in the same cadre. Even if the submission is accepted, it would not in any way change the position, for, as we have already seen, the posts of Wireless Licence Inspectors and Town Inspectors form part and parcel of the clerical cadre and, therefore, they will be rotated only in clerical posts which are in the same cadre. Nor do we think that the expression rotational transfer means transfer from one place to another or from one division to another but in the some post.19. In our view, the expression, in the context, can only mean transfer from one post to another and, after the member has spent some time in the post to which he has been transferred, he should be brought back to the original post. This would involve an element of rotation and this is precisely what has been done in the present case, namely, that the incumbents of the posts of Wireless Licence Inspectors and Town Inspectors are being brought back to their original posts after the expiry of the period, namely, 3 years. As we said, Rule 60 only says that the posts included therein should not ordinarily be occupied by the same officials continuously for more than the period shown against each. It does not deal with the places in which an incumbent could be rotated. The expression rotational transfer has nothing to do with the right of the incumbents to hold the posts permanently. The purpose of including these posts among the posts covered by Rule 60 was not to affect the term of employment of the Wireless Licence Inspectors and Town Inspectors, but only to provide that they can occupy the posts only for a period specified, namely, 3 years at a time. The Director General of Posts and Telegraphs was competent to pass R. 279/4 and it is not in any way inconsistent with the decision of the Government of India dated November 15, 1958.20.
### Response:
1
### Explanation:
13. There are no materials to hold that the posts of Wireless Licence Inspector and Town Inspector have been sanctioned as separate units. No separate time-scale has been provided for Wireless Licence Inspectors and Town Inspectors and, the time-scale clerks who were appointed to these posts, continued in the same time-scale of pay of clerks. As already stated on appointment as Wireless Licence Inspectors and Town Inspectors, they were entitled to a special pay of Rs. 30/- per month. Special pay has been defined in Fundamental Rule 9The mention of the posts of Wireless Licence Inspectors or the specification of the pay of the Wireless Licence Inspectors along with those of the time scale clerks in the Central Civil Services (Revised Pay) Third Amendment Rules, 1973, which came into force on January 1, 1973, would not show that the posts of Wireless Licence Inspectors were separate cadreour view, the expression, in the context, can only mean transfer from one post to another and, after the member has spent some time in the post to which he has been transferred, he should be brought back to the original post. This would involve an element of rotation and this is precisely what has been done in the present case, namely, that the incumbents of the posts of Wireless Licence Inspectors and Town Inspectors are being brought back to their original posts after the expiry of the period, namely, 3 years. As we said, Rule 60 only says that the posts included therein should not ordinarily be occupied by the same officials continuously for more than the period shown against each. It does not deal with the places in which an incumbent could be rotated. The expression rotational transfer has nothing to do with the right of the incumbents to hold the posts permanently. The purpose of including these posts among the posts covered by Rule 60 was not to affect the term of employment of the Wireless Licence Inspectors and Town Inspectors, but only to provide that they can occupy the posts only for a period specified, namely, 3 years at a time. The Director General of Posts and Telegraphs was competent to pass R. 279/4 and it is not in any way inconsistent with the decision of the Government of India dated November 15, 1958.Neither the post of Wireless Licence Inspector not that of Town Inspector answers this definition. That apart, the inclusion of these posts in the list of tenure posts created administrative difficulties. That is clear from the files and notings referred to in the judgment of the Bombay High Court (Nagpur Bench) in Special Civil Applns. Nos. 1 and 240 of 1973 decided on 15-9-1973 = (reported in 1974 Lab IC 1135) (Bom.) It would, therefore, appear that the posts of Wire-less Licence Inspectors and Town Inspectors were removed from the list of tenure because they, not being permanent posts, did not fall within the definition of tenure posts. The deletion was not on account of any decision by the Government of India to make the appointments of the incumbents of these posts permanent. If that had been the decision, the language would have been different.
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Anand Estate Private Limited Vs. Deputy Commissioner of Income Tax | F.I. REBELLO, J.Both these Appeals preferred by the assessee raise the following substantial questions of law. Hence both these appeals are being disposed of by this common order.2. Appeals raise the following substantial questions of law:-"I. Whether on the facts and in law the Honble Tribunal erred in not deciding the issue in the explanations to section 40 of the Finance Act, 1983. II. Whether on the facts and in the law the Honble Tribunal erred in not accepting that the principle business of the appellant is ware-housing which was accepted by the Assessing Officer.III. Whether on facts and in law the Honble Tribunal erred in holding that merely because the rental income derived there from was shown under the head "Income from House Property", it becomes the asset of the appellant"The assessee is in the business of ware-housing. These appeals are in respect of the order passed in respect of assessment year 1997-98 and 1998-99.3. There were two appeals before the Appellate Tribunal being W.T.A. 257 and 258 of 2004 for the assessment years 1997-98 and 1998-99. The learned Tribunal has recorded a finding of fact that the godowns in question are given on rent for both assessment years under appeal and as such occupied by the lessee for their business and were not occupied by the appellants for their business. In view of this finding the learned Tribunal held, that the A.O. and the lower Appellate Authority were correct in their view to include the value of the godowns in the net wealth of the assessee. 4. We have heard learned Counsel for the parties. In so far as the closely held company is concerned, by virtue of Finance Act, 1983, Section 40 as introduced deals with revival of levy of wealth-tax in the case of closely held companies. Section 40(3)(vi) is relevant for our discussion and the same reads as under:-"40(3)(vi) building or land appurtenant thereto, other than building or part thereof used by the assesse as factory, godown, warehouse, hotel or office for the purposes of its business or as residential accommodation for its employees or as a hospital, creche, school, canteen, library, recreational centre, shelter, rest room or lunch room mainly for the welfare of its employees and the land appurtenant to such building or part."From a plain and literal reading of the above sub-section, it is clear that it is only the building or land appurtenant thereto other than building or part thereof used by the assessee for the purpose of his business or as residential accommodation for his employees and the like which would be excluded. If the asset is not used, as in the instant case, but given on lease, then the said asset would be considered for computing net wealth. 5. On behalf of the assessee their learned Counsel draws our attention to the definition of "assets" as contained in Section 2(ea) and the substitution by the Finance Act, 1996 with effect from 1st April, 1997. The definition of assets as amended reads as under:-"(ea) in relation to the assessment year commencing on the 1st day of April. 1993, or any subsequent assessment year, means(i) any guest house and any residential house (including a farm house situated within twenty five kilometres from the local limits of any municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee or by any other name) or a cantonment board) but does not include(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or a director who is in whole-time employment, having a gross annual salary of less than two lakh rupees;(2) any house for residential purposes which forms part of stock-in-trade;""(i) any building or land appurtenant thereto (hereinafter referred to as "house"), whether used for residential or commercial purposes or for the purpose of maintaining a guest-house or otherwise including a farmhouse situated within twenty-five kilometres from local limits of any municipality (whether known as municipality, municipal corporation or by any other name) or a cantonment board, but does not include(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or director who is in whole-time employment, having a gross annual salary of less than two lakh rupees; (2) any house for residential or commercial purposes which forms part of stock-in-trade; (3) any house which the assessee may occupy for the purposes of any business or profession carried on by him." It is pointed out that from a reading of sub-clause (1) the word house means the building occupied by the assessee for the purpose of any business or profession carried on therein. The business of the assessee it is submitted is of running a warehouse. The said building therefore, would not fall within the expression "asset" for the purpose of computing net wealth. Our attention is also invited to the explanatory notes, to the provisions of Finance Act, 1996. 6. After hearing the learned Counsel, we are clearly of the opinion that the substitution of definition of "asset" by Finance Act 2 of 1996 with effect from 1st April, 1997, would be inapplicable in so far as the assessee is concerned. The Wealth Tax Act itself has treated a closely held company differently from other assessees for the purpose of the Wealth Tax. Once there be a specific provision in so far as closely held company is concerned which deals with the expression "asset" then the general definition would be excluded. In this case admittedly the assessee is closely held company and as such for the purpose of computing net wealth it will be the provisions of Section 40(3) of the Finance Act, 1983 which are relevant. | 0[ds]From a plain and literal reading of the aboveit is clear that it is only the building or land appurtenant thereto other than building or part thereof used by the assessee for the purpose of his business or as residential accommodation for his employees and the like which would be excluded. If the asset is not used, as in the instant case, but given on lease, then the said asset would be considered for computing netis pointed out that from a reading of(1) the word house means the building occupied by the assessee for the purpose of any business or profession carried on therein. The business of the assessee it is submitted is of running a warehouse. The said building therefore, would not fall within the expression "asset" for the purpose of computing net wealth. Our attention is also invited to the explanatory notes, to the provisions of Finance Act, 1996.After hearing the learned Counsel, we are clearly of the opinion that the substitution of definition of "asset" by Finance Act 2 of 1996 with effect from 1st April, 1997, would be inapplicable in so far as the assessee is concerned. The Wealth Tax Act itself has treated a closely held company differently from other assessees for the purpose of the Wealth Tax. Once there be a specific provision in so far as closely held company is concerned which deals with the expression "asset" then the general definition would be excluded. In this case admittedly the assessee is closely held company and as such for the purpose of computing net wealth it will be the provisions of Section 40(3) of the Finance Act, 1983 which are relevant. | 0 | 1,121 | 311 | ### 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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F.I. REBELLO, J.Both these Appeals preferred by the assessee raise the following substantial questions of law. Hence both these appeals are being disposed of by this common order.2. Appeals raise the following substantial questions of law:-"I. Whether on the facts and in law the Honble Tribunal erred in not deciding the issue in the explanations to section 40 of the Finance Act, 1983. II. Whether on the facts and in the law the Honble Tribunal erred in not accepting that the principle business of the appellant is ware-housing which was accepted by the Assessing Officer.III. Whether on facts and in law the Honble Tribunal erred in holding that merely because the rental income derived there from was shown under the head "Income from House Property", it becomes the asset of the appellant"The assessee is in the business of ware-housing. These appeals are in respect of the order passed in respect of assessment year 1997-98 and 1998-99.3. There were two appeals before the Appellate Tribunal being W.T.A. 257 and 258 of 2004 for the assessment years 1997-98 and 1998-99. The learned Tribunal has recorded a finding of fact that the godowns in question are given on rent for both assessment years under appeal and as such occupied by the lessee for their business and were not occupied by the appellants for their business. In view of this finding the learned Tribunal held, that the A.O. and the lower Appellate Authority were correct in their view to include the value of the godowns in the net wealth of the assessee. 4. We have heard learned Counsel for the parties. In so far as the closely held company is concerned, by virtue of Finance Act, 1983, Section 40 as introduced deals with revival of levy of wealth-tax in the case of closely held companies. Section 40(3)(vi) is relevant for our discussion and the same reads as under:-"40(3)(vi) building or land appurtenant thereto, other than building or part thereof used by the assesse as factory, godown, warehouse, hotel or office for the purposes of its business or as residential accommodation for its employees or as a hospital, creche, school, canteen, library, recreational centre, shelter, rest room or lunch room mainly for the welfare of its employees and the land appurtenant to such building or part."From a plain and literal reading of the above sub-section, it is clear that it is only the building or land appurtenant thereto other than building or part thereof used by the assessee for the purpose of his business or as residential accommodation for his employees and the like which would be excluded. If the asset is not used, as in the instant case, but given on lease, then the said asset would be considered for computing net wealth. 5. On behalf of the assessee their learned Counsel draws our attention to the definition of "assets" as contained in Section 2(ea) and the substitution by the Finance Act, 1996 with effect from 1st April, 1997. The definition of assets as amended reads as under:-"(ea) in relation to the assessment year commencing on the 1st day of April. 1993, or any subsequent assessment year, means(i) any guest house and any residential house (including a farm house situated within twenty five kilometres from the local limits of any municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee or by any other name) or a cantonment board) but does not include(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or a director who is in whole-time employment, having a gross annual salary of less than two lakh rupees;(2) any house for residential purposes which forms part of stock-in-trade;""(i) any building or land appurtenant thereto (hereinafter referred to as "house"), whether used for residential or commercial purposes or for the purpose of maintaining a guest-house or otherwise including a farmhouse situated within twenty-five kilometres from local limits of any municipality (whether known as municipality, municipal corporation or by any other name) or a cantonment board, but does not include(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or director who is in whole-time employment, having a gross annual salary of less than two lakh rupees; (2) any house for residential or commercial purposes which forms part of stock-in-trade; (3) any house which the assessee may occupy for the purposes of any business or profession carried on by him." It is pointed out that from a reading of sub-clause (1) the word house means the building occupied by the assessee for the purpose of any business or profession carried on therein. The business of the assessee it is submitted is of running a warehouse. The said building therefore, would not fall within the expression "asset" for the purpose of computing net wealth. Our attention is also invited to the explanatory notes, to the provisions of Finance Act, 1996. 6. After hearing the learned Counsel, we are clearly of the opinion that the substitution of definition of "asset" by Finance Act 2 of 1996 with effect from 1st April, 1997, would be inapplicable in so far as the assessee is concerned. The Wealth Tax Act itself has treated a closely held company differently from other assessees for the purpose of the Wealth Tax. Once there be a specific provision in so far as closely held company is concerned which deals with the expression "asset" then the general definition would be excluded. In this case admittedly the assessee is closely held company and as such for the purpose of computing net wealth it will be the provisions of Section 40(3) of the Finance Act, 1983 which are relevant.
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### Explanation:
From a plain and literal reading of the aboveit is clear that it is only the building or land appurtenant thereto other than building or part thereof used by the assessee for the purpose of his business or as residential accommodation for his employees and the like which would be excluded. If the asset is not used, as in the instant case, but given on lease, then the said asset would be considered for computing netis pointed out that from a reading of(1) the word house means the building occupied by the assessee for the purpose of any business or profession carried on therein. The business of the assessee it is submitted is of running a warehouse. The said building therefore, would not fall within the expression "asset" for the purpose of computing net wealth. Our attention is also invited to the explanatory notes, to the provisions of Finance Act, 1996.After hearing the learned Counsel, we are clearly of the opinion that the substitution of definition of "asset" by Finance Act 2 of 1996 with effect from 1st April, 1997, would be inapplicable in so far as the assessee is concerned. The Wealth Tax Act itself has treated a closely held company differently from other assessees for the purpose of the Wealth Tax. Once there be a specific provision in so far as closely held company is concerned which deals with the expression "asset" then the general definition would be excluded. In this case admittedly the assessee is closely held company and as such for the purpose of computing net wealth it will be the provisions of Section 40(3) of the Finance Act, 1983 which are relevant.
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BANK OF BARODA Vs. KOTAK MAHINDRA BANK LTD | create a fresh period for enforcing the decree. 16. We clarify that for the purpose of this judgment we have used the expressions, cause country which will mean the country in which the decree was issued (in this case England), and forum country which would mean the country in which the decree is sought to be executed (in this case India). 17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contention. 18. The main argument raised on behalf of the appellant is that sub-section (1) of Section 44A is a deeming provision which provides that the decree shall be executed as if it had been passed by an Indian court. It is urged that this deeming provision should be given its full meaning and when the statute directs an imaginary state of affairs to be taken as real, one should imagine also as real the consequences and incidents which flow from the same. Reference has been made to the judgment in East End Dwellings Co. Ltd. vs. Finsbury Borough Council 1951 (2) All E.R. 587 wherein it was held as follows: …If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit ones imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The aforesaid observations by the House of Lords have been approved by this Court in Income Tax Commissioner vs. S. Teja Singh AIR 1959 SC 352 . The Madras High Court (In Uthamram vs. K. M. Abdul Kasim Co., AIR 1964 Mad 221 ) and the Punjab and Haryana High Court (In Lakhpat Rai Sharma vs. Atma Singh, AIR (58) 1971 P&H 476) have taken the view that the foreign decree has to be executed in India as if it had been passed by an Indian court and the legal fiction must be extended to its logical end. Therefore, the foreign decree must be treated as an Indian decree as on the date it was passed. However, the Punjab and Haryana High Court held in Lakhpat Rai Sharma (supra) that if no step for execution of the decree and no step-in-aid for such an execution is taken in an Indian court on or before the limitation prescribed, then the execution petition has to be dismissed on the ground that it is time barred. It rejected the contention that the application for certificate of non-satisfaction given to the foreign court should be treated to be a step-in-aid and excluded while calculating the period of limitation. 19. Does Section 44A create a fresh period of limitation by extension of the deeming provision?. In our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation. 20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations: (19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation… | 0[ds]From a bare reading of Section 44A CPC it is crystal clear that it applies only to money decrees and not to other decrees13. At the outset, we may note that we are not at all in agreement with the submission of Shri K.K. Venugopal that no limitation is applicable. These are not writ proceedings but execution proceedings. The Act is a complete code in itself and Section 3 clearly sets out that subject to the provisions contained in Section 4 to Section 24 of the Act, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed even if limitation has not been set up as a defence. The word application used is wide enough to include an application filed for execution of a decree, even a foreign decree. Therefore, the principles of delay and laches which may be applicable to writ proceedings cannot be applied to civil proceedings and are not at all attracted in proceedings filed under the CPC which, in our opinion, must be filed within the prescribed period of limitation15. We have carefully considered the matter and at the outset we may note that there is no concept of cause of action in so far as an execution petition is concerned. Cause of action is a concept relating to civil suits and not to execution petitions. Cause of action is nothing but a bundle of facts which gives rise to a legal right enabling the plaintiff to file a suit. On the other hand, a decree is a determination already made by a court on the basis of a reasoned judgment. In case of a decree it becomes enforceable the day it is passed. Therefore, we are clearly of the view that filing of an application under Section 44A will not create a fresh period for enforcing the decree17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contentionIn our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations:(19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation…21. In our view Section 44A only enables the District Court to execute the decree and further provides that the District Court shall follow the same procedure as it follows while executing an Indian decree, but it does not lay down or indicate the period of limitation for filing such an execution petition. We answer question number 1 accordingly24. There is also the issue of conflict of laws between the cause country and the forum country. As far as the present case is concerned, it is not disputed that the limitation for executing a decree in England is 6 years in terms of Section 24 of the Limitation Act of 1980 of the United Kingdom. Rule 40.7 of the Civil Procedure Rules of England provides that a judgment or order takes effect from the date it is given or made or such later date as the court may specify. The decree therefore becomes enforceable on the date when it was passed and as far as this case is concerned, the date of passing of the decree is 20.02.1995. If the limitation is 6 years then obviously the execution petition should have been filed on or before 20.02.2001 and if the limitation was 12 years in terms of Section 136 of the Act, the execution petition would still be barred by limitation as the execution petition was filed in 200933. The view worldwide appears to be that the limitation law of the cause country should be applied even in the forum country. Furthermore, we are of the view that in those cases where the remedy stands extinguished in the cause country it virtually extinguishes the right of the decree-holder to execute the decree and creates a corresponding right in the judgment debtor to challenge the execution of the decree. These are substantive rights and cannot be termed to be procedural. As India becomes a global player in the international business arena, it cannot be one of the few countries where the law of limitation is considered entirely procedural34. We have already clearly indicated that if the law of a forum country is silent with regard to the limitation prescribed for execution of a foreign decree then the limitation of the cause country would apply35. We answer question no. 2 by holding that the limitation period for executing a decree passed by a foreign court (from reciprocating country) in India will be the limitation prescribed in the reciprocating foreign country. Obviously this will be subject to the decree being executable in terms of Section 13 of the CPC36. Coming to the third question, as far as Article 136 of the Act is concerned, we are of the view that the same only deals with decrees passed by Indian courts. The Limitation Act has been framed mainly keeping in view the suits, appeals and applications to be filed in Indian courts and wherever the need was felt to deal with something outside India, the Limitation Act specifically deals with that situation37. When dealing with the applications for execution of decrees the law makers could have easily said including foreign decrees. This having not been said, it appears that the intention of the legislature was that Article 136 would be confined to decrees of Indian courts. Furthermore, Article 136 clearly states that the decree or order should be of a civil court. A civil court, as defined in India, may not be the same as in a foreign jurisdiction. We must also note the fact that the new Limitation Act was enacted in 1963 and presumably the law makers were aware of the provisions of Section 44A of the CPC. When they kept silent on this aspect, the only inference that can be drawn is that Article 136 only deals with decrees passed by Indian civil courts38. Having said so, we are clearly of the view that some clarification needs to be given with regard to the period in which an application under Section 44A can be filed. In this regard, when we read sub-section (1) and sub-section (2) of Section 44A together it is obvious that what is required to be filed is a certified copy of the decree in terms of sub-section (1) and also a certificate from the court in the cause country stating the extent, if any, to which the decree has been satisfied or adjusted. These are the twin requirements and no foreign decree can be executed unless both the requirements are met. It is essential to file not only a certified copy of the decree but also the certificate in terms of sub-section (2). That, however, does not mean that nothing else has to be filed. The only inference is that the decree can be executed only once these documents are filed. The executing court cannot execute this decree and certificate unless the decree holder also provides various details of the judgment debtor that is, his address, etc. in India and the details of the property of the judgment debtor39. Therefore, a party filing a petition for execution of a foreign decree must also necessarily file a written application in terms of Order 21 Rule 11 clause (2) quoted hereinabove. Without such an application it will be impossible for the Court to execute the decree. In our opinion, therefore, this application for executing a foreign decree will be an application not covered under any other article of the Limitation Act and would thus be covered under Article 137 of the Limitation Act and the applicable limitation would be 3 yearsWe can envisage of 2 situations only. The first situation is one where the decree holder does not take any steps for execution of the decree during the period of limitation prescribed in the cause country for execution of decrees in that country. In such a case he has lost his right to execute the decree in the country where the cause of action arose. It would be a travesty of justice if the person having lost his rights to execute the decree in the cause country is permitted to execute the decree in a forum country. This would be against the principle which we have accepted, that the law of limitation is not merely a procedural law. This would mean that a person who has lost his/her right or remedy to execute the foreign decree in the court where the decree was passed could take benefit of the provisions of the Indian law for extending the period of limitation. In the facts of the present case, the limitation in India is 12 years for executing a money decree whereas in England it is 6 years. There may be countries where the limitation for executing such a decree may be more than 12 years. The right of the litigant in the latter situation would not come to an end at 12 years and it would abide by the law of limitation of the cause country which passed the decree. Hence, limitation would start running from the date the decree was passed in the cause country and the period of limitation prescribed in the forum country would not apply. In case the decree holder does not take any steps to execute the decree in the cause country within the period of limitation prescribed in the country of the cause, it cannot come to the forum country and plead a new cause of action or plead that the limitation of the forum country should apply41. The second situation is when a decree holder takes steps-in- aid to execute the decree in the cause country. The proceedings in execution may go on for some time, and the decree may be executed, satisfied partly but not fully. The judgment debtor may not have sufficient property or funds in the cause country to satisfy the decree etc. In such eventuality what would be done? In our considered view, in such circumstances the right to apply under Section 44A will accrue only after the execution proceedings in the cause country are finalised and the application under Section 44A of the CPC can be filed within 3 years of the finalisation of the execution proceedings in the cause country as prescribed by Article 137 of the Act. The decree holder must approach the Indian court along with the certified copy of the decree and the requisite certificate within this period of 3 years42. It is clarified that applying in the cause country for a certified copy of the decree or the certificate of part-satisfaction, if any, of the decree, as required by Section 44A will not tantamount to step-in-aid to execute the decree in the cause country43. We answer the third question accordingly and hold that the period of limitation would start running from the date the decree was passed in the foreign court of a reciprocating country. However, if the decree holder first takes steps-in-aid to execute the decree in the cause country, and the decree is not fully satisfied, then he can then file a petition for execution in India within a period of 3 years from the finalisation of the execution proceedings in the cause country. | 0 | 3,290 | 2,520 | ### 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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create a fresh period for enforcing the decree. 16. We clarify that for the purpose of this judgment we have used the expressions, cause country which will mean the country in which the decree was issued (in this case England), and forum country which would mean the country in which the decree is sought to be executed (in this case India). 17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contention. 18. The main argument raised on behalf of the appellant is that sub-section (1) of Section 44A is a deeming provision which provides that the decree shall be executed as if it had been passed by an Indian court. It is urged that this deeming provision should be given its full meaning and when the statute directs an imaginary state of affairs to be taken as real, one should imagine also as real the consequences and incidents which flow from the same. Reference has been made to the judgment in East End Dwellings Co. Ltd. vs. Finsbury Borough Council 1951 (2) All E.R. 587 wherein it was held as follows: …If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit ones imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The aforesaid observations by the House of Lords have been approved by this Court in Income Tax Commissioner vs. S. Teja Singh AIR 1959 SC 352 . The Madras High Court (In Uthamram vs. K. M. Abdul Kasim Co., AIR 1964 Mad 221 ) and the Punjab and Haryana High Court (In Lakhpat Rai Sharma vs. Atma Singh, AIR (58) 1971 P&H 476) have taken the view that the foreign decree has to be executed in India as if it had been passed by an Indian court and the legal fiction must be extended to its logical end. Therefore, the foreign decree must be treated as an Indian decree as on the date it was passed. However, the Punjab and Haryana High Court held in Lakhpat Rai Sharma (supra) that if no step for execution of the decree and no step-in-aid for such an execution is taken in an Indian court on or before the limitation prescribed, then the execution petition has to be dismissed on the ground that it is time barred. It rejected the contention that the application for certificate of non-satisfaction given to the foreign court should be treated to be a step-in-aid and excluded while calculating the period of limitation. 19. Does Section 44A create a fresh period of limitation by extension of the deeming provision?. In our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation. 20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations: (19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation…
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appears that the intention of the legislature was that Article 136 would be confined to decrees of Indian courts. Furthermore, Article 136 clearly states that the decree or order should be of a civil court. A civil court, as defined in India, may not be the same as in a foreign jurisdiction. We must also note the fact that the new Limitation Act was enacted in 1963 and presumably the law makers were aware of the provisions of Section 44A of the CPC. When they kept silent on this aspect, the only inference that can be drawn is that Article 136 only deals with decrees passed by Indian civil courts38. Having said so, we are clearly of the view that some clarification needs to be given with regard to the period in which an application under Section 44A can be filed. In this regard, when we read sub-section (1) and sub-section (2) of Section 44A together it is obvious that what is required to be filed is a certified copy of the decree in terms of sub-section (1) and also a certificate from the court in the cause country stating the extent, if any, to which the decree has been satisfied or adjusted. These are the twin requirements and no foreign decree can be executed unless both the requirements are met. It is essential to file not only a certified copy of the decree but also the certificate in terms of sub-section (2). That, however, does not mean that nothing else has to be filed. The only inference is that the decree can be executed only once these documents are filed. The executing court cannot execute this decree and certificate unless the decree holder also provides various details of the judgment debtor that is, his address, etc. in India and the details of the property of the judgment debtor39. Therefore, a party filing a petition for execution of a foreign decree must also necessarily file a written application in terms of Order 21 Rule 11 clause (2) quoted hereinabove. Without such an application it will be impossible for the Court to execute the decree. In our opinion, therefore, this application for executing a foreign decree will be an application not covered under any other article of the Limitation Act and would thus be covered under Article 137 of the Limitation Act and the applicable limitation would be 3 yearsWe can envisage of 2 situations only. The first situation is one where the decree holder does not take any steps for execution of the decree during the period of limitation prescribed in the cause country for execution of decrees in that country. In such a case he has lost his right to execute the decree in the country where the cause of action arose. It would be a travesty of justice if the person having lost his rights to execute the decree in the cause country is permitted to execute the decree in a forum country. This would be against the principle which we have accepted, that the law of limitation is not merely a procedural law. This would mean that a person who has lost his/her right or remedy to execute the foreign decree in the court where the decree was passed could take benefit of the provisions of the Indian law for extending the period of limitation. In the facts of the present case, the limitation in India is 12 years for executing a money decree whereas in England it is 6 years. There may be countries where the limitation for executing such a decree may be more than 12 years. The right of the litigant in the latter situation would not come to an end at 12 years and it would abide by the law of limitation of the cause country which passed the decree. Hence, limitation would start running from the date the decree was passed in the cause country and the period of limitation prescribed in the forum country would not apply. In case the decree holder does not take any steps to execute the decree in the cause country within the period of limitation prescribed in the country of the cause, it cannot come to the forum country and plead a new cause of action or plead that the limitation of the forum country should apply41. The second situation is when a decree holder takes steps-in- aid to execute the decree in the cause country. The proceedings in execution may go on for some time, and the decree may be executed, satisfied partly but not fully. The judgment debtor may not have sufficient property or funds in the cause country to satisfy the decree etc. In such eventuality what would be done? In our considered view, in such circumstances the right to apply under Section 44A will accrue only after the execution proceedings in the cause country are finalised and the application under Section 44A of the CPC can be filed within 3 years of the finalisation of the execution proceedings in the cause country as prescribed by Article 137 of the Act. The decree holder must approach the Indian court along with the certified copy of the decree and the requisite certificate within this period of 3 years42. It is clarified that applying in the cause country for a certified copy of the decree or the certificate of part-satisfaction, if any, of the decree, as required by Section 44A will not tantamount to step-in-aid to execute the decree in the cause country43. We answer the third question accordingly and hold that the period of limitation would start running from the date the decree was passed in the foreign court of a reciprocating country. However, if the decree holder first takes steps-in-aid to execute the decree in the cause country, and the decree is not fully satisfied, then he can then file a petition for execution in India within a period of 3 years from the finalisation of the execution proceedings in the cause country.
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T.N. GODAVARMAN THIRUMULPAD Vs. UNION OF INDIA AND ORS. & ORS | Kulem by NBWL should be revoked for the reasons as stated hereinafter. 20. The Ministry of Railways or RVNL have failed to provide any substantial basis for the requirement of doubling the railway line by addressing the impact which it would have on the habitat and the damage that it would cause to the environment. RVNL attempted to justify its decision on the ground that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future and the proposed project is very much essential for transportation of said goods. Reliance was placed by RVNL on a Parliamentary clarification dated 02.02.2022 and a letter of the Ministry of Power, Government of India to argue that there is no likelihood of shift from coal-based economy. We are in agreement with the CEC that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal. The said suggestion would also prevent the degradation of the Western Ghats. Even according to RVNL, traffic on Konkan railway line is frequently dislocated due to landslides, breaches etc. especially during the rainy season. In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well. 21. The landscape in which the railway line is proposed to pass is an important tiger corridor, connecting the three States of Goa, Karnataka and Maharashtra. The report prepared by the NTCA regarding the viability of such a railway line is only for the Karnataka part of the project. No such report has been prepared for the Goa part. The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported. We find merit in the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material. The point raised by RVNL before CEC regarding the enhancement of connectivity between Goa and Karnataka by the proposed project was rightly rejected on the ground that there was a proposal for 4-lanning of National Highway-4 along with the same route and augmentation of air connectivity to Goa. We are unable to uphold the approval granted to the project by NBWL on the basis of the assurance given by RVNL that all possible mitigation measures shall be taken to protect bio-diversity and eco system of the protected areas under the Wildlife Protection Act, 1972. RVNL has proposed to undertake impact assessment, thorough study of long-term impact, planning of various mitigation measures for safeguarding interest of wildlife habitat and flora and fauna. RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals. CEC in its report submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. Therefore, the mitigation measure proposed to be undertaken by RVNL is not clear. The report prepared by Indian Institute of Science, Bengaluru, Biodiversity and Environmental Assessment of proposed doubling of railway track between Kulem and Castlerock in Goa-Karnataka relied upon by RVNL was considered by CEC which observed that according to NTCA the study report of Indian Institute of Science, Bengaluru lacks in critical assessment, particularly of project impacts. NTCA further suggested that there should be an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem. 22. It is necessary that there should be a detailed study and analysis of the impact of the proposed project on the bio- diversity and ecological system of the protected areas under wildlife sanctuary. A detailed study undertaken by NTCA on the viability of the project for the Goa part is essential in view of the Bhagwan Mahaveer Wildlife Sanctuary being an important tiger corridor. Even according to NTCA, an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem has to be undertaken. The impact of the increase of section capacity by 2.5 times than by doubling the railway line in comparison to the single line along with increased mobility on wildlife problems in terms of sound pollution, vibrations etc. has not been taken into account by the Standing Committee of NBWL while recommending the project. Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. There is also no credible supporting data for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and there is no explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project. Such data, projections and speculations will have to be supported by an independent and credible source before undertaking any kind of construction activity in the Western Ghats which is worlds eight hotspots of biological diversity. | 1[ds]15. Adherence to the principle of sustainable development is a constitutional requirement. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs. Therefore, Courts are required to balance development needs with the protection of the environment and ecology T.N. Godavarman Thirumulpad v. Union of India (2008) 2 SCC 222 . It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718 . While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281 .16. In Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, this Court held that the Precautionary Principle is an essential feature of the principle of Sustainable Development. It went on to explain the precautionary principle in the following terms: -(i) Environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation.(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.(iii) The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.18. A situation may arise where there may be irreparable damage to the environment after an activity is allowed to go ahead and if it is stopped, there may be irreparable damage to economic interest M.C Mehta v. Union of India (2004) 12 SCC 118 . This Court held that in case of a doubt, protection of environment would have precedence over the economic interest. It was further held that precautionary principle requires anticipatory action to be taken to prevent harm and that harm can be prevented even on a reasonable suspicion. Further, this Court emphasises in the said judgment that it is not always necessary that there should be direct evidence of harm to the environment.We are of the view that the CEC is right in its conclusion that the proposal for the doubling of the railway line between Castlerock to Kulem by NBWL should be revoked for the reasons as stated hereinafter.20. The Ministry of Railways or RVNL have failed to provide any substantial basis for the requirement of doubling the railway line by addressing the impact which it would have on the habitat and the damage that it would cause to the environment. RVNL attempted to justify its decision on the ground that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future and the proposed project is very much essential for transportation of said goods. Reliance was placed by RVNL on a Parliamentary clarification dated 02.02.2022 and a letter of the Ministry of Power, Government of India to argue that there is no likelihood of shift from coal-based economy. We are in agreement with the CEC that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal. The said suggestion would also prevent the degradation of the Western Ghats. Even according to RVNL, traffic on Konkan railway line is frequently dislocated due to landslides, breaches etc. especially during the rainy season. In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.21. The landscape in which the railway line is proposed to pass is an important tiger corridor, connecting the three States of Goa, Karnataka and Maharashtra. The report prepared by the NTCA regarding the viability of such a railway line is only for the Karnataka part of the project. No such report has been prepared for the Goa part. The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported. We find merit in the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material. The point raised by RVNL before CEC regarding the enhancement of connectivity between Goa and Karnataka by the proposed project was rightly rejected on the ground that there was a proposal for 4-lanning of National Highway-4 along with the same route and augmentation of air connectivity to Goa. We are unable to uphold the approval granted to the project by NBWL on the basis of the assurance given by RVNL that all possible mitigation measures shall be taken to protect bio-diversity and eco system of the protected areas under the Wildlife Protection Act, 1972. RVNL has proposed to undertake impact assessment, thorough study of long-term impact, planning of various mitigation measures for safeguarding interest of wildlife habitat and flora and fauna. RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals. CEC in its report submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. Therefore, the mitigation measure proposed to be undertaken by RVNL is not clear. The report prepared by Indian Institute of Science, Bengaluru, Biodiversity and Environmental Assessment of proposed doubling of railway track between Kulem and Castlerock in Goa-Karnataka relied upon by RVNL was considered by CEC which observed that according to NTCA the study report of Indian Institute of Science, Bengaluru lacks in critical assessment, particularly of project impacts. NTCA further suggested that there should be an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.22. It is necessary that there should be a detailed study and analysis of the impact of the proposed project on the bio- diversity and ecological system of the protected areas under wildlife sanctuary. A detailed study undertaken by NTCA on the viability of the project for the Goa part is essential in view of the Bhagwan Mahaveer Wildlife Sanctuary being an important tiger corridor. Even according to NTCA, an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem has to be undertaken. The impact of the increase of section capacity by 2.5 times than by doubling the railway line in comparison to the single line along with increased mobility on wildlife problems in terms of sound pollution, vibrations etc. has not been taken into account by the Standing Committee of NBWL while recommending the project. Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. There is also no credible supporting data for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and there is no explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project. Such data, projections and speculations will have to be supported by an independent and credible source before undertaking any kind of construction activity in the Western Ghats which is worlds eight hotspots of biological diversity. | 1 | 4,798 | 1,570 | ### 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:
Kulem by NBWL should be revoked for the reasons as stated hereinafter. 20. The Ministry of Railways or RVNL have failed to provide any substantial basis for the requirement of doubling the railway line by addressing the impact which it would have on the habitat and the damage that it would cause to the environment. RVNL attempted to justify its decision on the ground that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future and the proposed project is very much essential for transportation of said goods. Reliance was placed by RVNL on a Parliamentary clarification dated 02.02.2022 and a letter of the Ministry of Power, Government of India to argue that there is no likelihood of shift from coal-based economy. We are in agreement with the CEC that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal. The said suggestion would also prevent the degradation of the Western Ghats. Even according to RVNL, traffic on Konkan railway line is frequently dislocated due to landslides, breaches etc. especially during the rainy season. In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well. 21. The landscape in which the railway line is proposed to pass is an important tiger corridor, connecting the three States of Goa, Karnataka and Maharashtra. The report prepared by the NTCA regarding the viability of such a railway line is only for the Karnataka part of the project. No such report has been prepared for the Goa part. The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported. We find merit in the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material. The point raised by RVNL before CEC regarding the enhancement of connectivity between Goa and Karnataka by the proposed project was rightly rejected on the ground that there was a proposal for 4-lanning of National Highway-4 along with the same route and augmentation of air connectivity to Goa. We are unable to uphold the approval granted to the project by NBWL on the basis of the assurance given by RVNL that all possible mitigation measures shall be taken to protect bio-diversity and eco system of the protected areas under the Wildlife Protection Act, 1972. RVNL has proposed to undertake impact assessment, thorough study of long-term impact, planning of various mitigation measures for safeguarding interest of wildlife habitat and flora and fauna. RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals. CEC in its report submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. Therefore, the mitigation measure proposed to be undertaken by RVNL is not clear. The report prepared by Indian Institute of Science, Bengaluru, Biodiversity and Environmental Assessment of proposed doubling of railway track between Kulem and Castlerock in Goa-Karnataka relied upon by RVNL was considered by CEC which observed that according to NTCA the study report of Indian Institute of Science, Bengaluru lacks in critical assessment, particularly of project impacts. NTCA further suggested that there should be an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem. 22. It is necessary that there should be a detailed study and analysis of the impact of the proposed project on the bio- diversity and ecological system of the protected areas under wildlife sanctuary. A detailed study undertaken by NTCA on the viability of the project for the Goa part is essential in view of the Bhagwan Mahaveer Wildlife Sanctuary being an important tiger corridor. Even according to NTCA, an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem has to be undertaken. The impact of the increase of section capacity by 2.5 times than by doubling the railway line in comparison to the single line along with increased mobility on wildlife problems in terms of sound pollution, vibrations etc. has not been taken into account by the Standing Committee of NBWL while recommending the project. Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. There is also no credible supporting data for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and there is no explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project. Such data, projections and speculations will have to be supported by an independent and credible source before undertaking any kind of construction activity in the Western Ghats which is worlds eight hotspots of biological diversity.
### Response:
1
### Explanation:
between Castlerock to Kulem by NBWL should be revoked for the reasons as stated hereinafter.20. The Ministry of Railways or RVNL have failed to provide any substantial basis for the requirement of doubling the railway line by addressing the impact which it would have on the habitat and the damage that it would cause to the environment. RVNL attempted to justify its decision on the ground that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future and the proposed project is very much essential for transportation of said goods. Reliance was placed by RVNL on a Parliamentary clarification dated 02.02.2022 and a letter of the Ministry of Power, Government of India to argue that there is no likelihood of shift from coal-based economy. We are in agreement with the CEC that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal. The said suggestion would also prevent the degradation of the Western Ghats. Even according to RVNL, traffic on Konkan railway line is frequently dislocated due to landslides, breaches etc. especially during the rainy season. In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.21. The landscape in which the railway line is proposed to pass is an important tiger corridor, connecting the three States of Goa, Karnataka and Maharashtra. The report prepared by the NTCA regarding the viability of such a railway line is only for the Karnataka part of the project. No such report has been prepared for the Goa part. The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported. We find merit in the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material. The point raised by RVNL before CEC regarding the enhancement of connectivity between Goa and Karnataka by the proposed project was rightly rejected on the ground that there was a proposal for 4-lanning of National Highway-4 along with the same route and augmentation of air connectivity to Goa. We are unable to uphold the approval granted to the project by NBWL on the basis of the assurance given by RVNL that all possible mitigation measures shall be taken to protect bio-diversity and eco system of the protected areas under the Wildlife Protection Act, 1972. RVNL has proposed to undertake impact assessment, thorough study of long-term impact, planning of various mitigation measures for safeguarding interest of wildlife habitat and flora and fauna. RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals. CEC in its report submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. Therefore, the mitigation measure proposed to be undertaken by RVNL is not clear. The report prepared by Indian Institute of Science, Bengaluru, Biodiversity and Environmental Assessment of proposed doubling of railway track between Kulem and Castlerock in Goa-Karnataka relied upon by RVNL was considered by CEC which observed that according to NTCA the study report of Indian Institute of Science, Bengaluru lacks in critical assessment, particularly of project impacts. NTCA further suggested that there should be an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.22. It is necessary that there should be a detailed study and analysis of the impact of the proposed project on the bio- diversity and ecological system of the protected areas under wildlife sanctuary. A detailed study undertaken by NTCA on the viability of the project for the Goa part is essential in view of the Bhagwan Mahaveer Wildlife Sanctuary being an important tiger corridor. Even according to NTCA, an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem has to be undertaken. The impact of the increase of section capacity by 2.5 times than by doubling the railway line in comparison to the single line along with increased mobility on wildlife problems in terms of sound pollution, vibrations etc. has not been taken into account by the Standing Committee of NBWL while recommending the project. Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. There is also no credible supporting data for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and there is no explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project. Such data, projections and speculations will have to be supported by an independent and credible source before undertaking any kind of construction activity in the Western Ghats which is worlds eight hotspots of biological diversity.
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Life Insurance Corporation Of India Vs. Rajmata Saheb Chowhanji & Ors | and agreed to allot the said 1000 shares to plaintiff No.4". "8(a) ......................... ...... The plaintiffs submit that the transaction of selling the said 2000 shares of defendant No. 1 Company and registering the same as aforesaid in the names of plaintiffs No. 2 to 4 with a guarantee of minimum return is ultra vires the defendant No. 1 Company and is found to be void and inoperative in law. 8(b) The said 2000 shares of defendant No. 1 Company are as aforesaid applied for and registered in the names of plaintiffs No. 2 to 4. At all material times when the said shares were registered in the name of plaintiffs No. 2 to 4, the plaintiffs No. 2 to 4 were minors. The plaintiffs submit that the transaction of issuing the said 2000 shares to plaintiffs No. 2 to 4 who were then minors and registering them as share- holders in the Register of defendant No. 1 Company is void in law".Thus, the plaintiff has clearly alleged that the monies were paid to the defendant company and not to the Managing Director personally. If the share scrips were issued, to the plaintiff then it must be presumed that the money was received by the company. This fact has not been denied by the defendant-appellant. In these circumstances, therefore, it is absolutely clear that there is nothing to show that the money was paid to the Managing Director personally and not to the company. Moreover, this is essentially a question of fact and it does not appear to have been raised before any of the courts below. For these reasons, therefore, the first contention put forward by the Solicitor General is hereby over-ruled. Coming to the next contention the same undoubtedly merits serious consideration . Before however examining this contention the following admitted facts may be stated thus: 1. That the Bima Company was doing merely the business of life insurance and no other; 2. That on the coming into force of the Act the entire interest of the Company vested in the Government: Section 7(2) of the Act runs thus:- "7 (2) The assets appertaining to the controlled business of an insurer shall be deemed to include all rights and powers, and all property, whether movable and immovable, appertaining to his controlled business, including, in particular, cash balances, reserve funds, investments, deposits and all other interest and rights in or arising out of such property as may be in the possession of the insurer and all books of account or documents relating to the controlled business of the insurer; and liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind then existing and appertaining to the controlled business of the insurer.Explanation: The expression assets appertaining to the controlled business of an insurer (a) in relation to a composite insurer, includes that part of the paid-up capital of the insurer or assets representing such part which has or have been allocated to the controlled business of the insurer in accordance with the rules made in this behalf; (b) in relation to a Government, means the amount lying to the credit of that business on the appointed day". 5. It is contended by the Solicitor General that the appellant was liable to discharge only those liabilities which pertained to the controlled business of the insurer. Sub-clause (3) of section 2 of the Act defines controlled business thus:-"controlled business" means- (i) in the case of any insurer specified in sub-clause (a) (ii) or sub-clause (b) of clause (9) of section 2 of the Insurance Act and, carrying on life insurance business .... " 6. As we have already pointed out that defendant No. 1 Adarsh Bima Company was carrying on the business of life insurance only. Thus the moment the Act was passed, the business of the Adarsh Bima Company vested in the Corporation. Pari passu this contention it was submitted that under section 7(2) of the Act the liability of the appellant would not extend not to any acts which are fraudulent or ultra vires of the statutes of the company. We are, however, unable to agree with this contention. The words of section 7(2) of the Act appear to be of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that at t he time when the appellant took over the Adarsh Bima Company the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract Act in view of the finding of fact recorded by the Courts below that the contract was void. The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. The words "of whatever kind" are wide enough, to take within their sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the predecessor company which had received the sum of Rs. 2, 00, 000 from the plaintiff and had issued share scrips. In these circumstances, therefore, we do not see how the defendant No. 3 can escape his liability even under section 7(2) of the Act. As however the plaintiff will be entitled to restitution of the benefits under section 65 of the Act, he can only get the amount which he had paid to the appellant company and not any interest thereon up to the date of the suit. 7. For these reasons, we are of the opinion that the judgment of the High Court is correct and does not require any interference except a slight modification in the form of the decree. | 0[ds]As regards the first contention we find absolutely no substance in the same. There was absolutely no pleading by the defendants that the monies were received by the Managing Director personally and that the same did not go to the coffers of the company.If the share scrips were issued, to the plaintiff then it must be presumed that the money was received by the company. This fact has not been denied by theComing to the next contention the same undoubtedly merits serious considerationAs we have already pointed out that defendant No. 1 Adarsh Bima Company was carrying on the business of life insurance only. Thus the moment the Act was passed, the business of the Adarsh Bima Company vested in the Corporation. Pari passu this contention it was submitted that under section 7(2) of the Act the liability of the appellant would not extend not to any acts which are fraudulent or ultra vires of the statutes of the company. We are, however, unable to agree with this contention. The words of section 7(2) of the Act appear to be of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that at t he time when the appellant took over the Adarsh Bima Company the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract Act in view of the finding of fact recorded by the Courts below that the contract was void. The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. The words "of whatever kind" are wide enough, to take within their sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the predecessor company which had received the sum of Rs. 2, 00, 000 from the plaintiff and had issued share scrips. In these circumstances, therefore, we do not see how the defendant No. 3 can escape his liability even under section 7(2) of the Act. As however the plaintiff will be entitled to restitution of the benefits under section 65 of the Act, he can only get the amount which he had paid to the appellant company and not any interest thereon up to the date of the suit.For these reasons, we are of the opinion that the judgment of the High Court is correct and does not require any interference except a slight modification in the form of the decree. | 0 | 1,808 | 518 | ### 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:
and agreed to allot the said 1000 shares to plaintiff No.4". "8(a) ......................... ...... The plaintiffs submit that the transaction of selling the said 2000 shares of defendant No. 1 Company and registering the same as aforesaid in the names of plaintiffs No. 2 to 4 with a guarantee of minimum return is ultra vires the defendant No. 1 Company and is found to be void and inoperative in law. 8(b) The said 2000 shares of defendant No. 1 Company are as aforesaid applied for and registered in the names of plaintiffs No. 2 to 4. At all material times when the said shares were registered in the name of plaintiffs No. 2 to 4, the plaintiffs No. 2 to 4 were minors. The plaintiffs submit that the transaction of issuing the said 2000 shares to plaintiffs No. 2 to 4 who were then minors and registering them as share- holders in the Register of defendant No. 1 Company is void in law".Thus, the plaintiff has clearly alleged that the monies were paid to the defendant company and not to the Managing Director personally. If the share scrips were issued, to the plaintiff then it must be presumed that the money was received by the company. This fact has not been denied by the defendant-appellant. In these circumstances, therefore, it is absolutely clear that there is nothing to show that the money was paid to the Managing Director personally and not to the company. Moreover, this is essentially a question of fact and it does not appear to have been raised before any of the courts below. For these reasons, therefore, the first contention put forward by the Solicitor General is hereby over-ruled. Coming to the next contention the same undoubtedly merits serious consideration . Before however examining this contention the following admitted facts may be stated thus: 1. That the Bima Company was doing merely the business of life insurance and no other; 2. That on the coming into force of the Act the entire interest of the Company vested in the Government: Section 7(2) of the Act runs thus:- "7 (2) The assets appertaining to the controlled business of an insurer shall be deemed to include all rights and powers, and all property, whether movable and immovable, appertaining to his controlled business, including, in particular, cash balances, reserve funds, investments, deposits and all other interest and rights in or arising out of such property as may be in the possession of the insurer and all books of account or documents relating to the controlled business of the insurer; and liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind then existing and appertaining to the controlled business of the insurer.Explanation: The expression assets appertaining to the controlled business of an insurer (a) in relation to a composite insurer, includes that part of the paid-up capital of the insurer or assets representing such part which has or have been allocated to the controlled business of the insurer in accordance with the rules made in this behalf; (b) in relation to a Government, means the amount lying to the credit of that business on the appointed day". 5. It is contended by the Solicitor General that the appellant was liable to discharge only those liabilities which pertained to the controlled business of the insurer. Sub-clause (3) of section 2 of the Act defines controlled business thus:-"controlled business" means- (i) in the case of any insurer specified in sub-clause (a) (ii) or sub-clause (b) of clause (9) of section 2 of the Insurance Act and, carrying on life insurance business .... " 6. As we have already pointed out that defendant No. 1 Adarsh Bima Company was carrying on the business of life insurance only. Thus the moment the Act was passed, the business of the Adarsh Bima Company vested in the Corporation. Pari passu this contention it was submitted that under section 7(2) of the Act the liability of the appellant would not extend not to any acts which are fraudulent or ultra vires of the statutes of the company. We are, however, unable to agree with this contention. The words of section 7(2) of the Act appear to be of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that at t he time when the appellant took over the Adarsh Bima Company the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract Act in view of the finding of fact recorded by the Courts below that the contract was void. The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. The words "of whatever kind" are wide enough, to take within their sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the predecessor company which had received the sum of Rs. 2, 00, 000 from the plaintiff and had issued share scrips. In these circumstances, therefore, we do not see how the defendant No. 3 can escape his liability even under section 7(2) of the Act. As however the plaintiff will be entitled to restitution of the benefits under section 65 of the Act, he can only get the amount which he had paid to the appellant company and not any interest thereon up to the date of the suit. 7. For these reasons, we are of the opinion that the judgment of the High Court is correct and does not require any interference except a slight modification in the form of the decree.
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### Explanation:
As regards the first contention we find absolutely no substance in the same. There was absolutely no pleading by the defendants that the monies were received by the Managing Director personally and that the same did not go to the coffers of the company.If the share scrips were issued, to the plaintiff then it must be presumed that the money was received by the company. This fact has not been denied by theComing to the next contention the same undoubtedly merits serious considerationAs we have already pointed out that defendant No. 1 Adarsh Bima Company was carrying on the business of life insurance only. Thus the moment the Act was passed, the business of the Adarsh Bima Company vested in the Corporation. Pari passu this contention it was submitted that under section 7(2) of the Act the liability of the appellant would not extend not to any acts which are fraudulent or ultra vires of the statutes of the company. We are, however, unable to agree with this contention. The words of section 7(2) of the Act appear to be of the widest amplitude and the section includes all debts, liabilities, obligations of whatever kind then existing and appertaining to the controlled business of the insurer. There can be no doubt that at t he time when the appellant took over the Adarsh Bima Company the obligation to restitute the benefit received by the company from the plaintiff had been fastened and the appellant was legally bound to return the same to the plaintiff under section 65 of the Contract Act in view of the finding of fact recorded by the Courts below that the contract was void. The question as to whether or not the transaction was ultra vires of the statutes of the company was wholly irrelevant because that was the reason why the contract was void and not a ground for exempting the appellant from its liability to pay. The words "of whatever kind" are wide enough, to take within their sweep all kinds of transactions entered into by the predecessor company. The present transaction was undoubtedly entered into by the predecessor company which had received the sum of Rs. 2, 00, 000 from the plaintiff and had issued share scrips. In these circumstances, therefore, we do not see how the defendant No. 3 can escape his liability even under section 7(2) of the Act. As however the plaintiff will be entitled to restitution of the benefits under section 65 of the Act, he can only get the amount which he had paid to the appellant company and not any interest thereon up to the date of the suit.For these reasons, we are of the opinion that the judgment of the High Court is correct and does not require any interference except a slight modification in the form of the decree.
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A.K. Roy & Another Vs. Voltas Limited | the less the "wholesale cash price" for the purpose of Section 4 (a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business.20. The next question is: what exactly is the meaning of the term the "wholesale cash price"? In Vacuum Oil Co. v. Secretary of State for India in Council, 59 Ind App 258 = (AIR 1932 PC 168 ), it was held that the term means the price paid by retail traders on wholesale purchase. The essence of the idea is that the purchase must be a wholesale purchase and not a retail one. In other words, the sale must be wholesale and not a retail one in order that the price realised may be termed the "wholesale cash price". In that case the appellants before the Privy Council imported at Bombay, very large quantities of lubricating oil of a particular manufacture and mark. They sold it direct to numerous, customers, never to dealers. The price they charged was the same whether a large or small quantity was bought, except that if a consumer contracted to buy from them all his requirements for a year, he was entitled to a discount from 21/2 to 15 per cent according to the quantity bought in the year. No other lubricating oil of a like kind and quality was sold in Bombay. On the question whether the appellant was bound to pay customs duty on the basis of clause (a) or clause (b) of Section 30 of the Sea Customs Act, 1878, the Privy Council held that since the sales were to customers direct, the real value of the goods cannot be ascertained under clause (a) of Section 30 and that cl. (b) of Section 30 was applicable. Their Lordships said that in determining the price which is to represent the real value of the goods to be taxed, "the price must be conservative in every respect and free in particular from any loading for any post importation charges incurred in relation to the goods". "The price is to be a price for goods, as they are both at the time, and place of importation. It is to be a cash price, that is to say a price free from any augmentation for credit or other advantage allowed to a buyer it is to be a net price, that is to say it is a price less trade discount ". Their Lordships, therefore, held that the words the wholesale price were used in the section in contradistinction to a retail price, and that not only on the ground that such is a well-recognised meaning of the words but because their association with the words trade discount indicates that sales to the trade are those in contemplation, and alsod because only by attaching that meaning to the word is the wholesale price relieved of the loading representing post-importation expenses which, as a matter of business, must always be charged to the consumer, and which are eliminated.21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 = (AIR 1963 SC 791 ) ) Sec. 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profits and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4 (a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the the true position.22. The appellant contended that 22 per cent discount allowed under the agreements with the wholesale dealers was not trade discount, on the ground that there was no evidence to show that the discount allowed was trade discount within the meaning of the Explanation to Section 4. There was no contention by the appellants before the High Court that the discount allowed to the wholesale dealers was not trade discount. The whole argument before the High Court proceeded on the basis that direct sales by the respondent to consumers constituted the major portion of the sales and that the sales to the wholesale dealers only represented a minor portion and, therefore, the price charged for the sales to wholesale dealers would not represent the wholesale cash price of the articles sold. No data was placed before the High Court by the appellant to show that the 22% discount did not represent "trade discount for the purpose of the Explanation. A "trade discount" is a percentage deduction from the regular list or catalogue price of goods. As there was no case for the appellants that there was any secret arrangement between the wholesale dealers and the respondent in respect of the sales to them or that the price of the articles was under-stated in the agreements or that any extra-commercial advantages to the dealers were taken into account in fixing the price, we do not think that we should go into the question whether the discount allowed to the wholesale dealers was trade discount or not for the purpose of the Explanation.23 | 0[ds]19. There can be no doubt that 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 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. Once wholesale dealings at arms length are established, the determination of the "wholesale cash price" for the purpose of Section 4 (a) of the Act may not depend upon the number of such wholesale dealings. The fact that the appellant sold 90 to 95 per cent of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any the less the "wholesale cash price" for the purpose of Section 4 (a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business.20.The next question is: what exactly is the meaning of the term the "wholesale cashprice"? In Vacuum Oil Co. v. Secretary of State for India in Council, 59 Ind App 258 = (AIR 1932 PC 168 ), it was held that the term means the price paid by retail traders on wholesale purchase. The essence of the idea is that the purchase must be a wholesale purchase and not a retail one. In other words, the sale must be wholesale and not a retail one in order that the price realised may be termed the "wholesale cash price". In that case the appellants before the Privy Council imported at Bombay, very large quantities of lubricating oil of a particular manufacture and mark. They sold it direct to numerous, customers, never to dealers. The price they charged was the same whether a large or small quantity was bought, except that if a consumer contracted to buy from them all his requirements for a year, he was entitled to a discount from 21/2 to 15 per cent according to the quantity bought in the year. No other lubricating oil of a like kind and quality was sold in Bombay. On the question whether the appellant was bound to pay customs duty on the basis of clause (a) or clause (b) of Section 30 of the Sea Customs Act, 1878, the Privy Council held that since the sales were to customers direct, the real value of the goods cannot be ascertained under clause (a) of Section 30 and that cl. (b) of Section 30 was applicable. Their Lordships said that in determining the price which is to represent the real value of the goods to be taxed, "the price must be conservative in every respect and free in particular from any loading for any post importation charges incurred in relation to the goods". "The price is to be a price for goods, as they are both at the time, and place of importation. It is to be a cash price, that is to say a price free from any augmentation for credit or other advantage allowed to a buyer it is to be a net price, that is to say it is a price less trade discount ". Their Lordships, therefore, held that the words the wholesale price were used in the section in contradistinction to a retail price, and that not only on the ground that such is a well-recognised meaning of the words but because their association with the words trade discount indicates that sales to the trade are those in contemplation, and alsod because only by attaching that meaning to the word is the wholesale price relieved of the loading representing post-importation expenses which, as a matter of business, must always be charged to the consumer, and which are eliminated.21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 = (AIR 1963 SC 791 ) ) Sec. 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profits and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4 (a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the the true position.22. The appellant contended that 22 per cent discount allowed under the agreements with the wholesale dealers was not trade discount, on the ground that there was no evidence to show that the discount allowed was trade discount within the meaning of the Explanation to Section 4. There was no contention by the appellants before the High Court that the discount allowed to the wholesale dealers was not trade discount. The whole argument before the High Court proceeded on the basis that direct sales by the respondent to consumers constituted the major portion of the sales and that the sales to the wholesale dealers only represented a minor portion and, therefore, the price charged for the sales to wholesale dealers would not represent the wholesale cash price of the articles sold. No data was placed before the High Court by the appellant to show that the 22% discount did not represent "trade discount for the purpose of the Explanation. A "trade discount" is a percentage deduction from the regular list or catalogue price of goods. As there was no case for the appellants that there was any secret arrangement between the wholesale dealers and the respondent in respect of the sales to them or that the price of the articles was under-stated in the agreements or that any extra-commercial advantages to the dealers were taken into account in fixing the price, we do not think that we should go into the question whether the discount allowed to the wholesale dealers was trade discount or not for the purpose of the Explanation. | 0 | 4,350 | 1,287 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the less the "wholesale cash price" for the purpose of Section 4 (a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business.20. The next question is: what exactly is the meaning of the term the "wholesale cash price"? In Vacuum Oil Co. v. Secretary of State for India in Council, 59 Ind App 258 = (AIR 1932 PC 168 ), it was held that the term means the price paid by retail traders on wholesale purchase. The essence of the idea is that the purchase must be a wholesale purchase and not a retail one. In other words, the sale must be wholesale and not a retail one in order that the price realised may be termed the "wholesale cash price". In that case the appellants before the Privy Council imported at Bombay, very large quantities of lubricating oil of a particular manufacture and mark. They sold it direct to numerous, customers, never to dealers. The price they charged was the same whether a large or small quantity was bought, except that if a consumer contracted to buy from them all his requirements for a year, he was entitled to a discount from 21/2 to 15 per cent according to the quantity bought in the year. No other lubricating oil of a like kind and quality was sold in Bombay. On the question whether the appellant was bound to pay customs duty on the basis of clause (a) or clause (b) of Section 30 of the Sea Customs Act, 1878, the Privy Council held that since the sales were to customers direct, the real value of the goods cannot be ascertained under clause (a) of Section 30 and that cl. (b) of Section 30 was applicable. Their Lordships said that in determining the price which is to represent the real value of the goods to be taxed, "the price must be conservative in every respect and free in particular from any loading for any post importation charges incurred in relation to the goods". "The price is to be a price for goods, as they are both at the time, and place of importation. It is to be a cash price, that is to say a price free from any augmentation for credit or other advantage allowed to a buyer it is to be a net price, that is to say it is a price less trade discount ". Their Lordships, therefore, held that the words the wholesale price were used in the section in contradistinction to a retail price, and that not only on the ground that such is a well-recognised meaning of the words but because their association with the words trade discount indicates that sales to the trade are those in contemplation, and alsod because only by attaching that meaning to the word is the wholesale price relieved of the loading representing post-importation expenses which, as a matter of business, must always be charged to the consumer, and which are eliminated.21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 = (AIR 1963 SC 791 ) ) Sec. 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profits and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4 (a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the the true position.22. The appellant contended that 22 per cent discount allowed under the agreements with the wholesale dealers was not trade discount, on the ground that there was no evidence to show that the discount allowed was trade discount within the meaning of the Explanation to Section 4. There was no contention by the appellants before the High Court that the discount allowed to the wholesale dealers was not trade discount. The whole argument before the High Court proceeded on the basis that direct sales by the respondent to consumers constituted the major portion of the sales and that the sales to the wholesale dealers only represented a minor portion and, therefore, the price charged for the sales to wholesale dealers would not represent the wholesale cash price of the articles sold. No data was placed before the High Court by the appellant to show that the 22% discount did not represent "trade discount for the purpose of the Explanation. A "trade discount" is a percentage deduction from the regular list or catalogue price of goods. As there was no case for the appellants that there was any secret arrangement between the wholesale dealers and the respondent in respect of the sales to them or that the price of the articles was under-stated in the agreements or that any extra-commercial advantages to the dealers were taken into account in fixing the price, we do not think that we should go into the question whether the discount allowed to the wholesale dealers was trade discount or not for the purpose of the Explanation.23
### Response:
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### Explanation:
the less the "wholesale cash price" for the purpose of Section 4 (a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business.20.The next question is: what exactly is the meaning of the term the "wholesale cashprice"? In Vacuum Oil Co. v. Secretary of State for India in Council, 59 Ind App 258 = (AIR 1932 PC 168 ), it was held that the term means the price paid by retail traders on wholesale purchase. The essence of the idea is that the purchase must be a wholesale purchase and not a retail one. In other words, the sale must be wholesale and not a retail one in order that the price realised may be termed the "wholesale cash price". In that case the appellants before the Privy Council imported at Bombay, very large quantities of lubricating oil of a particular manufacture and mark. They sold it direct to numerous, customers, never to dealers. The price they charged was the same whether a large or small quantity was bought, except that if a consumer contracted to buy from them all his requirements for a year, he was entitled to a discount from 21/2 to 15 per cent according to the quantity bought in the year. No other lubricating oil of a like kind and quality was sold in Bombay. On the question whether the appellant was bound to pay customs duty on the basis of clause (a) or clause (b) of Section 30 of the Sea Customs Act, 1878, the Privy Council held that since the sales were to customers direct, the real value of the goods cannot be ascertained under clause (a) of Section 30 and that cl. (b) of Section 30 was applicable. Their Lordships said that in determining the price which is to represent the real value of the goods to be taxed, "the price must be conservative in every respect and free in particular from any loading for any post importation charges incurred in relation to the goods". "The price is to be a price for goods, as they are both at the time, and place of importation. It is to be a cash price, that is to say a price free from any augmentation for credit or other advantage allowed to a buyer it is to be a net price, that is to say it is a price less trade discount ". Their Lordships, therefore, held that the words the wholesale price were used in the section in contradistinction to a retail price, and that not only on the ground that such is a well-recognised meaning of the words but because their association with the words trade discount indicates that sales to the trade are those in contemplation, and alsod because only by attaching that meaning to the word is the wholesale price relieved of the loading representing post-importation expenses which, as a matter of business, must always be charged to the consumer, and which are eliminated.21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 = (AIR 1963 SC 791 ) ) Sec. 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profits and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4 (a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the the true position.22. The appellant contended that 22 per cent discount allowed under the agreements with the wholesale dealers was not trade discount, on the ground that there was no evidence to show that the discount allowed was trade discount within the meaning of the Explanation to Section 4. There was no contention by the appellants before the High Court that the discount allowed to the wholesale dealers was not trade discount. The whole argument before the High Court proceeded on the basis that direct sales by the respondent to consumers constituted the major portion of the sales and that the sales to the wholesale dealers only represented a minor portion and, therefore, the price charged for the sales to wholesale dealers would not represent the wholesale cash price of the articles sold. No data was placed before the High Court by the appellant to show that the 22% discount did not represent "trade discount for the purpose of the Explanation. A "trade discount" is a percentage deduction from the regular list or catalogue price of goods. As there was no case for the appellants that there was any secret arrangement between the wholesale dealers and the respondent in respect of the sales to them or that the price of the articles was under-stated in the agreements or that any extra-commercial advantages to the dealers were taken into account in fixing the price, we do not think that we should go into the question whether the discount allowed to the wholesale dealers was trade discount or not for the purpose of the Explanation.
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State Bank of Travancore Vs. Mohammed Mohammed Khan | said so. We are not impressed by this submission. Section 2 (4) which defines a "debt" had to provide that debt means a liability due from or incurred by an agriculturist "on or before the commencement" of the Act. It could not be that liabilities incurred before the commencement of the Act would be "debts" even though they are not due on the date of commencement of the Act. The words "on or before the commencement" of the Act are used in the context of liabilities "due from or incurred" by an agriculturist. For similar reasons, clause (j) had to use the expression "at the commencement" of the Act, the subje ct matter of that clause being debts due to widows. The benefit of the exclusion provided for in clause (j) could only be given to widows to whom debts were due "at the commencement" of the Act. The legislature could not have given that benefit in respect of debts which were due before but not at the commencement of the Act. Thus, the language used in the two provisionals on which the learned Attorney General relies is suited to the particular subject matter with which those provisions deal and is apposite to the context in which that language is used. We have given to the provision of clause (1) an interpretation which, while giving effect to the intention of the legislature in the light of the object of the Act, brings out the tru e meaning of the provision contained in that clause. The literal construction will create an anomalous situation and lead to absurdidities and injustice. That construction has therefore to be avoided.21. Any other interpretation of clause (1) w ill make it vulnerable to a constitutional challenge on the ground of infraction of the guarantee of equality. The object of the Act being to confer certain benefits on agricultural debtors, the legislature would be under an obligation, while excepting a certain category of debts from the operation of the Act, to make a classification which will answer the test of article 14. Debts incurred from banking companies and due to such companies at the commencement of the Act would fall into a separate and distinct class, the classification bearing a nexus with A the object of the Act. If debts incurred from private money-lenders are brought within the terms of clause (1) on the theory that the right to recover the debt had passed on t o a banking company sometime before the commencement of the Act, the clause would be unconstitutional for the reason that it accords a different treatment to a category of debts without a valid basis and without the classification having a nexus with the object of the Act.22. In State of Rajasthan v. Mukanchand section 2 (e) of Jagirdars Debt Reduction Act, 1937 was held invalid on the ground that it infringed Article 14 of the Constitution. The object of that Act was to re duce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. It was held that no intelligible principle underlies the exempted category of debts mentioned in section 2(e) since the fact that the debts were owed to a government or to a local authority or similar other bodies, had no real relationship with the object sought to be achieved by the Act. In Fatehand Himmatlal v. Slate of Maharashtra, in which the constitutionality of the Maharashtra Debt Relief Act, 1976 was challenged, it was held by this Court that the exemption granted by the statute to credit institutions and banks was reasonable because liabilities due to Government, local authorities and other credit institutions were not tainted by the view of the debtors exploitation. Fatehchand would be an authority for the proposition that clause (1), in the manner interpreted by us, does not violate Article 14 of the Constitution.23. Shri Vaidyanathan, who appears on behalf of the respondent, contended that the claim made by the appellant Bank falls squarely under section 2 (4) (a) (ii) of the Act and that if the appellant is not entitled to the benefit of the specific provision contained therein, it is impermissible to consider whether it can cl aim the benefit of some other exclusionary clause like clause (1). Counsel is right to the extent that the appellant is not entitled to claim the benefit of the provision contained in section 2 (4)(a)(ii) because of Proviso B to that section. The simple reason in support of this conclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to July 1, 1957. We have already dealt with that aspect of the matter. But we are no t inclined to accept the submission that if a particular case falls under a specific clause of section 2 (4) which is found to be inapplicable, the creditor is debarred from claiming the benefit of any of the other clauses (a) to (n). The obje ct of the exclusionary clauses is to take category of debts from out of the operation of the Act and there is no reason why, if a specific clause is inapplicable, the creditor cannot seek the benefit of the other clauses. The exclusiona ry clauses, together, are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the Act. We are not therefore, inclined to accept the submission made by the learned counsel that section 2 (4) (a) (ii) is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 (4 ).24. | 0[ds]As stated above, the respondent is admittedly an agriculturist and he owes a sum of money to the appellant Bank under a decree passed in its favour by the Sub-Court, Meenacil, in O.S. No. 28 of 1963. The liability which the respondent owes to the appellant Bank is therefore a "debt" within the meaning of section 2 (4) of the Act. But certain liabilities are excluded from the ambit of the definition of "Debt". The liabilities which are thus excluded from the definition of debt are specified in clauses (a) to (n) of section 2 (4). W e are concerned in this appeal with the liabilities specified in clause (a) (ii) and clause (1) of section 2 (4), which are excluded from the operation of clause 2 (4). We will first consider the implications of the exclusion provided for in sub-clause (ii) of clause (a) of section 2 (4). Under the aforesaid sub-clause, any sum payable to a subsidiary bank within the meaning of section 2 (k) ofe Bank of India(Subsidiary Banks) Act, 1959, is excluded from the definition of "debt". Section 2 (k) of the Act of 1959 defines a "subsidiary bank" to mean any new bank, including the Hyderabad Bank and the Saurashtra Bank. The expression "new bank" is defined in section 2 (f) of the Act of 1959 to mean any o f the banks constituted under section 3. Section 3 provides that with effect from such date, as the Central Government may specify, there shall be constituted the new banks specified in the section. Clause (f) of section 3 mentions theState Bank ofTravancore amongst the new banks which may be constituted under section 3. It is thus clear that the appellant Bank, namely, theState Bank ofTravancore, is a subsidiary bank as contemplated by sub- clause (ii) of clause (a) of section 2 (4) of the Act. If the matter were to rest there, the decretal amount payable by the respondent to the appellant Bank will not be a debt within the meaning of section 2 (4) of the Act, since the appellant is a subsidiary bank within the meaning of section 2 (k) ofe Bank of India(Subsidiary Banks) Act, 1959. But by reason of clause (B) of the proviso to section 2 (4) (a) (ii) of the Act, the amount payable to a subsidiary bank is not to be regarded as a debt within t he meaning of the Act, only if the right of the subsidiary bank to recover the amount did not arise by reason of any transfer effected by operation of law subsequent to July 1, 1957. The proviso is thus in the nature of an exception to the exceptions contained in section 2 (4) (a) (ii) of theAbdul Khader, who appears on behalf of the appellant conceded before us that it is not a banking company. The concession is rightly made, since according to section 2(2) of the Act, Banking Company mea ns a banking company as defined inthe Banking Regulation Act, 1949. Section S(c) of the Act of 1949 defines a banking company to mean any Company which transacts the business of banking in India (subject to the provision contained in the Explanation to the section). Thus, in order that a bank may be a banking company, it is in the first place necessary that it must be a "company". TheState Bank ofTravancore, which is the appellant before us, is not a company properly so called. It is a subsidiary bank which falls within the definition of section 2(k) ofe Bank of India(Subsidiary Banks) Act, 1959. It was established by the Central Government in accordance with the Act of 1959 and is not a company and therefore, not a banking company. It must follow that the decretal debt which the respondent is liable to pay to the appellant is not owed to a banking company. It was indeed not owed to any banking company at all on July 14, 1970, being the date on which the Act came into force. It may be recalled that the respondent owed a certain sum exceeding three thousand rupees to the Kottayam Orient Bank Ltd., a banking company, on an overdraft account. That Bank was amalgamated with the appellant Bank with effect from May 16, 1961, as a result of which the latter acquired the right to recover the amount from the respondent. It filed Suit No. 28 of 1963 to recover that amount and obtained a decree against the respondent.It is precisely this small conspectus of facts, namely, that the amount was at one time owed to a banking company but was not owed to a banking company at the commencement of the Act, which raises the question as regards the true interpretation of clause (1) of section 2order to judge the validity of the submission mad e by the Attorney General, one must of necessity have regard to the object and purpose of the Act. The object of the Act is to relieve agricultural indebtedness. In order to achieve that object, the legislature conferred certain benefits on agricultural debtors but, while doing so, it excluded a class of debts from the operation of the Act, namely, debts of the description mentioned in clauses (a) to (n) of section 2(4). One class of debts taken out from the operation of t he Act is debts owed to banking companies, as specified in clause (1). The reason for this exception is obvious. It is notorious that money lenders exploit needy agriculturists and impose upon them harsh and onerous terms while granting loans to them. But that charge does not hold true in the case of representative institutions, like banks and banking companies. They are governed by their rules and regulations which do not change from debtor to debtor and which, if any thing, are intended to benefit the weaker sections of society. It is for this reason that debts owing to such creditors are excepted from the operation of thenecessary implication and an inevitable consequence of the Attorney Generals argument is that in order to attract the application of clause (1) of section 2 (4), it is enough to show that the debt was, at some time before the commencement of the Act, owed to a banking company; it does not matter whether it was in its inception owed to a private money-lender and, equally so, whether it was owed to such a money-lender on the date of the commencement of the Act. This argument, if accepted, will defeat the very object of the Act. The sole test which assumes relevance according to that argument is whether the debt was owed, at any time before the commencement of the Act, to a banking company. It means that it is enough for the purpose of attracting clause (1) that, at some time in the past, may be in a chain of transfers, the right to recover the debt was vested in a banking company. A simple illustration will elucidate the point. If a private money-lender had initially granted a loan to an agricultural debtor on usurious terms but the right to recover that debt came to be vested in a banking company some time before the commencement of the Act, the debtor will not be able to avail himself of the benefit of the provisions of the Act because, at some point of time before the commencement of the Act, the debt was owed to a banking company. And this would be so irrespective of whether the banking company continues to be entitled to recover the debt on the date of the commencement of the Act. Even if it assigns its right to a private individual, the debtor will be debarred from claiming the benefit of the Act because, what is of decisive importance, according to the Attorney Generals argument is the fact whether, some time before the commencement of the Act, the debt was due to a banking company. We do not think the Legislature could have intended to produce such a startlingplain language of the clause, if interpreted so plainly, will frustrate rather than further the object of the Act. Relief t o agricultural debtors, who have suffered the oppression of private moneylenders, has to be the guiding star which must illumine and inform the interpretation of the beneficent provisions of the Act. When clause (1) speaks of a debt du e "before the commencement" of the Act to a banking company, it does undoubtedly mean what it says, namely, that the debt must have been due to a banking company before the commencement of the Act. But it means something more: that the debt mus t also be due to a banking company at the commencement of the Act. We quite see that we are reading into the clause the word "at" which is not there because, whereas it speaks of a debt due "before" the commencement of the Act, we are reading the cla use as relating to a debt which was due "at" and "before" the commencement of the Act to any banking company. We would have normally hesitated to fashion the clause by so restructuring it but we see no escape from that course, since that is the only rational manner by which we can give meaning and content to it, so as to further the object of theVaidyanathan, who appears on behalf of the respondent, contended that the claim made by the appellant Bank falls squarely under section 2 (4) (a) (ii) of the Act and that if the appellant is not entitled to the benefit of the specific provision contained therein, it is impermissible to consider whether it can cl aim the benefit of some other exclusionary clause like clause (1). Counsel is right to the extent that the appellant is not entitled to claim the benefit of the provision contained in section 2 (4)(a)(ii) because of Proviso B to that section. The simple reason in support of this conclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to July 1, 1957.We have already dealt with that aspect of the matter. But we are no t inclined to accept the submission that if a particular case falls under a specific clause of section 2 (4) which is found to be inapplicable, the creditor is debarred from claiming the benefit of any of the other clauses (a) to (n). The obje ct of the exclusionary clauses is to take category of debts from out of the operation of the Act and there is no reason why, if a specific clause is inapplicable, the creditor cannot seek the benefit of the other clauses. The exclusiona ry clauses, together, are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the Act. We are not therefore, inclined to accept the submission made by the learned counsel that section 2 (4) (a) (ii) is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 (4 ). | 0 | 5,461 | 2,174 | ### Instruction:
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said so. We are not impressed by this submission. Section 2 (4) which defines a "debt" had to provide that debt means a liability due from or incurred by an agriculturist "on or before the commencement" of the Act. It could not be that liabilities incurred before the commencement of the Act would be "debts" even though they are not due on the date of commencement of the Act. The words "on or before the commencement" of the Act are used in the context of liabilities "due from or incurred" by an agriculturist. For similar reasons, clause (j) had to use the expression "at the commencement" of the Act, the subje ct matter of that clause being debts due to widows. The benefit of the exclusion provided for in clause (j) could only be given to widows to whom debts were due "at the commencement" of the Act. The legislature could not have given that benefit in respect of debts which were due before but not at the commencement of the Act. Thus, the language used in the two provisionals on which the learned Attorney General relies is suited to the particular subject matter with which those provisions deal and is apposite to the context in which that language is used. We have given to the provision of clause (1) an interpretation which, while giving effect to the intention of the legislature in the light of the object of the Act, brings out the tru e meaning of the provision contained in that clause. The literal construction will create an anomalous situation and lead to absurdidities and injustice. That construction has therefore to be avoided.21. Any other interpretation of clause (1) w ill make it vulnerable to a constitutional challenge on the ground of infraction of the guarantee of equality. The object of the Act being to confer certain benefits on agricultural debtors, the legislature would be under an obligation, while excepting a certain category of debts from the operation of the Act, to make a classification which will answer the test of article 14. Debts incurred from banking companies and due to such companies at the commencement of the Act would fall into a separate and distinct class, the classification bearing a nexus with A the object of the Act. If debts incurred from private money-lenders are brought within the terms of clause (1) on the theory that the right to recover the debt had passed on t o a banking company sometime before the commencement of the Act, the clause would be unconstitutional for the reason that it accords a different treatment to a category of debts without a valid basis and without the classification having a nexus with the object of the Act.22. In State of Rajasthan v. Mukanchand section 2 (e) of Jagirdars Debt Reduction Act, 1937 was held invalid on the ground that it infringed Article 14 of the Constitution. The object of that Act was to re duce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. It was held that no intelligible principle underlies the exempted category of debts mentioned in section 2(e) since the fact that the debts were owed to a government or to a local authority or similar other bodies, had no real relationship with the object sought to be achieved by the Act. In Fatehand Himmatlal v. Slate of Maharashtra, in which the constitutionality of the Maharashtra Debt Relief Act, 1976 was challenged, it was held by this Court that the exemption granted by the statute to credit institutions and banks was reasonable because liabilities due to Government, local authorities and other credit institutions were not tainted by the view of the debtors exploitation. Fatehchand would be an authority for the proposition that clause (1), in the manner interpreted by us, does not violate Article 14 of the Constitution.23. Shri Vaidyanathan, who appears on behalf of the respondent, contended that the claim made by the appellant Bank falls squarely under section 2 (4) (a) (ii) of the Act and that if the appellant is not entitled to the benefit of the specific provision contained therein, it is impermissible to consider whether it can cl aim the benefit of some other exclusionary clause like clause (1). Counsel is right to the extent that the appellant is not entitled to claim the benefit of the provision contained in section 2 (4)(a)(ii) because of Proviso B to that section. The simple reason in support of this conclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to July 1, 1957. We have already dealt with that aspect of the matter. But we are no t inclined to accept the submission that if a particular case falls under a specific clause of section 2 (4) which is found to be inapplicable, the creditor is debarred from claiming the benefit of any of the other clauses (a) to (n). The obje ct of the exclusionary clauses is to take category of debts from out of the operation of the Act and there is no reason why, if a specific clause is inapplicable, the creditor cannot seek the benefit of the other clauses. The exclusiona ry clauses, together, are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the Act. We are not therefore, inclined to accept the submission made by the learned counsel that section 2 (4) (a) (ii) is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 (4 ).24.
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One class of debts taken out from the operation of t he Act is debts owed to banking companies, as specified in clause (1). The reason for this exception is obvious. It is notorious that money lenders exploit needy agriculturists and impose upon them harsh and onerous terms while granting loans to them. But that charge does not hold true in the case of representative institutions, like banks and banking companies. They are governed by their rules and regulations which do not change from debtor to debtor and which, if any thing, are intended to benefit the weaker sections of society. It is for this reason that debts owing to such creditors are excepted from the operation of thenecessary implication and an inevitable consequence of the Attorney Generals argument is that in order to attract the application of clause (1) of section 2 (4), it is enough to show that the debt was, at some time before the commencement of the Act, owed to a banking company; it does not matter whether it was in its inception owed to a private money-lender and, equally so, whether it was owed to such a money-lender on the date of the commencement of the Act. This argument, if accepted, will defeat the very object of the Act. The sole test which assumes relevance according to that argument is whether the debt was owed, at any time before the commencement of the Act, to a banking company. It means that it is enough for the purpose of attracting clause (1) that, at some time in the past, may be in a chain of transfers, the right to recover the debt was vested in a banking company. A simple illustration will elucidate the point. If a private money-lender had initially granted a loan to an agricultural debtor on usurious terms but the right to recover that debt came to be vested in a banking company some time before the commencement of the Act, the debtor will not be able to avail himself of the benefit of the provisions of the Act because, at some point of time before the commencement of the Act, the debt was owed to a banking company. And this would be so irrespective of whether the banking company continues to be entitled to recover the debt on the date of the commencement of the Act. Even if it assigns its right to a private individual, the debtor will be debarred from claiming the benefit of the Act because, what is of decisive importance, according to the Attorney Generals argument is the fact whether, some time before the commencement of the Act, the debt was due to a banking company. We do not think the Legislature could have intended to produce such a startlingplain language of the clause, if interpreted so plainly, will frustrate rather than further the object of the Act. Relief t o agricultural debtors, who have suffered the oppression of private moneylenders, has to be the guiding star which must illumine and inform the interpretation of the beneficent provisions of the Act. When clause (1) speaks of a debt du e "before the commencement" of the Act to a banking company, it does undoubtedly mean what it says, namely, that the debt must have been due to a banking company before the commencement of the Act. But it means something more: that the debt mus t also be due to a banking company at the commencement of the Act. We quite see that we are reading into the clause the word "at" which is not there because, whereas it speaks of a debt due "before" the commencement of the Act, we are reading the cla use as relating to a debt which was due "at" and "before" the commencement of the Act to any banking company. We would have normally hesitated to fashion the clause by so restructuring it but we see no escape from that course, since that is the only rational manner by which we can give meaning and content to it, so as to further the object of theVaidyanathan, who appears on behalf of the respondent, contended that the claim made by the appellant Bank falls squarely under section 2 (4) (a) (ii) of the Act and that if the appellant is not entitled to the benefit of the specific provision contained therein, it is impermissible to consider whether it can cl aim the benefit of some other exclusionary clause like clause (1). Counsel is right to the extent that the appellant is not entitled to claim the benefit of the provision contained in section 2 (4)(a)(ii) because of Proviso B to that section. The simple reason in support of this conclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to July 1, 1957.We have already dealt with that aspect of the matter. But we are no t inclined to accept the submission that if a particular case falls under a specific clause of section 2 (4) which is found to be inapplicable, the creditor is debarred from claiming the benefit of any of the other clauses (a) to (n). The obje ct of the exclusionary clauses is to take category of debts from out of the operation of the Act and there is no reason why, if a specific clause is inapplicable, the creditor cannot seek the benefit of the other clauses. The exclusiona ry clauses, together, are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the Act. We are not therefore, inclined to accept the submission made by the learned counsel that section 2 (4) (a) (ii) is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 (4 ).
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Ram Bharosey Lal Krishan Kumar Vs. State of U.P | goods specified therein, sales tax not exceeding the maximum rate for the time being specified in s. 15 of the Central Sales Tax Act, 1956 can be levied by the State Government on the turnover in respect of sales by dealers to the consumers. From an analysis of this provision, we get the following :1. that tax to be levied is a sales tax;2. levy in question is a single point levy;3. the point of levy is the sale by the dealer to the consumer and4. the rate to be fixed by the State Government is not to exceed the maximum rate for the time being specified in sec. 15 of the Central Sales Tax Act. 1956.10. If we hold that provisions contained in s. 3AA continue to be in force in respect of dealing in oil seeds than the appellants contention that the impugned levy is an invalid levy succeeds. But the question is whether that contention is correct.11. This takes us to s. 3-D. That section reads :"1. Except as provided in sub-section (2), there shall be levied and paid, for each assessment year or part thereof, a tax on the turnover, to be determined in such manner as may be prescribed, of first purchases made by a dealer or through a dealer, acting as a purchasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paisa per rupee in the case of foodgrains, including cereals and pulses, and five paisa per rupee in the case of other goods and with effect from such date, as may, from time to time, be notified by the State Government in this behalf.Explanation :- In the case of a purchase made by a registered dealer through the agency of a licensed dealer, the registered dealer shall be deemed to be the first purchaser, and in every other case of a first purchase, made through the agency of a dealer, the dealer who is the agent shall be deemed to be the first purchaser.2. x x x3. x x x4. On the issue of a notification under this section no tax shall be levied under any other section in respect of the goods so notified.5. The provision of the second and third proviso to Section 3 and of Section 18, shall mutatis mutandis apply in relation to the tax payable under this Section.6. x x x7. Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchase by or through a dealer shall, for the purposes of sub-section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub-section (2), be presumed to be sale to a first purchaser."12. For our present purpose, it is not necessary to refer to the second and third provisos to s. 3 and s. 18. It may be noted that s. 3-D was incorporated into the Act on August 1, 1958.13. The contention on behalf of the appellant was that s. 3 AA is a special provision regarding certain specified class of goods including oil seeds whereas S. 3-D is a general provision. Hence dealings in respect of oil seeds must be held to be governed exclusively by s. 3AA. In support of his contention the learned for the appellant called into aid the rule of construction that a special provision excludes the application of a general provision. On the other hand, it was contended on behalf of the Revenue that power was conferred on the State Government to levy purchase tax in place of sales tax in respect of any goods that may be notified under s. 3-D (1) subject only to the conditions mentioned therein. According to Dr. Singhvi, learned Counsel for the Revenue, the legislature left the questions whether in respect of a class of goods, the appropriate levy is sales tax or purchase tax as well as what is the appropriate point of levy, to the State Government because a decision on that question has to be taken on an assessment of various factors, some of which are not constant. According to him in view of the language employed in sub-s. (4) of s. 3-D, it is not possible to apply the rule of construction that special legislation in respect of any particular topic should exclude the application of general legislation.14. It may be noted that s. 3-D was incorporated into the Act much later than s. 3AA. As seen earlier s. 3AA was incorporated into the Act on April 1, 1956 whereas s. 3-D was added on August 1, 1958. At the time the legislature incorporated into the Act sec. 3-D. it must have been aware of the existence of sec. 3AA but yet in sub-s. (4) of s. 3-D, it declared that on the issue of a notification under that section, no tax shall be levied under any other section in respect of the goods so notified. The ambit of this provision is very wide and it clearly takes in goods mentioned in sec. 3AA.15. Now turning to s. 3AA, it is important to note that it begins by saying "notwithstanding anything contained in section 3 or 3-A". The non-obstents clause does not take in s. 3-D. If the legislature intended to exclude the operation of s. 3-D, in respect of matters covered by s. 3AA, nothing would have been easier than to say so. It could have said "notwithstanding anything contained in s. 3, 3-A and s. 3-D." But it did not choose to do that. Therefore there are no grounds to cut down the applitude of the power conferred on the State Government under sub-sec. (4) of Sec. 3-D.16. The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under sec. 3-D even in respect of goods covered by sec. 3AA. We are in agreement with that view. | 0[ds]14. It may be noted that s. 3-D was incorporated into the Act much later than s. 3AA. As seen earlier s. 3AA was incorporated into the Act on April 1, 1956 whereas s. 3-D was added on August 1, 1958. At the time the legislature incorporated into the Act sec. 3-D. it must have been aware of the existence of sec. 3AA but yet in sub-s. (4) of s. 3-D, it declared that on the issue of a notification under that section, no tax shall be levied under any other section in respect of the goods so notified. The ambit of this provision is very wide and it clearly takes in goods mentioned in sec. 3AA.15. Now turning to s. 3AA, it is important to note that it begins by saying "notwithstanding anything contained in section 3 or 3-A". The non-obstents clause does not take in s. 3-D. If the legislature intended to exclude the operation of s. 3-D, in respect of matters covered by s. 3AA, nothing would have been easier than to say so. It could have said "notwithstanding anything contained in s. 3, 3-A and s. 3-D." But it did not choose to do that. Therefore there are no grounds to cut down the applitude of the power conferred on the State Government under sub-sec. (4) of Sec. 3-D.16. The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under sec. 3-D even in respect of goods covered by sec. 3AA. We are in agreement with that view.We have considered the first ground of attack in Civil Appeals Nos. 362 and 1969 (M/s. Sita Ram Bishambhar Dayal etc. vs. State of U.P.) in which we have delivered judgment just now. For the reasons mentioned therein, the contention that sec.(1) is ultra vires the Constitution fails.If we hold that provisions contained in s. 3AA continue to be in force in respect of dealing in oil seeds than the appellants contention that the impugned levy is an invalid levy succeeds. But the question is whether that contention is correct. | 0 | 1,984 | 410 | ### Instruction:
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goods specified therein, sales tax not exceeding the maximum rate for the time being specified in s. 15 of the Central Sales Tax Act, 1956 can be levied by the State Government on the turnover in respect of sales by dealers to the consumers. From an analysis of this provision, we get the following :1. that tax to be levied is a sales tax;2. levy in question is a single point levy;3. the point of levy is the sale by the dealer to the consumer and4. the rate to be fixed by the State Government is not to exceed the maximum rate for the time being specified in sec. 15 of the Central Sales Tax Act. 1956.10. If we hold that provisions contained in s. 3AA continue to be in force in respect of dealing in oil seeds than the appellants contention that the impugned levy is an invalid levy succeeds. But the question is whether that contention is correct.11. This takes us to s. 3-D. That section reads :"1. Except as provided in sub-section (2), there shall be levied and paid, for each assessment year or part thereof, a tax on the turnover, to be determined in such manner as may be prescribed, of first purchases made by a dealer or through a dealer, acting as a purchasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paisa per rupee in the case of foodgrains, including cereals and pulses, and five paisa per rupee in the case of other goods and with effect from such date, as may, from time to time, be notified by the State Government in this behalf.Explanation :- In the case of a purchase made by a registered dealer through the agency of a licensed dealer, the registered dealer shall be deemed to be the first purchaser, and in every other case of a first purchase, made through the agency of a dealer, the dealer who is the agent shall be deemed to be the first purchaser.2. x x x3. x x x4. On the issue of a notification under this section no tax shall be levied under any other section in respect of the goods so notified.5. The provision of the second and third proviso to Section 3 and of Section 18, shall mutatis mutandis apply in relation to the tax payable under this Section.6. x x x7. Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchase by or through a dealer shall, for the purposes of sub-section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub-section (2), be presumed to be sale to a first purchaser."12. For our present purpose, it is not necessary to refer to the second and third provisos to s. 3 and s. 18. It may be noted that s. 3-D was incorporated into the Act on August 1, 1958.13. The contention on behalf of the appellant was that s. 3 AA is a special provision regarding certain specified class of goods including oil seeds whereas S. 3-D is a general provision. Hence dealings in respect of oil seeds must be held to be governed exclusively by s. 3AA. In support of his contention the learned for the appellant called into aid the rule of construction that a special provision excludes the application of a general provision. On the other hand, it was contended on behalf of the Revenue that power was conferred on the State Government to levy purchase tax in place of sales tax in respect of any goods that may be notified under s. 3-D (1) subject only to the conditions mentioned therein. According to Dr. Singhvi, learned Counsel for the Revenue, the legislature left the questions whether in respect of a class of goods, the appropriate levy is sales tax or purchase tax as well as what is the appropriate point of levy, to the State Government because a decision on that question has to be taken on an assessment of various factors, some of which are not constant. According to him in view of the language employed in sub-s. (4) of s. 3-D, it is not possible to apply the rule of construction that special legislation in respect of any particular topic should exclude the application of general legislation.14. It may be noted that s. 3-D was incorporated into the Act much later than s. 3AA. As seen earlier s. 3AA was incorporated into the Act on April 1, 1956 whereas s. 3-D was added on August 1, 1958. At the time the legislature incorporated into the Act sec. 3-D. it must have been aware of the existence of sec. 3AA but yet in sub-s. (4) of s. 3-D, it declared that on the issue of a notification under that section, no tax shall be levied under any other section in respect of the goods so notified. The ambit of this provision is very wide and it clearly takes in goods mentioned in sec. 3AA.15. Now turning to s. 3AA, it is important to note that it begins by saying "notwithstanding anything contained in section 3 or 3-A". The non-obstents clause does not take in s. 3-D. If the legislature intended to exclude the operation of s. 3-D, in respect of matters covered by s. 3AA, nothing would have been easier than to say so. It could have said "notwithstanding anything contained in s. 3, 3-A and s. 3-D." But it did not choose to do that. Therefore there are no grounds to cut down the applitude of the power conferred on the State Government under sub-sec. (4) of Sec. 3-D.16. The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under sec. 3-D even in respect of goods covered by sec. 3AA. We are in agreement with that view.
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14. It may be noted that s. 3-D was incorporated into the Act much later than s. 3AA. As seen earlier s. 3AA was incorporated into the Act on April 1, 1956 whereas s. 3-D was added on August 1, 1958. At the time the legislature incorporated into the Act sec. 3-D. it must have been aware of the existence of sec. 3AA but yet in sub-s. (4) of s. 3-D, it declared that on the issue of a notification under that section, no tax shall be levied under any other section in respect of the goods so notified. The ambit of this provision is very wide and it clearly takes in goods mentioned in sec. 3AA.15. Now turning to s. 3AA, it is important to note that it begins by saying "notwithstanding anything contained in section 3 or 3-A". The non-obstents clause does not take in s. 3-D. If the legislature intended to exclude the operation of s. 3-D, in respect of matters covered by s. 3AA, nothing would have been easier than to say so. It could have said "notwithstanding anything contained in s. 3, 3-A and s. 3-D." But it did not choose to do that. Therefore there are no grounds to cut down the applitude of the power conferred on the State Government under sub-sec. (4) of Sec. 3-D.16. The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under sec. 3-D even in respect of goods covered by sec. 3AA. We are in agreement with that view.We have considered the first ground of attack in Civil Appeals Nos. 362 and 1969 (M/s. Sita Ram Bishambhar Dayal etc. vs. State of U.P.) in which we have delivered judgment just now. For the reasons mentioned therein, the contention that sec.(1) is ultra vires the Constitution fails.If we hold that provisions contained in s. 3AA continue to be in force in respect of dealing in oil seeds than the appellants contention that the impugned levy is an invalid levy succeeds. But the question is whether that contention is correct.
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N. C. Mukherjee and Company Vs. Union of India, and Others (And Others Writ Petitions) | SUBBA RAO C.J. 1. These four appeals by certificate granted by the High Court of Calcutta are filed against the common judgment and order of that court in four civil revision cases arising but of the proceedings under the Excess Profits Tax Act, 1940 (Act XV of 1940) The facts may be briefly stated. The appellant was a registered firm with four partners. For the accounting years ending with March 31 of the years 1942, 1943, 1944 and 1945 the said firm was assessed to excess profits tax. Under notice dated September 3, 1954, the firm was directed to pay large amounts in respect of the said four years as excess profits tax by September 25, 1954. On March 12, 1956, the concerned Income-tax Officer forwarded four certificates to the Certificate Officer and Additional District Magistrate, 24-Parganas, for the recovery of the said amounts from the firm. On December 20, 1956, the Certificate Officer issued notice to the firm under section 7 of the Bengal Public Demands Recovery Act, 1913 (Act III of 1913), hereinafter called " the Act ", for the payment of the said amounts of tax. The firm filed objections under section 9 of the Act denying its liability to pay the amounts demanded from it. It also raised other objections with which we are not now concerned. The Certificate Officer rejected the objections. Against the said order of the Certificate Officer, the appellant firm preferred appeals under section 51 of the Act to the Commissioner, Presidency Division. The said Commissioner on April 18, 1958, dismissed the said appeals. Revision petitions filed by the firm to the Board of Revenue were rejected on April 21, 1960. The petitions filed by the firm against the orders of the Board of Revenue in the High Court under article 226 of the Constitution were dismissed on September 26, 1962. Hence the present appealsMr. Sen, learned counsel for the appellant firm, raised before us constitutional and legal objections questioning the validity of the proceedings under the Act. But on an indication of the order we would be making in the appeals he withdrew them. Nothing, therefore, need be said about them. 2. On July 23, 1958, the concerned Income-tax Officer wrote to the Certificate Officer and Additional District Magistrate, 24-Parganas, in reply to his letter dated June 12, 1958, as follows: " Apparently it appears that the partners of the above firm are entitled to a considerable sum of refund. However, due to the complicated nature of the cases, it will require a long time for its verification In the meantime, Certificate Officer may be requested to keep the proceedings pending. " Again on July 30, 1958, the concerned Income-tax Officer wrote to the Certificate Officer thus: " As the partners of the above C. Dr. (Certificate Debtor) are entitled to heavy refunds the collection proceedings in the above certificate cases may kindly be stayed. You will be informed as soon as the matter is finalised." When the question of adjustment was raised before the Board of Revenue, it observed " This is really a matter for the taxing authorities. The certificate court cannot enter into this question. " When the point was again pressed before the High Court, it observed " In view of section 48(2) of the Indian Income-tax Act, 1922, read with section 21 of the Excess Profits Tax Act, the finality of the assessment to excess profits tax is not affected by the pending proceedings for refund." Yet, it proceeded to observe " On behalf of the Union of India, Mr. Pal has assured us that the department still adheres to the stand taken in the two letters. It is to be observed that while the department should be free to take all steps to see that execution of the certificates is not barred by limitation, immediate steps should be taken for the completion of the pending refund proceedings, if any, so that the moneys, if any, due to the petitioner-firm on account of refund may be ascertained and the refund order, if any, of the petitioner-firm or its partners may be speedily issued. " 3. Learned counsel for the respondents did not retract from the said position. But, though the High Court delivered the judgment as early as on September 26, 1962, and more than 4 years passed by, nothing seems to have been done by the concerned Income-tax Officer to ascertain the amounts refundable to the firm or its partners. We think that justice demands that before the Certificate Officer executes the demand against the appellant-firm, amounts refundable to it or its partners should be ascertained by the concerned Income-tax Officer so that the demand may be executed only for the balance. | 0[ds]3. Learned counsel for the respondents did not retract from the said position. But, though the High Court delivered the judgment as early as on September 26, 1962, and more than 4 years passed by, nothing seems to have been done by the concerned Income-tax Officer to ascertain the amounts refundable to the firm or its partners. We think that justice demands that before the Certificate Officer executes the demand against the appellant-firm, amounts refundable to it or its partners should be ascertained by the concerned Income-tax Officer so that the demand may be executed only for the balance. | 0 | 886 | 112 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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SUBBA RAO C.J. 1. These four appeals by certificate granted by the High Court of Calcutta are filed against the common judgment and order of that court in four civil revision cases arising but of the proceedings under the Excess Profits Tax Act, 1940 (Act XV of 1940) The facts may be briefly stated. The appellant was a registered firm with four partners. For the accounting years ending with March 31 of the years 1942, 1943, 1944 and 1945 the said firm was assessed to excess profits tax. Under notice dated September 3, 1954, the firm was directed to pay large amounts in respect of the said four years as excess profits tax by September 25, 1954. On March 12, 1956, the concerned Income-tax Officer forwarded four certificates to the Certificate Officer and Additional District Magistrate, 24-Parganas, for the recovery of the said amounts from the firm. On December 20, 1956, the Certificate Officer issued notice to the firm under section 7 of the Bengal Public Demands Recovery Act, 1913 (Act III of 1913), hereinafter called " the Act ", for the payment of the said amounts of tax. The firm filed objections under section 9 of the Act denying its liability to pay the amounts demanded from it. It also raised other objections with which we are not now concerned. The Certificate Officer rejected the objections. Against the said order of the Certificate Officer, the appellant firm preferred appeals under section 51 of the Act to the Commissioner, Presidency Division. The said Commissioner on April 18, 1958, dismissed the said appeals. Revision petitions filed by the firm to the Board of Revenue were rejected on April 21, 1960. The petitions filed by the firm against the orders of the Board of Revenue in the High Court under article 226 of the Constitution were dismissed on September 26, 1962. Hence the present appealsMr. Sen, learned counsel for the appellant firm, raised before us constitutional and legal objections questioning the validity of the proceedings under the Act. But on an indication of the order we would be making in the appeals he withdrew them. Nothing, therefore, need be said about them. 2. On July 23, 1958, the concerned Income-tax Officer wrote to the Certificate Officer and Additional District Magistrate, 24-Parganas, in reply to his letter dated June 12, 1958, as follows: " Apparently it appears that the partners of the above firm are entitled to a considerable sum of refund. However, due to the complicated nature of the cases, it will require a long time for its verification In the meantime, Certificate Officer may be requested to keep the proceedings pending. " Again on July 30, 1958, the concerned Income-tax Officer wrote to the Certificate Officer thus: " As the partners of the above C. Dr. (Certificate Debtor) are entitled to heavy refunds the collection proceedings in the above certificate cases may kindly be stayed. You will be informed as soon as the matter is finalised." When the question of adjustment was raised before the Board of Revenue, it observed " This is really a matter for the taxing authorities. The certificate court cannot enter into this question. " When the point was again pressed before the High Court, it observed " In view of section 48(2) of the Indian Income-tax Act, 1922, read with section 21 of the Excess Profits Tax Act, the finality of the assessment to excess profits tax is not affected by the pending proceedings for refund." Yet, it proceeded to observe " On behalf of the Union of India, Mr. Pal has assured us that the department still adheres to the stand taken in the two letters. It is to be observed that while the department should be free to take all steps to see that execution of the certificates is not barred by limitation, immediate steps should be taken for the completion of the pending refund proceedings, if any, so that the moneys, if any, due to the petitioner-firm on account of refund may be ascertained and the refund order, if any, of the petitioner-firm or its partners may be speedily issued. " 3. Learned counsel for the respondents did not retract from the said position. But, though the High Court delivered the judgment as early as on September 26, 1962, and more than 4 years passed by, nothing seems to have been done by the concerned Income-tax Officer to ascertain the amounts refundable to the firm or its partners. We think that justice demands that before the Certificate Officer executes the demand against the appellant-firm, amounts refundable to it or its partners should be ascertained by the concerned Income-tax Officer so that the demand may be executed only for the balance.
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3. Learned counsel for the respondents did not retract from the said position. But, though the High Court delivered the judgment as early as on September 26, 1962, and more than 4 years passed by, nothing seems to have been done by the concerned Income-tax Officer to ascertain the amounts refundable to the firm or its partners. We think that justice demands that before the Certificate Officer executes the demand against the appellant-firm, amounts refundable to it or its partners should be ascertained by the concerned Income-tax Officer so that the demand may be executed only for the balance.
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S.H. Motor Transport Company Vs. Motilal & Others | the provident fund. On the other hand, workmen used to get only ten days leave in a year and were not entitled to the benefit of the provident fund prior to 1948. The attendance register of the supervisory staff was separate from that of workmen. He was not required to take a token only workmen were given token. His attendance was noted in the register of supervisors. He had given an application to the Regional Conciliation Officer and in that application the plaintiff company itself had objected that the defendant was not a workman and therefore the Regional Conciliation Officer had no jurisdiction. Thus it was clear in that case that the nature of duties performed by the shift foreman were far superior where a certain amount of independence of action and initiative was contemplated and he could not be called a "workman". Reliance was placed on two more decisions, (1) Indamer Company (Private) Ltd. v. Barin De, 1958-2 Lab LJ 556 (First Labour Court, W. B.) and (2) Malbar Industrial Co. Ltd. v. Industrial Tribunal., Trivandrum, 1958-2 Lab LJ 722 : (AIR 1958 Ker 202 ). In the latter case, again, there was no indication what were the kind of duties required to be performed. In the case of an aircraft maintenance engineer (1958-2 Lab LJ 556) it was found that his duties were to inspect the aircraft and aero-engines before the flight and to issue a certificate of airworthiness and where their duties mainly consisted of inspecting and checking the jobs and repairs done by skilled mechanics who worked under them, those duties were essentially of a supervisory nature.11. In our opinion, these cases do not lay down any principle. The principle, however, seems to be well settled. It is not the designation by which a person is known in the employment which would be determinative of the question whether the duties are supervisory in character. Again the mere fact that in the course of duties some manual or clerical work is required to be done will not be also a decisive factor. What has to be seen is whether the person who claims to be employed is a supervisory capacity has to exercise any independent judgment or initiative, or has any independence of action, or where he is concerned with the work of other persons, he has any authority to direct or control the work of such other persons. It must always happen that in an industry or an undertaking or a plant or activities of a commercial nature, there has necessarily to be a co-ordination between several activities of several workmen. The mere fact that the work of. one person is required to be checked by another will not make that other person, who is so required to check the work, a supervisor in the sense of a superior officer. Every kind of check does not imply an authority in the checker either to direct or control the person whose work is being checked. The work of a touring auditor, for instance, who has to prepare reports after visiting depots and checking and calculating figures etc. is not the work of a supervisor or a person in a superior capacity; National Tobacco Co. of India v. G.P. Sarathi; (1954) 1 Lab LJ 160 (L. A. T. Cal). Unless a person occupies a position of command or direction and is authorised to act without the sanction of the manager or other supervisors, such person will not be treated as a supervisor or acting in a supervisory capacity.(Eurmah Shell Oil Storage and Distributing Co. of India Ltd. Madras v. Their Employees, (1954) 1 Lab LJ 21 (L. A. T. Lucknow). A depot superintendent, or an assistant depot superintendent employed by an oil. distributing and marketing company who are responsible for stock receipts, storage and issue of stocks and also for compiling the companys standard forms and returns, have been held to be "workmen" within the meaning of S. 2(s) of the Industrial Disputes Act (Central). As they have no power to punish clerks and have no initiative and have to work on instructions from the others., they have been held to be merely workmen : Bunnah Shell Oil Co. v. Labour Appellate Tribunal of India, 1954-2 Lab LJ 155 (Mad). Similarly, a timekeeper; who does not exercise any supervisory control over the workers but whose duties are confined merely to checking the arrivals and departures of the workmen which are purely of a clerical nature, has been held to be a workman (East India Industries (Madras) Ltd. v. Industrial Tribunal Madras, 1954-2 Lab LJ 418 (Mad)).12. Thus it is clear that in the instant case, except the statement of Naidu that in case a ticket is not issued to any passenger a checker can instruct the conductor to issue ticket, there is no suggestion of any kind that a checker in this organization has any superior or supervisory duties or any degree of control over the conductors. Principally the duties are both of a clerical and manual character. He is to check whether passengers are covered, with tickets, whether the memo sheets tally with the number of passengers and their distances as he, finds them on checking in the running bus and whether tickets have been issued to all who are travelling. We do not think any of these duties call either for initiative or independent action or indicate that a checker exercises any degree of control or direction over the acts of the conductors. In fact, Naidu has admitted that whatever is the finding of the checker he has to report it to the manager and he cannot give any direction or order to a conductor. If that is the sphere of the duties, it can hardly be contended that a checker is a supervisor in any sense of the term. We must, therefore hold that the finding that the Respondent No. 1 was an employee is correct and the petitioner could not successfully challenge the order. | 0[ds]We have heard the parties on the preliminary objection as well as on merits and, in our opinion, there is considerable force in this preliminary objection raised on behalf of respondent No. 1, though we have not preferred to dismiss the petition upholding only the preliminary objection.The petitioner has stated in paragraph 5 of the petition that the State Industrial Court had set aside the order of the Additional District Magistrate dated 4th August 1960, by its order dated 19th September1961. It is now admitted that this is not true. The order of the Additional District Magistrate directing reinstatement and payment of back wages onhas never been set aside. The petitioner has also not made any reference to the second order of interim remand passed by the State Industrial Court onas it is now clear and no longer disputed by the petitionerthe State Industrial Court never finally decided the revision application until it was disposed of by its order datedDuring pendency of the revision applications at the request of the petitioner himself, the State Industrial Court seems to have been persuaded to remit the matter twice to the Assistant Commissioner of Labour to give an opportunity to the petitioner to lead evidence and to record a clear finding as to whether Motilal was an "employee" within the meaning of the "C.P. and Berar Industrial Disputes Settlement Act 1947, All along the State Industrial Court was in seisin of the case and what was required to be done by the Assistant Commissioner of Labour was to record a finding after recording evidence of both, sides. The Assistant Commissioner of Labour in fact, submitted his findings on both the occasions. Somehow the petitioner either has not realised the relevance and importance of these facts or has deliberately omitted to refer to them in the petition. The result of these omissions and an entirely untrue statement that the order of the Additional District Magistrate datedwas set aside is that the petitioner purported to represent to this Court in the petition that there was no order of reinstatement or payment of back wages, that the only finding that was recorded was that Motilal was an employee and yet the State Industrial Court had dismissed the revision application which had the effect of making the petitioner liable for back wages as well as reinstatement of Respondent No. 1. We cannot but express too strongly oar disapprobation of the utter lack of care and, therefore, bona fides displayed by the petitioner in this case in reciting the sequence of events as they took place when the proceedings were going on in the lower courts and in representing to this Court that the order of the Assistant Commissioner of Labour was set aside. We fail to see how any one having participated in the proceedings or having before him the copies of the orders of the various authorities could at all represent to this Court that the order of the Additional District Magistrate was set aside. By no process of thinking or interpretation it could be said that there is any indication in the orders of any authorities that the order of the Additional District Magistrate was ever set aside or even put in suspense. We would have been justified in dismissing this petition upholding the preliminary objection on this short ground. Petitioners who invoke the extraordinary jurisdiction of the High Court under Article 226 and/or Article 227 of the Constitution are required to exercise utmost care, inform themselves fully of every stage of the proceeding that has taken place upto the date the petition is filed, give a full and true account of those proceedings, file all the necessary documents in support of their averments and then claim relief on the basis of facts disclosed in the petition. It is not open to a petitioner under Article 226 or Article 227 of the Constitution to pick and choose his own facts or to determine in advance what is relevant and material., omit to mention all material facts and proceedings and orders and then claim that he has acted bona fide even though he has made untrue statements, omitted to inform the Court of all the proceedings and the orders passed at different stages in the proceedings upto date and claim indulgence.8. However, in our opinion, even on merits the petitioner has no legs to stand upon and the petition is liable to be dismissed in view of the findings recorded by the two courts below.In our opinion the evidence on record fully justified the finding that Respondent No. 1 Motilal, who was a checker, was a person who came squarely within the definition of "employee" within the meaning of S. 2(10) of the C. P. and Berar Industrial Disputes Settlement Act, 1947.The learned counsel for the petitioner has invited our attention to certain decisions of Industrial Tribunals and Courts. In A.R. Nataraja Ayyar v. Trichy Srirangam Transport Co. Ltd.Lab LJ 608, (I.T. Madurai), the Industrial Tribunal, Madurai had to consider whether a checking inspector employed by a bus transport company was a "workman" within the meaning of S. 2(s) of the Industrial Disputes Act, 1947 (Central).The definition of a "workman" under Section 2(s) of the Industrial Disputes Act, 1947, prior to its amendment in 1956, was analogous to the definition of "employee" in Sec. 2(10) of the C. P. and Berar Industrial Disputes Settlement Act, 1947.The Tribunal found on the evidence in that case that a checking inspector employed by a bus transport company exercised a limited supervision over conductors and drivers; he had to check the work of the conductors and drivers and had authority to issue warnings to conductors and drivers for minor offences. In the circumstances the checking inspector was held as not to be a "workman" within the meaning of S. 2(s) of the Act (Central). We do not see how this case is of any assistance to the petitioner in view of the clear finding of the Tribunal in that case that the checking inspector there had authority to issue warnings to conductors and drivers and also did supervision over the work of such conductors and drivers. Thus the supervisory nature of his duties was clearly found in that case and in view of that finding, a checking inspector would be outside the definition of a "workman" under S. 2(3) of the (Central) Industrial Disputes Act. Reference was also invited to a decision of the Kerala High Court in Malbar Industrial Co. v. Industrial Tribunal Trivandrum, AIR 1955 Ker 326. The report does not indicate what was the nature of duties, or work done, and it is not, therefore possible to deduce any principle from this case. The Upper India Coupar Paper Mills Co. Ltd. v. J.C. Mathur; AIR 1950, All 064 was tin case of a shift foreman of the Soda Recovery Plant and the finding was that the main work of the defendant was that of a supervisor and merely because in connection with that work he was required to do some writing work, that would not convert him into a clerk. In paragraph 8, at page 66, it has been observed that in the capacity of a shift foreman his duty was to supervise the work of a number of workmen though no manual or clerical work was entrusted to him. As a supervisor he was given 30 days privilege leave in a year and was also as such entitled to the membership of the provident fund. On the other hand, workmen used to get only ten days leave in a year and were not entitled to the benefit of the provident fund prior to 1948. The attendance register of the supervisory staff was separate from that of workmen. He was not required to take a token only workmen were given token. His attendance was noted in the register of supervisors. He had given an application to the Regional Conciliation Officer and in that application the plaintiff company itself had objected that the defendant was not a workman and therefore the Regional Conciliation Officer had no jurisdiction. Thus it was clear in that case that the nature of duties performed by the shift foreman were far superior where a certain amount of independence of action and initiative was contemplated and he could not be called a "workman". Reliance was placed on two more decisions, (1) Indamer Company (Private) Ltd. v. Barin De,Lab LJ 556 (First Labour Court, W. B.) and (2) Malbar Industrial Co. Ltd. v. Industrial Tribunal., Trivandrum,Lab LJ 722 : (AIR 1958 Ker 202 ). In the latter case, again, there was no indication what were the kind of duties required to be performed. In the case of an aircraft maintenance engineerLab LJ 556) it was found that his duties were to inspect the aircraft andbefore the flight and to issue a certificate of airworthiness and where their duties mainly consisted of inspecting and checking the jobs and repairs done by skilled mechanics who worked under them, those duties were essentially of a supervisory nature.11. In our opinion, these cases do not lay down any principle. The principle, however, seems to be well settled. It is not the designation by which a person is known in the employment which would be determinative of the question whether the duties are supervisory in character. Again the mere fact that in the course of duties some manual or clerical work is required to be done will not be also a decisive factor. What has to be seen is whether the person who claims to be employed is a supervisory capacity has to exercise any independent judgment or initiative, or has any independence of action, or where he is concerned with the work of other persons, he has any authority to direct or control the work of such other persons. It must always happen that in an industry or an undertaking or a plant or activities of a commercial nature, there has necessarily to be abetween several activities of several workmen. The mere fact that the work of. one person is required to be checked by another will not make that other person, who is so required to check the work, a supervisor in the sense of a superior officer. Every kind of check does not imply an authority in the checker either to direct or control the person whose work is being checked. The work of a touring auditor, for instance, who has to prepare reports after visiting depots and checking and calculating figures etc. is not the work of a supervisor or a person in a superior capacity; National Tobacco Co. of India v. G.P. Sarathi; (1954) 1 Lab LJ 160 (L. A. T. Cal). Unless a person occupies a position of command or direction and is authorised to act without the sanction of the manager or other supervisors, such person will not be treated as a supervisor or acting in a supervisory capacity.(Eurmah Shell Oil Storage and Distributing Co. of India Ltd. Madras v. Their Employees, (1954) 1 Lab LJ 21 (L. A. T. Lucknow). A depot superintendent, or an assistant depot superintendent employed by an oil. distributing and marketing company who are responsible for stock receipts, storage and issue of stocks and also for compiling the companys standard forms and returns, have been held to be "workmen" within the meaning of S. 2(s) of the Industrial Disputes Act (Central). As they have no power to punish clerks and have no initiative and have to work on instructions from the others., they have been held to be merely workmen : Bunnah Shell Oil Co. v. Labour Appellate Tribunal of India,Lab LJ 155 (Mad). Similarly, a timekeeper; who does not exercise any supervisory control over the workers but whose duties are confined merely to checking the arrivals and departures of the workmen which are purely of a clerical nature, has been held to be a workman (East India Industries (Madras) Ltd. v. Industrial Tribunal Madras,Lab LJ 418 (Mad)).12. Thus it is clear that in the instant case, except the statement of Naidu that in case a ticket is not issued to any passenger a checker can instruct the conductor to issue ticket, there is no suggestion of any kind that a checker in this organization has any superior or supervisory duties or any degree of control over the conductors. Principally the duties are both of a clerical and manual character. He is to check whether passengers are covered, with tickets, whether the memo sheets tally with the number of passengers and their distances as he, finds them on checking in the running bus and whether tickets have been issued to all who are travelling. We do not think any of these duties call either for initiative or independent action or indicate that a checker exercises any degree of control or direction over the acts of the conductors. In fact, Naidu has admitted that whatever is the finding of the checker he has to report it to the manager and he cannot give any direction or order to a conductor. If that is the sphere of the duties, it can hardly be contended that a checker is a supervisor in any sense of the term. We must, therefore hold that the finding that the Respondent No. 1 was an employee is correct and the petitioner could not successfully challenge the order. | 0 | 4,410 | 2,470 | ### 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 provident fund. On the other hand, workmen used to get only ten days leave in a year and were not entitled to the benefit of the provident fund prior to 1948. The attendance register of the supervisory staff was separate from that of workmen. He was not required to take a token only workmen were given token. His attendance was noted in the register of supervisors. He had given an application to the Regional Conciliation Officer and in that application the plaintiff company itself had objected that the defendant was not a workman and therefore the Regional Conciliation Officer had no jurisdiction. Thus it was clear in that case that the nature of duties performed by the shift foreman were far superior where a certain amount of independence of action and initiative was contemplated and he could not be called a "workman". Reliance was placed on two more decisions, (1) Indamer Company (Private) Ltd. v. Barin De, 1958-2 Lab LJ 556 (First Labour Court, W. B.) and (2) Malbar Industrial Co. Ltd. v. Industrial Tribunal., Trivandrum, 1958-2 Lab LJ 722 : (AIR 1958 Ker 202 ). In the latter case, again, there was no indication what were the kind of duties required to be performed. In the case of an aircraft maintenance engineer (1958-2 Lab LJ 556) it was found that his duties were to inspect the aircraft and aero-engines before the flight and to issue a certificate of airworthiness and where their duties mainly consisted of inspecting and checking the jobs and repairs done by skilled mechanics who worked under them, those duties were essentially of a supervisory nature.11. In our opinion, these cases do not lay down any principle. The principle, however, seems to be well settled. It is not the designation by which a person is known in the employment which would be determinative of the question whether the duties are supervisory in character. Again the mere fact that in the course of duties some manual or clerical work is required to be done will not be also a decisive factor. What has to be seen is whether the person who claims to be employed is a supervisory capacity has to exercise any independent judgment or initiative, or has any independence of action, or where he is concerned with the work of other persons, he has any authority to direct or control the work of such other persons. It must always happen that in an industry or an undertaking or a plant or activities of a commercial nature, there has necessarily to be a co-ordination between several activities of several workmen. The mere fact that the work of. one person is required to be checked by another will not make that other person, who is so required to check the work, a supervisor in the sense of a superior officer. Every kind of check does not imply an authority in the checker either to direct or control the person whose work is being checked. The work of a touring auditor, for instance, who has to prepare reports after visiting depots and checking and calculating figures etc. is not the work of a supervisor or a person in a superior capacity; National Tobacco Co. of India v. G.P. Sarathi; (1954) 1 Lab LJ 160 (L. A. T. Cal). Unless a person occupies a position of command or direction and is authorised to act without the sanction of the manager or other supervisors, such person will not be treated as a supervisor or acting in a supervisory capacity.(Eurmah Shell Oil Storage and Distributing Co. of India Ltd. Madras v. Their Employees, (1954) 1 Lab LJ 21 (L. A. T. Lucknow). A depot superintendent, or an assistant depot superintendent employed by an oil. distributing and marketing company who are responsible for stock receipts, storage and issue of stocks and also for compiling the companys standard forms and returns, have been held to be "workmen" within the meaning of S. 2(s) of the Industrial Disputes Act (Central). As they have no power to punish clerks and have no initiative and have to work on instructions from the others., they have been held to be merely workmen : Bunnah Shell Oil Co. v. Labour Appellate Tribunal of India, 1954-2 Lab LJ 155 (Mad). Similarly, a timekeeper; who does not exercise any supervisory control over the workers but whose duties are confined merely to checking the arrivals and departures of the workmen which are purely of a clerical nature, has been held to be a workman (East India Industries (Madras) Ltd. v. Industrial Tribunal Madras, 1954-2 Lab LJ 418 (Mad)).12. Thus it is clear that in the instant case, except the statement of Naidu that in case a ticket is not issued to any passenger a checker can instruct the conductor to issue ticket, there is no suggestion of any kind that a checker in this organization has any superior or supervisory duties or any degree of control over the conductors. Principally the duties are both of a clerical and manual character. He is to check whether passengers are covered, with tickets, whether the memo sheets tally with the number of passengers and their distances as he, finds them on checking in the running bus and whether tickets have been issued to all who are travelling. We do not think any of these duties call either for initiative or independent action or indicate that a checker exercises any degree of control or direction over the acts of the conductors. In fact, Naidu has admitted that whatever is the finding of the checker he has to report it to the manager and he cannot give any direction or order to a conductor. If that is the sphere of the duties, it can hardly be contended that a checker is a supervisor in any sense of the term. We must, therefore hold that the finding that the Respondent No. 1 was an employee is correct and the petitioner could not successfully challenge the order.
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0
### Explanation:
in a year and was also as such entitled to the membership of the provident fund. On the other hand, workmen used to get only ten days leave in a year and were not entitled to the benefit of the provident fund prior to 1948. The attendance register of the supervisory staff was separate from that of workmen. He was not required to take a token only workmen were given token. His attendance was noted in the register of supervisors. He had given an application to the Regional Conciliation Officer and in that application the plaintiff company itself had objected that the defendant was not a workman and therefore the Regional Conciliation Officer had no jurisdiction. Thus it was clear in that case that the nature of duties performed by the shift foreman were far superior where a certain amount of independence of action and initiative was contemplated and he could not be called a "workman". Reliance was placed on two more decisions, (1) Indamer Company (Private) Ltd. v. Barin De,Lab LJ 556 (First Labour Court, W. B.) and (2) Malbar Industrial Co. Ltd. v. Industrial Tribunal., Trivandrum,Lab LJ 722 : (AIR 1958 Ker 202 ). In the latter case, again, there was no indication what were the kind of duties required to be performed. In the case of an aircraft maintenance engineerLab LJ 556) it was found that his duties were to inspect the aircraft andbefore the flight and to issue a certificate of airworthiness and where their duties mainly consisted of inspecting and checking the jobs and repairs done by skilled mechanics who worked under them, those duties were essentially of a supervisory nature.11. In our opinion, these cases do not lay down any principle. The principle, however, seems to be well settled. It is not the designation by which a person is known in the employment which would be determinative of the question whether the duties are supervisory in character. Again the mere fact that in the course of duties some manual or clerical work is required to be done will not be also a decisive factor. What has to be seen is whether the person who claims to be employed is a supervisory capacity has to exercise any independent judgment or initiative, or has any independence of action, or where he is concerned with the work of other persons, he has any authority to direct or control the work of such other persons. It must always happen that in an industry or an undertaking or a plant or activities of a commercial nature, there has necessarily to be abetween several activities of several workmen. The mere fact that the work of. one person is required to be checked by another will not make that other person, who is so required to check the work, a supervisor in the sense of a superior officer. Every kind of check does not imply an authority in the checker either to direct or control the person whose work is being checked. The work of a touring auditor, for instance, who has to prepare reports after visiting depots and checking and calculating figures etc. is not the work of a supervisor or a person in a superior capacity; National Tobacco Co. of India v. G.P. Sarathi; (1954) 1 Lab LJ 160 (L. A. T. Cal). Unless a person occupies a position of command or direction and is authorised to act without the sanction of the manager or other supervisors, such person will not be treated as a supervisor or acting in a supervisory capacity.(Eurmah Shell Oil Storage and Distributing Co. of India Ltd. Madras v. Their Employees, (1954) 1 Lab LJ 21 (L. A. T. Lucknow). A depot superintendent, or an assistant depot superintendent employed by an oil. distributing and marketing company who are responsible for stock receipts, storage and issue of stocks and also for compiling the companys standard forms and returns, have been held to be "workmen" within the meaning of S. 2(s) of the Industrial Disputes Act (Central). As they have no power to punish clerks and have no initiative and have to work on instructions from the others., they have been held to be merely workmen : Bunnah Shell Oil Co. v. Labour Appellate Tribunal of India,Lab LJ 155 (Mad). Similarly, a timekeeper; who does not exercise any supervisory control over the workers but whose duties are confined merely to checking the arrivals and departures of the workmen which are purely of a clerical nature, has been held to be a workman (East India Industries (Madras) Ltd. v. Industrial Tribunal Madras,Lab LJ 418 (Mad)).12. Thus it is clear that in the instant case, except the statement of Naidu that in case a ticket is not issued to any passenger a checker can instruct the conductor to issue ticket, there is no suggestion of any kind that a checker in this organization has any superior or supervisory duties or any degree of control over the conductors. Principally the duties are both of a clerical and manual character. He is to check whether passengers are covered, with tickets, whether the memo sheets tally with the number of passengers and their distances as he, finds them on checking in the running bus and whether tickets have been issued to all who are travelling. We do not think any of these duties call either for initiative or independent action or indicate that a checker exercises any degree of control or direction over the acts of the conductors. In fact, Naidu has admitted that whatever is the finding of the checker he has to report it to the manager and he cannot give any direction or order to a conductor. If that is the sphere of the duties, it can hardly be contended that a checker is a supervisor in any sense of the term. We must, therefore hold that the finding that the Respondent No. 1 was an employee is correct and the petitioner could not successfully challenge the order.
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Gorkha Ram & Others Vs. Custodian General of India, Delhi & Others | brick house without the consent of the proprietor .......If any person dies heirless his house reverts to the possession of the proprietor of the estate in which it is situate."The mendicants are mentioned as one of the types of non-proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non-proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan.9. Learned counsel for the respondent has further contended that apart from S.18 of the Act. Fakiras right to residence in the house in suit will vest in the Custodian as his migrating from the village of Pakistan on partition does not amount to abandonment contemplated by the provisions of the wajib-ul-arz. It is submitted that the wajib-ul-arz contemplates voluntary abandonment and not abandonment under force. We find it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the High Court.10. Reliance is placed on the case reported as Associated Hotels of India v. R. N. Kapoor, AIR 1959 SC 1262 (1269) : (1960) 1 SCR 368 (384) for supporting the contention that Fakira was a lessee of the land in suit and not a licensee. We do not think this case supports the contention. The following propositions were laid down in that case for determining whether a document creates a licence or a lease :(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.(2) The real test is the intention of the parties whether they intended the create a lease or a licence.(3) If the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continuance with the owner, it is a licence and(4) If under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circumstances may be established which negative that intention to create a lease.The terms of the wajib-ul-arz already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable right to occupy it for residence. The house reverted to the possession of the proprietors if he died heirless.11. Learned counsel for the respondent has drawn our attention to the observation at p. 1270 in the above case, to the effect. "The right of the respondent to transfer his interest under the document, although with the consent of the appellants is destructive of any theory of licence."This observation does not help the respondents case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib-ul-arz only expresses this much, that there was no customary right to sell or mortgage residential houses remove the material or build burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with this contention.12. It has also been contended for the respondent that the licensees rights which Fakira had, could vest in the Custodian, as they come within the meaning of the expression property. Even if they do those rights get extinguished in view of the provisions of the wajib-ul-arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of S. 18 of the Act. We have already held that S. 18 does not apply as Fakira was not a tenant. The expression evacuee property as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. Lastly, we do not find any support in the provisions of the wajib-ul-arz or in any law for the observation in the judgment of the Court below :"Were the evacuee to come back he could demand to take possession of the site, and so it cannot be said that the right has ceased to exist. The right ceases only if the occupier leaves the village permanently with no intention of returning, ...."It was nobodys case the Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village.14. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not evacuee property. | 1[ds]The occasion when they will not be extinguished would be when a tenant becomes an evacuee within the meaning of the Act, or thereafter. It follows the sub-sec. (1) of S. 18 provided for the non-extinguishment of those occupancy rights which would have been extinguished otherwise on the tenants becoming an evacuee and that therefore the person having such rights must be a tenant. If he is not a tenant, then the occasion contemplated by sub-sec. (1) of S. 18, for the application of its provisions, does not arise. This is further clear from the latter part of this sub-section which provides that notwithstanding anything contained in any law etc., neither the evacuee nor the Custodian, whether as an occupancy tenant or as a tenant for a certain time, shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default. This latter part also makes it clear that the persons contemplated by the section are the tenants, whether occupancy tenants or tenants for a time certain. We therefore hold that the provisions of S. 18 apply to the occupancy rights of ais clear that Fukira who resided in the house in suit, was not a tenant of it. He occupied the site and probably built the house himself on getting the necessary permission from themendicants are mentioned as one of the types of non-proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non-proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating tofind it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the Highdo not think this case supports theterms of the wajib-ul-arz already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable right to occupy it for residence. The house reverted to the possession of the proprietors if he diedobservation does not help the respondents case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib-ul-arz only expresses this much, that there was no customary right to sell or mortgage residential houses remove the material or build burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with thisif they do those rights get extinguished in view of the provisions of the wajib-ul-arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of S. 18 of the Act. We have already held that S. 18 does not apply as Fakira was not a tenant. The expression evacuee property as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. Lastly, we do not find any support in the provisions of the wajib-ul-arz or in anywas nobodys case the Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village.14. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not evacuee property. | 1 | 2,553 | 862 | ### 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:
brick house without the consent of the proprietor .......If any person dies heirless his house reverts to the possession of the proprietor of the estate in which it is situate."The mendicants are mentioned as one of the types of non-proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non-proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan.9. Learned counsel for the respondent has further contended that apart from S.18 of the Act. Fakiras right to residence in the house in suit will vest in the Custodian as his migrating from the village of Pakistan on partition does not amount to abandonment contemplated by the provisions of the wajib-ul-arz. It is submitted that the wajib-ul-arz contemplates voluntary abandonment and not abandonment under force. We find it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the High Court.10. Reliance is placed on the case reported as Associated Hotels of India v. R. N. Kapoor, AIR 1959 SC 1262 (1269) : (1960) 1 SCR 368 (384) for supporting the contention that Fakira was a lessee of the land in suit and not a licensee. We do not think this case supports the contention. The following propositions were laid down in that case for determining whether a document creates a licence or a lease :(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.(2) The real test is the intention of the parties whether they intended the create a lease or a licence.(3) If the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continuance with the owner, it is a licence and(4) If under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circumstances may be established which negative that intention to create a lease.The terms of the wajib-ul-arz already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable right to occupy it for residence. The house reverted to the possession of the proprietors if he died heirless.11. Learned counsel for the respondent has drawn our attention to the observation at p. 1270 in the above case, to the effect. "The right of the respondent to transfer his interest under the document, although with the consent of the appellants is destructive of any theory of licence."This observation does not help the respondents case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib-ul-arz only expresses this much, that there was no customary right to sell or mortgage residential houses remove the material or build burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with this contention.12. It has also been contended for the respondent that the licensees rights which Fakira had, could vest in the Custodian, as they come within the meaning of the expression property. Even if they do those rights get extinguished in view of the provisions of the wajib-ul-arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of S. 18 of the Act. We have already held that S. 18 does not apply as Fakira was not a tenant. The expression evacuee property as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. Lastly, we do not find any support in the provisions of the wajib-ul-arz or in any law for the observation in the judgment of the Court below :"Were the evacuee to come back he could demand to take possession of the site, and so it cannot be said that the right has ceased to exist. The right ceases only if the occupier leaves the village permanently with no intention of returning, ...."It was nobodys case the Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village.14. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not evacuee property.
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1
### Explanation:
The occasion when they will not be extinguished would be when a tenant becomes an evacuee within the meaning of the Act, or thereafter. It follows the sub-sec. (1) of S. 18 provided for the non-extinguishment of those occupancy rights which would have been extinguished otherwise on the tenants becoming an evacuee and that therefore the person having such rights must be a tenant. If he is not a tenant, then the occasion contemplated by sub-sec. (1) of S. 18, for the application of its provisions, does not arise. This is further clear from the latter part of this sub-section which provides that notwithstanding anything contained in any law etc., neither the evacuee nor the Custodian, whether as an occupancy tenant or as a tenant for a certain time, shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default. This latter part also makes it clear that the persons contemplated by the section are the tenants, whether occupancy tenants or tenants for a time certain. We therefore hold that the provisions of S. 18 apply to the occupancy rights of ais clear that Fukira who resided in the house in suit, was not a tenant of it. He occupied the site and probably built the house himself on getting the necessary permission from themendicants are mentioned as one of the types of non-proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non-proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating tofind it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the Highdo not think this case supports theterms of the wajib-ul-arz already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable right to occupy it for residence. The house reverted to the possession of the proprietors if he diedobservation does not help the respondents case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib-ul-arz only expresses this much, that there was no customary right to sell or mortgage residential houses remove the material or build burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with thisif they do those rights get extinguished in view of the provisions of the wajib-ul-arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of S. 18 of the Act. We have already held that S. 18 does not apply as Fakira was not a tenant. The expression evacuee property as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. Lastly, we do not find any support in the provisions of the wajib-ul-arz or in anywas nobodys case the Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village.14. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not evacuee property.
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Assistant Collector of Central Excise, Guntur Vs. Ramdev Tobacco Company | can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule on interpretation is to allow the general words to take their natural wide meaning unless the language of the statue gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words 6. There can be little doubt that the words other legal proceeding are wide enough to include adjudication and penalty proceedings under the Act. Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question. There can be no doubt that suit or prosecution are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one. The use of the expression instituted in Section 40(2) strengthens this belief. Since the sub-section has been construed by this Court in Raju case ( 1972 (2) SCC 410 : 1972 SCC(Cri) 738 : 1973 (1) SCR 812 ) not to be confined in its application to only government servants but to extend to others including the assessees and since the words for anything done or ordered to be done under this Act are found to be comprehensive enough to include acts of non-compliance or omissions to do what the Act and the rule enjoin, the limitation prescribed by Section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression other legal proceeding is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law 7. The scope of Section 40(2) as it stood before its amendment pursuant to Raju case ( 1972 (2) SCC 410 : 1972 SCC(Cri) 738 : 1973 (1) SCR 812 ) came up for consideration before a Division Bench of the Madhya Pradesh High Court in Universal Cables Ltd. v. Union of India ((1977) 1 ELT (J) 92 (MP)), wherein the question raised for determination was whether penalty proceedings taken under Rule 173-Q for the infraction of Rule 173-C with a view to evading payment of duty fell within the expression other legal proceeding used in the said sub-section. The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words suit or prosecution it must be given a restricted meaning. This is how the High Court expressed itself at page J 106 : (ELT p. J 106) "Now the language of Section 40(2) is : no suit, prosecution or other legal proceeding shall be instituted. Suit and prosecution which precede the expression other legal proceeding can be taken only in a court of law." * After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra Chakraborty v. Excise Collector, Tripura ( 1972 (2) SCC 442 : 1972 AIR(SC) 1863, 1868) (Sutherland, Volume 2 pages 339-400) the High Court observed that there was no indication in the said sub-section or elsewhere in the Act that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub-section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries v. H.N. Ray ( 1980 (6) ELT 442 , 453 (Bom)). These two cases, therefore, clearly support the view canvassed before us the learned Additional Solicitor General 8. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In consider in the scope of the expression other legal proceeding we have confined ourselves to the language of sub-section (2) of Section 40 of the Act before its amendment by Act 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression other legal proceeding must be read ejusdem generis with the preceding words suit and prosecution as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression other legal proceeding employed in Section 40(2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation prescribed by the said sub-section 9. Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court. That indeed is true but being a pure question of law we have thought it fit to entertain the same. We, therefore do not entertain this objection | 1[ds]5. The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follows certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. Courts have also limited the scope of the general words is cases where a large meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specified things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule on interpretation is to allow the general words to take their natural wide meaning unless the language of the statue gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specificWe have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In consider in the scope of the expression other legal proceeding we have confined ourselves to the language of sub-section (2) of Section 40 of the Act before its amendment by Act 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression other legal proceeding must be read ejusdem generis with the preceding words suit and prosecution as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression other legal proceeding employed in Section 40(2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation prescribed by the saidMr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court.That indeed is true but being a pure question of law we have thought it fit to entertain the same. We, therefore do not entertain this objection | 1 | 3,121 | 582 | ### Instruction:
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can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule on interpretation is to allow the general words to take their natural wide meaning unless the language of the statue gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words 6. There can be little doubt that the words other legal proceeding are wide enough to include adjudication and penalty proceedings under the Act. Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question. There can be no doubt that suit or prosecution are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one. The use of the expression instituted in Section 40(2) strengthens this belief. Since the sub-section has been construed by this Court in Raju case ( 1972 (2) SCC 410 : 1972 SCC(Cri) 738 : 1973 (1) SCR 812 ) not to be confined in its application to only government servants but to extend to others including the assessees and since the words for anything done or ordered to be done under this Act are found to be comprehensive enough to include acts of non-compliance or omissions to do what the Act and the rule enjoin, the limitation prescribed by Section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression other legal proceeding is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law 7. The scope of Section 40(2) as it stood before its amendment pursuant to Raju case ( 1972 (2) SCC 410 : 1972 SCC(Cri) 738 : 1973 (1) SCR 812 ) came up for consideration before a Division Bench of the Madhya Pradesh High Court in Universal Cables Ltd. v. Union of India ((1977) 1 ELT (J) 92 (MP)), wherein the question raised for determination was whether penalty proceedings taken under Rule 173-Q for the infraction of Rule 173-C with a view to evading payment of duty fell within the expression other legal proceeding used in the said sub-section. The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words suit or prosecution it must be given a restricted meaning. This is how the High Court expressed itself at page J 106 : (ELT p. J 106) "Now the language of Section 40(2) is : no suit, prosecution or other legal proceeding shall be instituted. Suit and prosecution which precede the expression other legal proceeding can be taken only in a court of law." * After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra Chakraborty v. Excise Collector, Tripura ( 1972 (2) SCC 442 : 1972 AIR(SC) 1863, 1868) (Sutherland, Volume 2 pages 339-400) the High Court observed that there was no indication in the said sub-section or elsewhere in the Act that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub-section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries v. H.N. Ray ( 1980 (6) ELT 442 , 453 (Bom)). These two cases, therefore, clearly support the view canvassed before us the learned Additional Solicitor General 8. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In consider in the scope of the expression other legal proceeding we have confined ourselves to the language of sub-section (2) of Section 40 of the Act before its amendment by Act 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression other legal proceeding must be read ejusdem generis with the preceding words suit and prosecution as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression other legal proceeding employed in Section 40(2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation prescribed by the said sub-section 9. Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court. That indeed is true but being a pure question of law we have thought it fit to entertain the same. We, therefore do not entertain this objection
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1
### Explanation:
5. The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follows certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. Courts have also limited the scope of the general words is cases where a large meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specified things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule on interpretation is to allow the general words to take their natural wide meaning unless the language of the statue gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specificWe have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In consider in the scope of the expression other legal proceeding we have confined ourselves to the language of sub-section (2) of Section 40 of the Act before its amendment by Act 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression other legal proceeding must be read ejusdem generis with the preceding words suit and prosecution as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression other legal proceeding employed in Section 40(2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation prescribed by the saidMr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court.That indeed is true but being a pure question of law we have thought it fit to entertain the same. We, therefore do not entertain this objection
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M/S.J.K. Sons Vs. M/S.Parksons Games & Sports 41-B & Another | renowned, reputed and well known name/mark. The State Express 555 mark, packaging and/or carton is globally well known, renowned and/or has transborder reputation. To dispute the ownership of the State Express 555 intellectual property, is to say the least, dishonest and fallacious. No material in support of theses allegations was produced even in the sur-rejoinder. The matter did not end there. The respondents in their sur sur rejoinder expressly stated that save and except bald words which were allegedly not true to the personal knowledge of the deponent of the sur rejoinder filed on behalf of the appellants, no material whatsoever had been produced to show the goodwill, reputation in India prior to 1976. The appellants were therefore, once again put to notice in this regard. They did not avail of the opportunity of adducing evidence in support of their contention.15. In paragraph 4.1 of the affidavit in reply, it is merely alleged that the respondents are neither the proprietors, nor the owners of the said cartons ; that the respondents cartons are nothing but a slavish flagrant imitation and copy of the carton of the globally renowned cigarette ; that the respondents cartons are not artistic works and do not contain any originality and that therefore, no action can lie at the instance of the respondents. The copies of the relevant cartons/packets of the State Express 555 are annexed to the affidavit.There are no averments, much less is there any evidence, to indicate that the respondents marks/cartons/labels are an imitation of the mark State Express 555. It is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the Court to come to the conclusion that the respondents had infringed the mark. Even assuming that we are entitled to do so, we are reluctant to rely upon our personal knowledge, if any we may have in this regard. The appellants ought to have adduced evidence in respect of their case that the respondents had themselves infringed the mark 555 which belongs to another. We are not inclined therefore to interfere with the conclusions of the learned single Judge in this regard.16. The learned Judge has held that the allegedly well known mark is in relation to cigarettes and not playing cards manufactured by the parties. If it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. Also necessary for consideration is whether the principle would not apply, where it is not a well known mark merely because it is used in respect of the different goods. In other words in the event of the appellants establishing that the respondents had infringed the mark, two further questions would require consideration. Firstly, whether the principle would apply even if the mark is not established to be a well known mark. Secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. We do not consider it appropriate to express any opinion in respect thereof. Nor do we consider it necessary to invite the counsel to argue the same before us. The learned Judge has considered the fact that the parties have applied the mark to different goods as relevant. Suffice it to say that the question of similarity of goods must be considered in the context of several factors. The goods need not be identical even if a well known mark is not involved. We do not rule out the possibility of a nexus between cigarettes and playing cards sufficient to cause deception by the application of deceptively similar marks on the products. The same however is also a question of fact or a mixed question of law and of fact. The appellants have not produced any evidence, and the pleadings are insufficient, to hold that the goods are such as to cause deception. Thus the appellants must fail on facts.17. This brings us to a consideration of Mr.Bhatts submission that the respondents are not the owners of the copyright. He submitted that the respondents case itself is that one Yusuf Kayum Khumri created the same in the year 1971. The said Yusuf Kayum Khumri was not under a contract of service with the respondents and that therefore, he would retain the ownership of the copyright in the artistic work. The respondents, therefore, have no cause of action based on the same.18. According to the respondents their predecessor-in-title engaged one Yusuf Kayum Khumri, a freelance artist and graphic designer who designed and created the labels for the cartons in which the playing cards under their various marks including 555 were packed. The said Khumri designed the labels and has been paid for the same. The respondents acquired by the assignment the copyrights and the labels.19. The respondents have also relied upon the certificates issued by the said Yusuf Kayum Khumri on 26.11.2009 to the effect that he had created the artistic work for M/s.Parksons Printers and that he had been paid for the same. It is possible to contend that the relationship between them was in respect of a contract for service and not a contract of service. However all the facts and circumstances taken together, indicate that even if it was a contract for service, the said Yusuf Kayum Khumri assigned his rights in the year 1971 itself to M/s.Parksons Printers. This is indicated by the fact that he had never made any claim to the artistic work for now almost 40 years and the fact that he issued the said certificates on 26.11.2009 without contending that he continues to remain the proprietor of the artistic work. We are unable in these circumstances to find any error in the prima-facie view taken by the learned Judge. | 0[ds]8. In Abdul Cadar Allibhoys case the Full Bench found that the plaintiffs label was designed by combining the labels of four other manufacturers. It was submitted that the plaintiffs labels or trade marks were so tainted in their conception and origin, that it could not form the basis of any reliefs. The question before the Full Bench, whether the plaintiff was entitled on the basis of such a mark to an injunction against the defendant, was answered in the negative.The Full Bench had relied only upon the judgment of Lord Westbury in The Leather Cloth Company v. The American Leather Cloth Company (Limited). That judgment was in fact confirmed by the House of Lords in The Leather Cloth Company (Limited) v. The American Leather Cloth Company (Limited) 11 ER 1435 = (1865) XI HLC 521. It is interesting to note that the Lord Chancellor Lord Westbury against whose judgment the appeal had been filed to the House of Lords was also a party to the judgment of the House of Lords.Reading the judgment of Lord Westbury as the Lord Chancellor and the judgment of the House of Lords confirming the same it is clear that the above principles are not restricted to cases of infringement of copyright but also apply to an action for infringement of trade marks and passing off. The Full Bench followed the judgment of the Lord Chancellor, which was appealedis thus clear that the principle was applied to an action for infringement of trade mark and passing off.Thus the ratio would apply irrespective of the fact that the third party whose mark has been infringed by the plaintiffs has not taken any action against the plaintiffs. Even on principle this must be so. The basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. That being so, it matters not in an action against another whether or not the proprietor has taken any action against the plaintiff.13. It is obvious, however that nothing prevents the proprietor of the mark from initiating successfully an action for infringement or passing off against the parties to this action.14. The learned single Judge has however not held anything to the contrary. He has, with respect, rightly come to the conclusion that the appellants had not established the case on facts in this regard. It was necessary for the appellants to establish that the third party was in fact the proprietor of the mark 555 and that the respondents had infringed the same.The respondents in theirsur sur rejoinder expressly stated that save and except bald words which were allegedly not true to the personal knowledge of the deponent of the sur rejoinder filed on behalf of the appellants, no material whatsoever had been produced to show the goodwill, reputation in India prior to 1976. The appellants were therefore, once again put to notice in this regard. They did not avail of the opportunity of adducing evidence in support of theiris significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the Court to come to the conclusion that the respondents had infringed the mark. Even assuming that we are entitled to do so, we are reluctant to rely upon our personal knowledge, if any we may have in this regard. The appellants ought to have adduced evidence in respect of their case that the respondents had themselves infringed the mark 555 which belongs to another. We are not inclined therefore to interfere with the conclusions of the learned single Judge in thislearned Judge has considered the fact that the parties have applied the mark to different goods as relevant. Suffice it to say that the question of similarity of goods must be considered in the context of several factors. The goods need not be identical even if a well known mark is not involved. We do not rule out the possibility of a nexus between cigarettes and playing cards sufficient to cause deception by the application of deceptively similar marks on the products. The same however is also a question of fact or a mixed question of law and of fact. The appellants have not produced any evidence, and the pleadings are insufficient, to hold that the goods are such as to cause deception. Thus the appellants must fail on facts.The respondents have also relied upon the certificates issued by the said Yusuf Kayum Khumri on 26.11.2009 to the effect that he had created the artistic work for M/s.Parksons Printers and that he had been paid for the same. It is possible to contend that the relationship between them was in respect of a contract for service and not a contract of service. However all the facts and circumstances taken together, indicate that even if it was a contract for service, the said Yusuf Kayum Khumri assigned his rights in the year 1971 itself to M/s.Parksons Printers. This is indicated by the fact that he had never made any claim to the artistic work for now almost 40 years and the fact that he issued the said certificates on 26.11.2009 without contending that he continues to remain the proprietor of the artistic work. We are unable in these circumstances to find any error in theview taken by the learned Judge. | 0 | 4,395 | 979 | ### Instruction:
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renowned, reputed and well known name/mark. The State Express 555 mark, packaging and/or carton is globally well known, renowned and/or has transborder reputation. To dispute the ownership of the State Express 555 intellectual property, is to say the least, dishonest and fallacious. No material in support of theses allegations was produced even in the sur-rejoinder. The matter did not end there. The respondents in their sur sur rejoinder expressly stated that save and except bald words which were allegedly not true to the personal knowledge of the deponent of the sur rejoinder filed on behalf of the appellants, no material whatsoever had been produced to show the goodwill, reputation in India prior to 1976. The appellants were therefore, once again put to notice in this regard. They did not avail of the opportunity of adducing evidence in support of their contention.15. In paragraph 4.1 of the affidavit in reply, it is merely alleged that the respondents are neither the proprietors, nor the owners of the said cartons ; that the respondents cartons are nothing but a slavish flagrant imitation and copy of the carton of the globally renowned cigarette ; that the respondents cartons are not artistic works and do not contain any originality and that therefore, no action can lie at the instance of the respondents. The copies of the relevant cartons/packets of the State Express 555 are annexed to the affidavit.There are no averments, much less is there any evidence, to indicate that the respondents marks/cartons/labels are an imitation of the mark State Express 555. It is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the Court to come to the conclusion that the respondents had infringed the mark. Even assuming that we are entitled to do so, we are reluctant to rely upon our personal knowledge, if any we may have in this regard. The appellants ought to have adduced evidence in respect of their case that the respondents had themselves infringed the mark 555 which belongs to another. We are not inclined therefore to interfere with the conclusions of the learned single Judge in this regard.16. The learned Judge has held that the allegedly well known mark is in relation to cigarettes and not playing cards manufactured by the parties. If it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. Also necessary for consideration is whether the principle would not apply, where it is not a well known mark merely because it is used in respect of the different goods. In other words in the event of the appellants establishing that the respondents had infringed the mark, two further questions would require consideration. Firstly, whether the principle would apply even if the mark is not established to be a well known mark. Secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. We do not consider it appropriate to express any opinion in respect thereof. Nor do we consider it necessary to invite the counsel to argue the same before us. The learned Judge has considered the fact that the parties have applied the mark to different goods as relevant. Suffice it to say that the question of similarity of goods must be considered in the context of several factors. The goods need not be identical even if a well known mark is not involved. We do not rule out the possibility of a nexus between cigarettes and playing cards sufficient to cause deception by the application of deceptively similar marks on the products. The same however is also a question of fact or a mixed question of law and of fact. The appellants have not produced any evidence, and the pleadings are insufficient, to hold that the goods are such as to cause deception. Thus the appellants must fail on facts.17. This brings us to a consideration of Mr.Bhatts submission that the respondents are not the owners of the copyright. He submitted that the respondents case itself is that one Yusuf Kayum Khumri created the same in the year 1971. The said Yusuf Kayum Khumri was not under a contract of service with the respondents and that therefore, he would retain the ownership of the copyright in the artistic work. The respondents, therefore, have no cause of action based on the same.18. According to the respondents their predecessor-in-title engaged one Yusuf Kayum Khumri, a freelance artist and graphic designer who designed and created the labels for the cartons in which the playing cards under their various marks including 555 were packed. The said Khumri designed the labels and has been paid for the same. The respondents acquired by the assignment the copyrights and the labels.19. The respondents have also relied upon the certificates issued by the said Yusuf Kayum Khumri on 26.11.2009 to the effect that he had created the artistic work for M/s.Parksons Printers and that he had been paid for the same. It is possible to contend that the relationship between them was in respect of a contract for service and not a contract of service. However all the facts and circumstances taken together, indicate that even if it was a contract for service, the said Yusuf Kayum Khumri assigned his rights in the year 1971 itself to M/s.Parksons Printers. This is indicated by the fact that he had never made any claim to the artistic work for now almost 40 years and the fact that he issued the said certificates on 26.11.2009 without contending that he continues to remain the proprietor of the artistic work. We are unable in these circumstances to find any error in the prima-facie view taken by the learned Judge.
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### Explanation:
8. In Abdul Cadar Allibhoys case the Full Bench found that the plaintiffs label was designed by combining the labels of four other manufacturers. It was submitted that the plaintiffs labels or trade marks were so tainted in their conception and origin, that it could not form the basis of any reliefs. The question before the Full Bench, whether the plaintiff was entitled on the basis of such a mark to an injunction against the defendant, was answered in the negative.The Full Bench had relied only upon the judgment of Lord Westbury in The Leather Cloth Company v. The American Leather Cloth Company (Limited). That judgment was in fact confirmed by the House of Lords in The Leather Cloth Company (Limited) v. The American Leather Cloth Company (Limited) 11 ER 1435 = (1865) XI HLC 521. It is interesting to note that the Lord Chancellor Lord Westbury against whose judgment the appeal had been filed to the House of Lords was also a party to the judgment of the House of Lords.Reading the judgment of Lord Westbury as the Lord Chancellor and the judgment of the House of Lords confirming the same it is clear that the above principles are not restricted to cases of infringement of copyright but also apply to an action for infringement of trade marks and passing off. The Full Bench followed the judgment of the Lord Chancellor, which was appealedis thus clear that the principle was applied to an action for infringement of trade mark and passing off.Thus the ratio would apply irrespective of the fact that the third party whose mark has been infringed by the plaintiffs has not taken any action against the plaintiffs. Even on principle this must be so. The basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. That being so, it matters not in an action against another whether or not the proprietor has taken any action against the plaintiff.13. It is obvious, however that nothing prevents the proprietor of the mark from initiating successfully an action for infringement or passing off against the parties to this action.14. The learned single Judge has however not held anything to the contrary. He has, with respect, rightly come to the conclusion that the appellants had not established the case on facts in this regard. It was necessary for the appellants to establish that the third party was in fact the proprietor of the mark 555 and that the respondents had infringed the same.The respondents in theirsur sur rejoinder expressly stated that save and except bald words which were allegedly not true to the personal knowledge of the deponent of the sur rejoinder filed on behalf of the appellants, no material whatsoever had been produced to show the goodwill, reputation in India prior to 1976. The appellants were therefore, once again put to notice in this regard. They did not avail of the opportunity of adducing evidence in support of theiris significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the Court to come to the conclusion that the respondents had infringed the mark. Even assuming that we are entitled to do so, we are reluctant to rely upon our personal knowledge, if any we may have in this regard. The appellants ought to have adduced evidence in respect of their case that the respondents had themselves infringed the mark 555 which belongs to another. We are not inclined therefore to interfere with the conclusions of the learned single Judge in thislearned Judge has considered the fact that the parties have applied the mark to different goods as relevant. Suffice it to say that the question of similarity of goods must be considered in the context of several factors. The goods need not be identical even if a well known mark is not involved. We do not rule out the possibility of a nexus between cigarettes and playing cards sufficient to cause deception by the application of deceptively similar marks on the products. The same however is also a question of fact or a mixed question of law and of fact. The appellants have not produced any evidence, and the pleadings are insufficient, to hold that the goods are such as to cause deception. Thus the appellants must fail on facts.The respondents have also relied upon the certificates issued by the said Yusuf Kayum Khumri on 26.11.2009 to the effect that he had created the artistic work for M/s.Parksons Printers and that he had been paid for the same. It is possible to contend that the relationship between them was in respect of a contract for service and not a contract of service. However all the facts and circumstances taken together, indicate that even if it was a contract for service, the said Yusuf Kayum Khumri assigned his rights in the year 1971 itself to M/s.Parksons Printers. This is indicated by the fact that he had never made any claim to the artistic work for now almost 40 years and the fact that he issued the said certificates on 26.11.2009 without contending that he continues to remain the proprietor of the artistic work. We are unable in these circumstances to find any error in theview taken by the learned Judge.
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Vasant Vithal Prabhu Vs. Union of India and Others | would be effective only from 1-1-1989. There was, however, a request to the management to consider whether it was possible to extend the superannuation benefits to officials who retired in the year 1988. The petitioner received back his deposit of Rs. 1000/- in the year 1989, apparently taking note of the altered position. He has now filed the writ petition, to compel the respondents to extend the benefits of superannuation scheme to him. The denial of benefits of such scheme, according to him, violates Article 14 of the Constitution on diverse grounds. If those who were in service as on 1-1-1989 could be beneficiaries of this scheme, why not those who were so in service, though only upto 1-1-1988 If many other Oil Companies have extended such superannuation scheme to their employees, why should Indo Burma Petroleum Company tread on a different course5. As in many such cases, the decision of the Supreme Court in Nakaras case and other decisions which have followed and applied the principles therein, were relied in.6. Respondent No. 3 has filed a counter affidavit, detailing the circumstances in which the petitioner happened to be excluded from the benefits of the superannuation scheme. Among other things, it has been pointed out that the scheme was a voluntary self-contributory fund, and the fund was substantially made of contribution of the members. The third respondent was only to make a nominal contribution of Rs. 100/- per year and that was in connection with the recognition under the Income-tax Act.7. The conditions of the service of the members of the staff, had been the subject matter of negotiations, long and recurring. The retirement benefits in the form of the superannuation scheme, also, figured in such negotiations and had been dealt with in an ultimate agreement, the details of which have been already indicated above. The retirement benefits of an employee, could not be viewed in isolation from other benefits. A casual fixation of a date, or an arbitrary drawing of a line as it were, or an indifferent drawing of a cut off line, could, in the absence of reasons which have a nexus to the objective in the provision regarding retirement benefits, amount to infraction of Article 14 or principles underlying the same, in given circumstances. However, if reasons are available to explain the differential treatment, they have necessarily be adverted to. Of course, if the reasons themselves are whimsical or irrational, they may not justify the dividing line or discrimination effected thereunder. Such was the case decided by this Court in (Retired Employees of non-College association, Nagpur through President and others v. State of Maharashtra)1, 1987 Mh.L.J. page 326. No reason was indicated in the return filed on behalf of the respondents in that case. In the course of the arguments, a reason was indicated. It was an assurance given by the Minister for Education on the floor of Assembly. The Court held that the reasons had no nexus with the provisions for fixation of retirement benefits.8. That, however, is not the situation in the present case. In the modern industrial setting, the functioning is integrally connected with collective bargaining. The bargaining process generates enduring settlement and stable industrial peace. The labour laws, rightly assign to such negotiated settlements enforceability and respectability. Parties to the settlement are bound thereby. Even those who are not parties would be bound in the contingencies indicated in that behalf, under the Industrial Disputes Act, 1947. The crucial role played by the Trade Union in projecting demands on behalf of the employees and the effect and impact of the ultimate agreement reached between the employers and the employees, could pose as an important and solid foundation for sustaining a provision relating to the terms and conditions of service. If on the basis of the express desire of the large number of employees, the Union sought and got a variation of the date of effective implementation of the benefits of the superannuation scheme, and the Management religiously adhered to that provision, the action of the Management could not be characterised as amounting to vicious discrimination.9. The complaint about an absolute equality with other companies in the Oil Industries, cannot also be accepted. Different Companies had their differing origins, workings and developments. The pay scales were not all altogether similar in all cases. The conditions of service also varied substantially. Reported decisions, particularly those in specialised law journals, give information about the Awards passed or about settlements reached between the workmen and the oil companies in various States and settings. They would furnish telling facts about more advantageous terms and conditions enjoyed by the employees of the Oil Companies. They would also bring about the differentiation in relation to the conditions of service which had obtained during substantial periods of their existence. It may be that after a long period of time, many of those corporate undertakings may have a uniform working under the Union of India. That is, however, dependent upon very many imponderable factors. This is particularly so when activities and employees, mode of production, commercial organisation and service conditions operate differently in respect of such different companies. Some of the companies may have additional advantage due to historical origin. Indo Burma had in early days advantages of oil fields. This had its impact even in relation to administration. A District Collector working in Burma had to attend to other duties including supervision of the oil fields, while his counter part elsewhere had no such problem. These circumstances are indicated only to hint at the vital variations in relation to very many factors affecting the working of various units including a company of the nature of the 3rd respondent. In that area, attainment of absolute equality could not be easily targeted under our constitutional policy. The mere fact that the schemes differ is no good ground to strike down a settlement or a scheme as arbitrary or violative of the Equality Clause. See (George v. State of Kerala)2, J.T. 1992(3) S.C. 88. | 0[ds]7. The conditions of the service of the members of the staff, had been the subject matter of negotiations, long and recurring. The retirement benefits in the form of the superannuation scheme, also, figured in such negotiations and had been dealt with in an ultimate agreement, the details of which have been already indicated above. The retirement benefits of an employee, could not be viewed in isolation from other benefits. A casual fixation of a date, or an arbitrary drawing of a line as it were, or an indifferent drawing of a cut off line, could, in the absence of reasons which have a nexus to the objective in the provision regarding retirement benefits, amount to infraction of Article 14 or principles underlying the same, in given circumstances. However, if reasons are available to explain the differential treatment, they have necessarily be adverted to. Of course, if the reasons themselves are whimsical or irrational, they may not justify the dividing line or discrimination effected thereunder. Such was the case decided by this Court in (Retired Employees ofassociation, Nagpur through President and others v. State of Maharashtra)1, 1987 Mh.L.J. page 326. No reason was indicated in the return filed on behalf of the respondents in that case. In the course of the arguments, a reason was indicated. It was an assurance given by the Minister for Education on the floor of Assembly. The Court held that the reasons had no nexus with the provisions for fixation of retirement benefits.8. That, however, is not the situation in the present case. In the modern industrial setting, the functioning is integrally connected with collective bargaining. The bargaining process generates enduring settlement and stable industrial peace. The labour laws, rightly assign to such negotiated settlements enforceability and respectability. Parties to the settlement are bound thereby. Even those who are not parties would be bound in the contingencies indicated in that behalf, under the Industrial Disputes Act, 1947. The crucial role played by the Trade Union in projecting demands on behalf of the employees and the effect and impact of the ultimate agreement reached between the employers and the employees, could pose as an important and solid foundation for sustaining a provision relating to the terms and conditions of service. If on the basis of the express desire of the large number of employees, the Union sought and got a variation of the date of effective implementation of the benefits of the superannuation scheme, and the Management religiously adhered to that provision, the action of the Management could not be characterised as amounting to vicious discrimination.9. The complaint about an absolute equality with other companies in the Oil Industries, cannot also be accepted. Different Companies had their differing origins, workings and developments. The pay scales were not all altogether similar in all cases. The conditions of service also varied substantially. Reported decisions, particularly those in specialised law journals, give information about the Awards passed or about settlements reached between the workmen and the oil companies in various States and settings. They would furnish telling facts about more advantageous terms and conditions enjoyed by the employees of the Oil Companies. They would also bring about the differentiation in relation to the conditions of service which had obtained during substantial periods of their existence. It may be that after a long period of time, many of those corporate undertakings may have a uniform working under the Union of India. That is, however, dependent upon very many imponderable factors. This is particularly so when activities and employees, mode of production, commercial organisation and service conditions operate differently in respect of such different companies. Some of the companies may have additional advantage due to historical origin. Indo Burma had in early days advantages of oil fields. This had its impact even in relation to administration. A District Collector working in Burma had to attend to other duties including supervision of the oil fields, while his counter part elsewhere had no such problem. These circumstances are indicated only to hint at the vital variations in relation to very many factors affecting the working of various units including a company of the nature of the 3rd respondent. In that area, attainment of absolute equality could not be easily targeted under our constitutional policy. The mere fact that the schemes differ is no good ground to strike down a settlement or a scheme as arbitrary or violative of the Equality Clause. See (George v. State of Kerala)2, J.T. 1992(3) S.C. 88. | 0 | 1,472 | 843 | ### 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:
would be effective only from 1-1-1989. There was, however, a request to the management to consider whether it was possible to extend the superannuation benefits to officials who retired in the year 1988. The petitioner received back his deposit of Rs. 1000/- in the year 1989, apparently taking note of the altered position. He has now filed the writ petition, to compel the respondents to extend the benefits of superannuation scheme to him. The denial of benefits of such scheme, according to him, violates Article 14 of the Constitution on diverse grounds. If those who were in service as on 1-1-1989 could be beneficiaries of this scheme, why not those who were so in service, though only upto 1-1-1988 If many other Oil Companies have extended such superannuation scheme to their employees, why should Indo Burma Petroleum Company tread on a different course5. As in many such cases, the decision of the Supreme Court in Nakaras case and other decisions which have followed and applied the principles therein, were relied in.6. Respondent No. 3 has filed a counter affidavit, detailing the circumstances in which the petitioner happened to be excluded from the benefits of the superannuation scheme. Among other things, it has been pointed out that the scheme was a voluntary self-contributory fund, and the fund was substantially made of contribution of the members. The third respondent was only to make a nominal contribution of Rs. 100/- per year and that was in connection with the recognition under the Income-tax Act.7. The conditions of the service of the members of the staff, had been the subject matter of negotiations, long and recurring. The retirement benefits in the form of the superannuation scheme, also, figured in such negotiations and had been dealt with in an ultimate agreement, the details of which have been already indicated above. The retirement benefits of an employee, could not be viewed in isolation from other benefits. A casual fixation of a date, or an arbitrary drawing of a line as it were, or an indifferent drawing of a cut off line, could, in the absence of reasons which have a nexus to the objective in the provision regarding retirement benefits, amount to infraction of Article 14 or principles underlying the same, in given circumstances. However, if reasons are available to explain the differential treatment, they have necessarily be adverted to. Of course, if the reasons themselves are whimsical or irrational, they may not justify the dividing line or discrimination effected thereunder. Such was the case decided by this Court in (Retired Employees of non-College association, Nagpur through President and others v. State of Maharashtra)1, 1987 Mh.L.J. page 326. No reason was indicated in the return filed on behalf of the respondents in that case. In the course of the arguments, a reason was indicated. It was an assurance given by the Minister for Education on the floor of Assembly. The Court held that the reasons had no nexus with the provisions for fixation of retirement benefits.8. That, however, is not the situation in the present case. In the modern industrial setting, the functioning is integrally connected with collective bargaining. The bargaining process generates enduring settlement and stable industrial peace. The labour laws, rightly assign to such negotiated settlements enforceability and respectability. Parties to the settlement are bound thereby. Even those who are not parties would be bound in the contingencies indicated in that behalf, under the Industrial Disputes Act, 1947. The crucial role played by the Trade Union in projecting demands on behalf of the employees and the effect and impact of the ultimate agreement reached between the employers and the employees, could pose as an important and solid foundation for sustaining a provision relating to the terms and conditions of service. If on the basis of the express desire of the large number of employees, the Union sought and got a variation of the date of effective implementation of the benefits of the superannuation scheme, and the Management religiously adhered to that provision, the action of the Management could not be characterised as amounting to vicious discrimination.9. The complaint about an absolute equality with other companies in the Oil Industries, cannot also be accepted. Different Companies had their differing origins, workings and developments. The pay scales were not all altogether similar in all cases. The conditions of service also varied substantially. Reported decisions, particularly those in specialised law journals, give information about the Awards passed or about settlements reached between the workmen and the oil companies in various States and settings. They would furnish telling facts about more advantageous terms and conditions enjoyed by the employees of the Oil Companies. They would also bring about the differentiation in relation to the conditions of service which had obtained during substantial periods of their existence. It may be that after a long period of time, many of those corporate undertakings may have a uniform working under the Union of India. That is, however, dependent upon very many imponderable factors. This is particularly so when activities and employees, mode of production, commercial organisation and service conditions operate differently in respect of such different companies. Some of the companies may have additional advantage due to historical origin. Indo Burma had in early days advantages of oil fields. This had its impact even in relation to administration. A District Collector working in Burma had to attend to other duties including supervision of the oil fields, while his counter part elsewhere had no such problem. These circumstances are indicated only to hint at the vital variations in relation to very many factors affecting the working of various units including a company of the nature of the 3rd respondent. In that area, attainment of absolute equality could not be easily targeted under our constitutional policy. The mere fact that the schemes differ is no good ground to strike down a settlement or a scheme as arbitrary or violative of the Equality Clause. See (George v. State of Kerala)2, J.T. 1992(3) S.C. 88.
### Response:
0
### Explanation:
7. The conditions of the service of the members of the staff, had been the subject matter of negotiations, long and recurring. The retirement benefits in the form of the superannuation scheme, also, figured in such negotiations and had been dealt with in an ultimate agreement, the details of which have been already indicated above. The retirement benefits of an employee, could not be viewed in isolation from other benefits. A casual fixation of a date, or an arbitrary drawing of a line as it were, or an indifferent drawing of a cut off line, could, in the absence of reasons which have a nexus to the objective in the provision regarding retirement benefits, amount to infraction of Article 14 or principles underlying the same, in given circumstances. However, if reasons are available to explain the differential treatment, they have necessarily be adverted to. Of course, if the reasons themselves are whimsical or irrational, they may not justify the dividing line or discrimination effected thereunder. Such was the case decided by this Court in (Retired Employees ofassociation, Nagpur through President and others v. State of Maharashtra)1, 1987 Mh.L.J. page 326. No reason was indicated in the return filed on behalf of the respondents in that case. In the course of the arguments, a reason was indicated. It was an assurance given by the Minister for Education on the floor of Assembly. The Court held that the reasons had no nexus with the provisions for fixation of retirement benefits.8. That, however, is not the situation in the present case. In the modern industrial setting, the functioning is integrally connected with collective bargaining. The bargaining process generates enduring settlement and stable industrial peace. The labour laws, rightly assign to such negotiated settlements enforceability and respectability. Parties to the settlement are bound thereby. Even those who are not parties would be bound in the contingencies indicated in that behalf, under the Industrial Disputes Act, 1947. The crucial role played by the Trade Union in projecting demands on behalf of the employees and the effect and impact of the ultimate agreement reached between the employers and the employees, could pose as an important and solid foundation for sustaining a provision relating to the terms and conditions of service. If on the basis of the express desire of the large number of employees, the Union sought and got a variation of the date of effective implementation of the benefits of the superannuation scheme, and the Management religiously adhered to that provision, the action of the Management could not be characterised as amounting to vicious discrimination.9. The complaint about an absolute equality with other companies in the Oil Industries, cannot also be accepted. Different Companies had their differing origins, workings and developments. The pay scales were not all altogether similar in all cases. The conditions of service also varied substantially. Reported decisions, particularly those in specialised law journals, give information about the Awards passed or about settlements reached between the workmen and the oil companies in various States and settings. They would furnish telling facts about more advantageous terms and conditions enjoyed by the employees of the Oil Companies. They would also bring about the differentiation in relation to the conditions of service which had obtained during substantial periods of their existence. It may be that after a long period of time, many of those corporate undertakings may have a uniform working under the Union of India. That is, however, dependent upon very many imponderable factors. This is particularly so when activities and employees, mode of production, commercial organisation and service conditions operate differently in respect of such different companies. Some of the companies may have additional advantage due to historical origin. Indo Burma had in early days advantages of oil fields. This had its impact even in relation to administration. A District Collector working in Burma had to attend to other duties including supervision of the oil fields, while his counter part elsewhere had no such problem. These circumstances are indicated only to hint at the vital variations in relation to very many factors affecting the working of various units including a company of the nature of the 3rd respondent. In that area, attainment of absolute equality could not be easily targeted under our constitutional policy. The mere fact that the schemes differ is no good ground to strike down a settlement or a scheme as arbitrary or violative of the Equality Clause. See (George v. State of Kerala)2, J.T. 1992(3) S.C. 88.
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Deputy Custodian General, Evacuee Property & Another Vs. Daulat Ram & Others | Grover, J. 1. This is an appeal by certificate from a judgment of the Punjab and Haryana High Court. 2. The facts may be briefly stated. Late Nadar Chand the father of respondents obtained a money decree for Rs. 16,771/- against one Mokham Din in the year 1935. During the course of execution proceedings the decree was forwarded to the Collector for execution under S. 68 of the Code of Civil Procedure. The Collector made an order on September 30, 1940 directing that land in two villages belonging to the judgment debtor be leased out to the decree holder for 20 years with effect from Kharif 1941. The Judgment debtor had lands in other villages also but the entire land in these two villages was leased out to the decree holder. It appears that the decree holder took execution proceedings in 1941, 1943 and 1948 but on each occasion the proceedings were consigned to the record room. On the partition of the country the judgment debtor who was a Muslim became an evacuee and his land vested in the Custodian of Evacuee Property under the Evacuee Laws then in force. On June 8, 1949 the Assistant Custodian made an order that possession of the property which had been leased out should be given to the decree holder in satisfaction of the decree on the condition that on the expiry of the term of the lease his claim would be deemed to have been satisfied. On October 2, 1949 the Additional Custodian confirmed that order saying that possession might be delivered to the decree holder. As mentioned in the judgment of the High Court the possession was not delivered till March 1951. The possession which was given was of much less area than the area covered by the lease. The decree holder was also dispossessed from certain land as the same had been allotted to displaced persons. On December 29, 1960 the decree holder moved the Additional Custodian, Jullundur, complaining that possession of the remaining area had not been given. This application was rejected by the Additional Custodian on February 7, l961. The matter was taken in revision to the Deputy Custodian General of Evacuee Property. Certain orders including one of remand were made which need not be mentioned. Finally the Deputy Custodian General dismissed the revision application. He held inter alia that the execution application of the decree holder was barred under the provisions of Article 182 of the Indian Limitation Act and the decree had become inexecutable. His order was challenged under Article 226 of the Constitution before the High Court. A learned single Judge dismissed the petition. The appeal under clause 10 of the Letters Patent filed by the present appellants, however, succeeded. The Division Bench, after considering all the relevant provisions, quashed the order of the Deputy Custodian General on the ground that the significance of the various legal provisions had not been fully appreciated by the Custodian Department or by the learned single Judge. The High Court expressed the view that the decision of the Deputy Custodian General on the question of limitation was altogether erroneous.3. Learned counsel for the Deputy Custodian General who is the appellant before us has not sought to challenge the decision of the High Court on the point on which it was given. He has sought so raise a question which was never agitated before the High Court.The contention now sought to be raised is that assuming that the Division Bench took the right view on the question of limitation the period for which the land had been farmed out by the Collector by his order made in September 1940 had already expired. That period of 20 years could not, be extended. The effect of quashing the order of the Deputy Custodian General dated October 31, 1964 would be to restore the order of the Additional Custodian dated October 2, 1949. That would lead to various complications. One of such complications will arise out of the claim of the appellants that they are entitled to remain in possession beyond the period of the lease because possession was in fact not given of the entire land and it was only of a part of that land that possession had been given and that also at a date much later than the order of the Collector. Indisputably no such argument was raised before the High Court and following our well settled practice we decline to entertain any such contention raised for the first time here. | 0[ds]3. Learned counsel for the Deputy Custodian General who is the appellant before us has not sought to challenge the decision of the High Court on the point on which it was given. He has sought so raise a question which was never agitated before the High Court.The contention now sought to be raised is that assuming that the Division Bench took the right view on the question of limitation the period for which the land had been farmed out by the Collector by his order made in September 1940 had already expired. That period of 20 years could not, be extended. The effect of quashing the order of the Deputy Custodian General dated October 31, 1964 would be to restore the order of the Additional Custodian dated October 2, 1949. That would lead to various complications. One of such complications will arise out of the claim of the appellants that they are entitled to remain in possession beyond the period of the lease because possession was in fact not given of the entire land and it was only of a part of that land that possession had been given and that also at a date much later than the order of the Collector.Indisputably no such argument was raised before the High Court and following our well settled practice we decline to entertain any such contention raised for the first time here. | 0 | 803 | 246 | ### 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:
Grover, J. 1. This is an appeal by certificate from a judgment of the Punjab and Haryana High Court. 2. The facts may be briefly stated. Late Nadar Chand the father of respondents obtained a money decree for Rs. 16,771/- against one Mokham Din in the year 1935. During the course of execution proceedings the decree was forwarded to the Collector for execution under S. 68 of the Code of Civil Procedure. The Collector made an order on September 30, 1940 directing that land in two villages belonging to the judgment debtor be leased out to the decree holder for 20 years with effect from Kharif 1941. The Judgment debtor had lands in other villages also but the entire land in these two villages was leased out to the decree holder. It appears that the decree holder took execution proceedings in 1941, 1943 and 1948 but on each occasion the proceedings were consigned to the record room. On the partition of the country the judgment debtor who was a Muslim became an evacuee and his land vested in the Custodian of Evacuee Property under the Evacuee Laws then in force. On June 8, 1949 the Assistant Custodian made an order that possession of the property which had been leased out should be given to the decree holder in satisfaction of the decree on the condition that on the expiry of the term of the lease his claim would be deemed to have been satisfied. On October 2, 1949 the Additional Custodian confirmed that order saying that possession might be delivered to the decree holder. As mentioned in the judgment of the High Court the possession was not delivered till March 1951. The possession which was given was of much less area than the area covered by the lease. The decree holder was also dispossessed from certain land as the same had been allotted to displaced persons. On December 29, 1960 the decree holder moved the Additional Custodian, Jullundur, complaining that possession of the remaining area had not been given. This application was rejected by the Additional Custodian on February 7, l961. The matter was taken in revision to the Deputy Custodian General of Evacuee Property. Certain orders including one of remand were made which need not be mentioned. Finally the Deputy Custodian General dismissed the revision application. He held inter alia that the execution application of the decree holder was barred under the provisions of Article 182 of the Indian Limitation Act and the decree had become inexecutable. His order was challenged under Article 226 of the Constitution before the High Court. A learned single Judge dismissed the petition. The appeal under clause 10 of the Letters Patent filed by the present appellants, however, succeeded. The Division Bench, after considering all the relevant provisions, quashed the order of the Deputy Custodian General on the ground that the significance of the various legal provisions had not been fully appreciated by the Custodian Department or by the learned single Judge. The High Court expressed the view that the decision of the Deputy Custodian General on the question of limitation was altogether erroneous.3. Learned counsel for the Deputy Custodian General who is the appellant before us has not sought to challenge the decision of the High Court on the point on which it was given. He has sought so raise a question which was never agitated before the High Court.The contention now sought to be raised is that assuming that the Division Bench took the right view on the question of limitation the period for which the land had been farmed out by the Collector by his order made in September 1940 had already expired. That period of 20 years could not, be extended. The effect of quashing the order of the Deputy Custodian General dated October 31, 1964 would be to restore the order of the Additional Custodian dated October 2, 1949. That would lead to various complications. One of such complications will arise out of the claim of the appellants that they are entitled to remain in possession beyond the period of the lease because possession was in fact not given of the entire land and it was only of a part of that land that possession had been given and that also at a date much later than the order of the Collector. Indisputably no such argument was raised before the High Court and following our well settled practice we decline to entertain any such contention raised for the first time here.
### Response:
0
### Explanation:
3. Learned counsel for the Deputy Custodian General who is the appellant before us has not sought to challenge the decision of the High Court on the point on which it was given. He has sought so raise a question which was never agitated before the High Court.The contention now sought to be raised is that assuming that the Division Bench took the right view on the question of limitation the period for which the land had been farmed out by the Collector by his order made in September 1940 had already expired. That period of 20 years could not, be extended. The effect of quashing the order of the Deputy Custodian General dated October 31, 1964 would be to restore the order of the Additional Custodian dated October 2, 1949. That would lead to various complications. One of such complications will arise out of the claim of the appellants that they are entitled to remain in possession beyond the period of the lease because possession was in fact not given of the entire land and it was only of a part of that land that possession had been given and that also at a date much later than the order of the Collector.Indisputably no such argument was raised before the High Court and following our well settled practice we decline to entertain any such contention raised for the first time here.
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Saligram Ruplal Khanna & Anr Vs. Kanwar Rajnath | of the fixed period of partnership has been proved on the record.30. Reference has also been made on behalf of the appellants to the consent given by the respondent on behalf of SAMCO on November 13, 1957, to the award of Rs. 18,00,000/- by Mr. Morarji Desai in favour of the Custodian against SAMCO. It is urged that this document would go to show that the firm of SAMCO had not been dissolved before that date. We are unable to agree. The arbitration proceedings had been started as a result of application under Section 20 of the Arbitration Act filed on April 21, 1955, when SAMCO was in existence and was a running concern. The arbitration proceedings related to a claim of the Custodian of Rs. 30,00,000/- on account of the price of stocks of raw material, stores and other moveables as well as about the arrears of rent. Counter-claim had also been made by SAMCO against the Custodian for a sum of Rs. 17,67,080/- as per written statement dated December 18, 1956 filed in arbitration proceedings. The consent which was given by the respondent on November 13, 1957 was with a view to get the dispute between SAMCO with the Custodian finally settled. This was a necessary step for the purpose of winding up the affairs of SAMCO and to complete transaction of arbitration proceedings which had been begun but remained unfinished at the time of dissolution. According to Sec. 47 of the Indian Partnership Act, after the dissolution of a firm the authority of each partner to bind the firm, and the other mutual rights and obligations of the partners, continue notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise. The word "transaction" in Section 47 refers not merely to commercial transaction of purchase and sale but would include also all other matters relating to the affairs of the partnership. The completion of a transaction would cover also the taking of necessary steps in connection with the adjudication of a dispute to which a firm before its dissolution is a party. The legal position in this respect has been stated on page 251 of Lindley on Partnership (Thirteenth Edition) as under:Notwithstanding a dissolution each partner can pay, or receive payment of, a partnership debt; for it is clearly settled that payment by one of several joint debtors, or to one of several joint creditors, extinguishes the debt irrespective of any question of partnership. So, again, it has been held that a continuing or surviving partner may issue a bankruptcy notice in the firm name in respect of a judgment obtained before the dissolution, and the notice to him of the dishonour of a bill of exchange is sufficient, and that he can withdraw a deposit or sell the partnership assets, or pledge them for the purpose of completing a transaction already commenced, or securing a debt already incurred, or the overdraft on the partnership current account at the bank.The proposition, in our opinion, cannot be disputed that after dissolution, the partnership subsists merely for the purpose of completing pending transactions, winding up the business, and adjusting the rights of the partners; and for these purposes, and these only, the authority, rights, and obligations of the partners continue (see page 573 of Halsburys Laws of England Third Edition Vol. 28). We would, therefore, hold that the consent given by the respondent on November 13, 1957, to the award of Mr. Desai would not detract from the conclusion that the firm of the parties stood dissolved on the expiry of the fixed period of partnership, viz., August 30, 1957.31. The proposition of law referred to by Mr,. Desai that a dissolution does not necessarily follow because a partnership has ceased to do business would not be of any material help to the appellants because we are not basing our conclusion of the dissolution of the firm of the parties upon the fact that the partnership had ceased to do business. On the contrary, we have arrived at the above conclusion in accordance with the principle of law that a firm constituted for a fixed term shall stand dissolved, in the absence of a contract to the contrary, on the expiry of that term. Likewise, the appellants can derive no help from the decision of the Judicial Committee in Sathappa Chetty v. S. N. Subramanyan Chetty, AIR 1927 PC 70 . The said case did not relate to a firm constituted for a fixed term and no question arose in that case of a firm dissolving on the expiry of the fixed term of partnership.32. Our attention has also been invited to the correspondence between the first appellant and the respondent during the period from June to September, 1957. These letters reveal that the first appellant entertained hopes and expectations of deriving some benefit in case the respondent succeeded in acquiring the Ambernath Mills. The exact nature of the benefit was not, however, specified in the letters. The respondent in his replies while not belying those hopes and expectations took care not to make any commitment. After, however, the respondent succeeded in acquiring the mills, there developed a coolness in his attitude towards the first appellant. This circumstance must necessarily have caused disappointment and disillusionment to the first appellant. The respondent, is seems, kept some kind of carrot dangling before the first appellant during the delicate stage of his negotiations with the Government for the acquisition of the mills lest the first appellant did something to sabotage those efforts. After acquisition of the mills by the respondent, his attitude changed and he gave a cold rebuff to the first appellant. The above conduct of the respondent may have a bearing on the question of the award of costs, but it cannot affect our decision on the point as to whether the suit is within limitation or not. | 0[ds]The main burden of the arguments of Mr. Desai, however, has been that the appellants were entitled to the accounts of the partnership which admittedly existed between the parties as per partnership agreements dated August 30, 1952 and February 24, 1954. According to Mr. Desai, there had been no dissolution of the firm of the parties prior to the institution of the suit and the appellants suit for rendition of accounts was not barred by limitation. The High Court, it is urged, was in error in holding to the contrary. The above contentions have been controverted by Mr. Cooper on behalf of the respondent and, in our opinion, are notthis connection we find that no case of such an implied agreement was set up in the trial Court, either in the plaint or otherwise, nor was such a case set up in appeal before the Division Bench. What was actually contended was that the agreement was for acquiring the mills as an asset of the partnership. The above stand of the appellants could plainly be not accepted when one keeps in view the agreement of lease dated August 30, 1952, as well as other documents on record. The said agreement of lease shows that Ambernath Mills would become the absolute property not only of the appellants and the respondent but of all persons who were to be associated with the lessees in the ownership of the proprietary interest in proportion to the total compensation payable to each of them. The agreement of lease further contemplated that the lessee rights of the two appellants and the respondent were to be distinct from the proprietary interest in the demised premises and that the lessees were at liberty, in spite of the transfer of proprietary interest, to continue the lease for the unexpired residue of the term on the terms and conditions of the lease and payment of rent prescribed thereunder. The respondent submitted representation on August 9, 1954, on behalf of SAMCO to the Custodian for the restart of the mills and along with it the respondent sent copies of letter of authority and particulars of verified claims of 30 displaced persons. It is implicit in the representation that in case Ambernath Mills was transferred, the same would vest in all the 30 displaced persons whose claims were submitted.21. There are two documents which run counter to the stand taken on behalf of the appellants in this Court that there was an implied agreement that in case the respondent acquired the ownership of the mills, the mills would be worked by the respondent in partnership with the appellants. One of those documents is agreement dated September 20, 1957, which was signed by the first appellant and the respondent a day before the respondent executed bond in favour of that appellant in view of the fact that the first appellant agreed to have his claim compensation amounting to Rs. 6,994/- adjusted towards the price of Ambernath Mills. It was stated in the agreement dated September 20, 1957, that the respondent was contemplating the formation of a joint stock company to own, run and manage the mills and it was agreed between the parties that in the event of such company being formed, the first appellant would have the option to purchase shares of the said company to the extent of 50 per cent of the amount of the adjusted claim compensation. In case the option was exercised in favour of the purchase of the shares of the company, the respondent was to ensure that the said shares would be allotted to the first appellant at par. It was further agreed that if the shares applied for or any proportion thereof were not allotted to the first appellant by the said company, the respondent would not in any way be liable to the first appellant on that account. In the bond the respondent agreed to pay to the first appellant interest at the rate of 6 per cent on the amount of compensation from the date of the adjustment of the first appellants claim compensation. Had the first appellant any interest in the Ambernath Mills which were being acquired by the respondent, there could arise no occasion for the execution of the agreement dated September 20, 1957 and the bond dated September 21, 1957. All that was agreed by the respondent in those two documents was that in case he promoted a company for owning, running and managing the Ambernath Mills, the first appellant would get a share of the value of half of his claim compensation of 6,994/-. The said amount when compared to the price of Ambernath Mills was wholly insignificant. No question could arise for the respondent borrowing money from the first appellant for payment of price of the mills, in case the acquisition of the mills was for the benefit of the respondent as well as the appellant. It may also be stated that the interest on account of the above compensation was duly paid by the respondent to the first appellant.So far as the question is concerned as to whether the claim for rendition of accounts was within time, we find that according to Clause 16 of the partnership deed dated August 30, 1952 the period of partnership was fixed at five years, being the period of the lease. Clause 17 of the deed of partnership dated February 24, 1954 provided that the "period of partnership shall be the outstanding period of such lease". The possession of Ambernath Mills under the agreement of lease was delivered on August 31, 1952. The period of five years of the lease was thus to expire on August 30, 1957.As the partnership was for a fixed period, the firm would in normal course dissolve on the expiry of the period of five years on August 30, 1957.No agreement between the partners to keep the firm in existence after the expiry of the fixed term of five years has been proved. According to Section 42 of the Indian Partnership Act, subject to contract between the partners a firm isif constituted for a fixed term, by the expiry of thatthe firm is constituted to carry out one or more adventures or undertakings, the firm, subject to a contract between the partners, would be dissolved by the completion of the adventures or undertakings. Clauses (c) and (d) deal with dissolution of firm on death of a partner of his being adjudicated insolvent.View was expressed by the learned trial Judge that the firm of SAMCO stood dissolved on May 25, 1954, when the lease was canceled. Another date of dissolution, according to the learned Judge, could be January 14, 1957, when the suit filed by the partners of that firm against the Custodian and the Central Government for permanent injunction was finally dismissed by the High Court.The appellate bench expressed the view that the firm of SAMCO stood dissolved on November 10, 1955, when the Supreme Court dismissed the appeal regarding the validity of notice. It is, in our opinion, not necessary to dilate upon this aspect of the matter because in any case there can be no manner of doubt that the firm of SAMCO got dissolved and was not subsisting after 30-8-1957 which was the date on which the period of five years for which the partnership had been formed came to an end. The question as to whether the firm got dissolved earlier than August 30, 1957 is purely academic than August 30, 1957 is purely academic and is not of much significance, because in any event in the absence of a contract to the contrary there could be no survival of the firm after August 30, 1957, when the period of partnership expired. Calculating the period of limitation even from that date, the suit for rendition of accounts brought by the appellants on December 20, 1960, was barred by limitation. It is not disputed that the period of limitation for such a suit is three years from the date of dissolution.w was expressed by the learned trial Judge that the firm of SAMCO stood dissolved on May 25, 1954, when the lease was canceled. Another date of dissolution, according to the learned Judge, could be January 14, 1957, when the suit filed by the partners of that firm against the Custodian and the Central Government for permanent injunction was finally dismissed by the High Court.The appellate bench expressed the view that the firm of SAMCO stood dissolved on November 10, 1955, when the Supreme Court dismissed the appeal regarding the validity of notice. It is, in our opinion, not necessary to dilate upon this aspect of the matter because in any case there can be no manner of doubt that the firm of SAMCO got dissolved and was not subsisting after 30-8-1957 which was the date on which the period of five years for which the partnership had been formed came to an end. The question as to whether the firm got dissolved earlier than August 30, 1957 is purely academic than August 30, 1957 is purely academic and is not of much significance, because in any event in the absence of a contract to the contrary there could be no survival of the firm after August 30, 1957, when the period of partnership expired. Calculating the period of limitation even from that date, the suit for rendition of accounts brought by the appellants on December 20, 1960, was barred by limitation. It is not disputed that the period of limitation for such a suit is three years from the date of dissolution.Our attention has also been invited to the correspondence between the first appellant and the respondent during the period from June to September, 1957. These letters reveal that the first appellant entertained hopes and expectations of deriving some benefit in case the respondent succeeded in acquiring the Ambernath Mills. The exact nature of the benefit was not, however, specified in the letters. The respondent in his replies while not belying those hopes and expectations took care not to make any commitment. After, however, the respondent succeeded in acquiring the mills, there developed a coolness in his attitude towards the first appellant. This circumstance must necessarily have caused disappointment and disillusionment to the first appellant. The respondent, is seems, kept some kind of carrot dangling before the first appellant during the delicate stage of his negotiations with the Government for the acquisition of the mills lest the first appellant did something to sabotage those efforts. After acquisition of the mills by the respondent, his attitude changed and he gave a cold rebuff to the first appellant. The above conduct of the respondent may have a bearing on the question of the award of costs, but it cannot affect our decision on the point as to whether the suit is within limitation or not. | 0 | 9,588 | 1,959 | ### Instruction:
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of the fixed period of partnership has been proved on the record.30. Reference has also been made on behalf of the appellants to the consent given by the respondent on behalf of SAMCO on November 13, 1957, to the award of Rs. 18,00,000/- by Mr. Morarji Desai in favour of the Custodian against SAMCO. It is urged that this document would go to show that the firm of SAMCO had not been dissolved before that date. We are unable to agree. The arbitration proceedings had been started as a result of application under Section 20 of the Arbitration Act filed on April 21, 1955, when SAMCO was in existence and was a running concern. The arbitration proceedings related to a claim of the Custodian of Rs. 30,00,000/- on account of the price of stocks of raw material, stores and other moveables as well as about the arrears of rent. Counter-claim had also been made by SAMCO against the Custodian for a sum of Rs. 17,67,080/- as per written statement dated December 18, 1956 filed in arbitration proceedings. The consent which was given by the respondent on November 13, 1957 was with a view to get the dispute between SAMCO with the Custodian finally settled. This was a necessary step for the purpose of winding up the affairs of SAMCO and to complete transaction of arbitration proceedings which had been begun but remained unfinished at the time of dissolution. According to Sec. 47 of the Indian Partnership Act, after the dissolution of a firm the authority of each partner to bind the firm, and the other mutual rights and obligations of the partners, continue notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise. The word "transaction" in Section 47 refers not merely to commercial transaction of purchase and sale but would include also all other matters relating to the affairs of the partnership. The completion of a transaction would cover also the taking of necessary steps in connection with the adjudication of a dispute to which a firm before its dissolution is a party. The legal position in this respect has been stated on page 251 of Lindley on Partnership (Thirteenth Edition) as under:Notwithstanding a dissolution each partner can pay, or receive payment of, a partnership debt; for it is clearly settled that payment by one of several joint debtors, or to one of several joint creditors, extinguishes the debt irrespective of any question of partnership. So, again, it has been held that a continuing or surviving partner may issue a bankruptcy notice in the firm name in respect of a judgment obtained before the dissolution, and the notice to him of the dishonour of a bill of exchange is sufficient, and that he can withdraw a deposit or sell the partnership assets, or pledge them for the purpose of completing a transaction already commenced, or securing a debt already incurred, or the overdraft on the partnership current account at the bank.The proposition, in our opinion, cannot be disputed that after dissolution, the partnership subsists merely for the purpose of completing pending transactions, winding up the business, and adjusting the rights of the partners; and for these purposes, and these only, the authority, rights, and obligations of the partners continue (see page 573 of Halsburys Laws of England Third Edition Vol. 28). We would, therefore, hold that the consent given by the respondent on November 13, 1957, to the award of Mr. Desai would not detract from the conclusion that the firm of the parties stood dissolved on the expiry of the fixed period of partnership, viz., August 30, 1957.31. The proposition of law referred to by Mr,. Desai that a dissolution does not necessarily follow because a partnership has ceased to do business would not be of any material help to the appellants because we are not basing our conclusion of the dissolution of the firm of the parties upon the fact that the partnership had ceased to do business. On the contrary, we have arrived at the above conclusion in accordance with the principle of law that a firm constituted for a fixed term shall stand dissolved, in the absence of a contract to the contrary, on the expiry of that term. Likewise, the appellants can derive no help from the decision of the Judicial Committee in Sathappa Chetty v. S. N. Subramanyan Chetty, AIR 1927 PC 70 . The said case did not relate to a firm constituted for a fixed term and no question arose in that case of a firm dissolving on the expiry of the fixed term of partnership.32. Our attention has also been invited to the correspondence between the first appellant and the respondent during the period from June to September, 1957. These letters reveal that the first appellant entertained hopes and expectations of deriving some benefit in case the respondent succeeded in acquiring the Ambernath Mills. The exact nature of the benefit was not, however, specified in the letters. The respondent in his replies while not belying those hopes and expectations took care not to make any commitment. After, however, the respondent succeeded in acquiring the mills, there developed a coolness in his attitude towards the first appellant. This circumstance must necessarily have caused disappointment and disillusionment to the first appellant. The respondent, is seems, kept some kind of carrot dangling before the first appellant during the delicate stage of his negotiations with the Government for the acquisition of the mills lest the first appellant did something to sabotage those efforts. After acquisition of the mills by the respondent, his attitude changed and he gave a cold rebuff to the first appellant. The above conduct of the respondent may have a bearing on the question of the award of costs, but it cannot affect our decision on the point as to whether the suit is within limitation or not.
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the respondent as well as the appellant. It may also be stated that the interest on account of the above compensation was duly paid by the respondent to the first appellant.So far as the question is concerned as to whether the claim for rendition of accounts was within time, we find that according to Clause 16 of the partnership deed dated August 30, 1952 the period of partnership was fixed at five years, being the period of the lease. Clause 17 of the deed of partnership dated February 24, 1954 provided that the "period of partnership shall be the outstanding period of such lease". The possession of Ambernath Mills under the agreement of lease was delivered on August 31, 1952. The period of five years of the lease was thus to expire on August 30, 1957.As the partnership was for a fixed period, the firm would in normal course dissolve on the expiry of the period of five years on August 30, 1957.No agreement between the partners to keep the firm in existence after the expiry of the fixed term of five years has been proved. According to Section 42 of the Indian Partnership Act, subject to contract between the partners a firm isif constituted for a fixed term, by the expiry of thatthe firm is constituted to carry out one or more adventures or undertakings, the firm, subject to a contract between the partners, would be dissolved by the completion of the adventures or undertakings. Clauses (c) and (d) deal with dissolution of firm on death of a partner of his being adjudicated insolvent.View was expressed by the learned trial Judge that the firm of SAMCO stood dissolved on May 25, 1954, when the lease was canceled. Another date of dissolution, according to the learned Judge, could be January 14, 1957, when the suit filed by the partners of that firm against the Custodian and the Central Government for permanent injunction was finally dismissed by the High Court.The appellate bench expressed the view that the firm of SAMCO stood dissolved on November 10, 1955, when the Supreme Court dismissed the appeal regarding the validity of notice. It is, in our opinion, not necessary to dilate upon this aspect of the matter because in any case there can be no manner of doubt that the firm of SAMCO got dissolved and was not subsisting after 30-8-1957 which was the date on which the period of five years for which the partnership had been formed came to an end. The question as to whether the firm got dissolved earlier than August 30, 1957 is purely academic than August 30, 1957 is purely academic and is not of much significance, because in any event in the absence of a contract to the contrary there could be no survival of the firm after August 30, 1957, when the period of partnership expired. Calculating the period of limitation even from that date, the suit for rendition of accounts brought by the appellants on December 20, 1960, was barred by limitation. It is not disputed that the period of limitation for such a suit is three years from the date of dissolution.w was expressed by the learned trial Judge that the firm of SAMCO stood dissolved on May 25, 1954, when the lease was canceled. Another date of dissolution, according to the learned Judge, could be January 14, 1957, when the suit filed by the partners of that firm against the Custodian and the Central Government for permanent injunction was finally dismissed by the High Court.The appellate bench expressed the view that the firm of SAMCO stood dissolved on November 10, 1955, when the Supreme Court dismissed the appeal regarding the validity of notice. It is, in our opinion, not necessary to dilate upon this aspect of the matter because in any case there can be no manner of doubt that the firm of SAMCO got dissolved and was not subsisting after 30-8-1957 which was the date on which the period of five years for which the partnership had been formed came to an end. The question as to whether the firm got dissolved earlier than August 30, 1957 is purely academic than August 30, 1957 is purely academic and is not of much significance, because in any event in the absence of a contract to the contrary there could be no survival of the firm after August 30, 1957, when the period of partnership expired. Calculating the period of limitation even from that date, the suit for rendition of accounts brought by the appellants on December 20, 1960, was barred by limitation. It is not disputed that the period of limitation for such a suit is three years from the date of dissolution.Our attention has also been invited to the correspondence between the first appellant and the respondent during the period from June to September, 1957. These letters reveal that the first appellant entertained hopes and expectations of deriving some benefit in case the respondent succeeded in acquiring the Ambernath Mills. The exact nature of the benefit was not, however, specified in the letters. The respondent in his replies while not belying those hopes and expectations took care not to make any commitment. After, however, the respondent succeeded in acquiring the mills, there developed a coolness in his attitude towards the first appellant. This circumstance must necessarily have caused disappointment and disillusionment to the first appellant. The respondent, is seems, kept some kind of carrot dangling before the first appellant during the delicate stage of his negotiations with the Government for the acquisition of the mills lest the first appellant did something to sabotage those efforts. After acquisition of the mills by the respondent, his attitude changed and he gave a cold rebuff to the first appellant. The above conduct of the respondent may have a bearing on the question of the award of costs, but it cannot affect our decision on the point as to whether the suit is within limitation or not.
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J.V. Baharuni Vs. State Of Gujarat | additional evidence on record or to direct such additional evidence to be collected by the Trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The re-enactment of the whole labour might give the impression to the litigant and the common man that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation [See State of M.P. Vs. Bhooraji (2001) 7 SCC 679 ]. 59. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under sec 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 of Cr.P.C, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under sec 263(g) of Cr.P.C. and finding thereof is given by the Magistrate under Section 263(h) of Cr.P.C. of his examination. 60. The ratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode of trial. 61. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases: 1) All the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law.2) The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.3) The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect.4) All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.5) Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.6) While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion. 62. We, therefore, direct all the Criminal Courts in the country dealing with cases falling under Section 138 of the N.I. Act to follow the above-mentioned procedure discussed in the preceding paragraphs for speedy and expeditious disposal of cases as per the purport of the Act.63. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. 64. | 1[ds]Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under sec 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 of Cr.P.C, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under sec 263(g) of Cr.P.C. and finding thereof is given by the Magistrate under Section 263(h) of Cr.P.C. of hisratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode ofto summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similarAll the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law.2) The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.3) The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect.4) All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.5) Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.6) While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion.We, therefore, direct all the Criminal Courts in the country dealing with cases falling under Section 138 of the N.I. Act to follow the above-mentioned procedure discussed in the preceding paragraphs for speedy and expeditious disposal of cases as per the purport of the Act.63. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. | 1 | 11,397 | 841 | ### Instruction:
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additional evidence on record or to direct such additional evidence to be collected by the Trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The re-enactment of the whole labour might give the impression to the litigant and the common man that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation [See State of M.P. Vs. Bhooraji (2001) 7 SCC 679 ]. 59. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under sec 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 of Cr.P.C, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under sec 263(g) of Cr.P.C. and finding thereof is given by the Magistrate under Section 263(h) of Cr.P.C. of his examination. 60. The ratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode of trial. 61. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases: 1) All the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law.2) The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.3) The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect.4) All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.5) Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.6) While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion. 62. We, therefore, direct all the Criminal Courts in the country dealing with cases falling under Section 138 of the N.I. Act to follow the above-mentioned procedure discussed in the preceding paragraphs for speedy and expeditious disposal of cases as per the purport of the Act.63. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. 64.
### Response:
1
### Explanation:
Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under sec 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 of Cr.P.C, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under sec 263(g) of Cr.P.C. and finding thereof is given by the Magistrate under Section 263(h) of Cr.P.C. of hisratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode ofto summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similarAll the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law.2) The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.3) The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect.4) All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.5) Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.6) While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion.We, therefore, direct all the Criminal Courts in the country dealing with cases falling under Section 138 of the N.I. Act to follow the above-mentioned procedure discussed in the preceding paragraphs for speedy and expeditious disposal of cases as per the purport of the Act.63. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years.
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Surja Vs. Hardeva And Ors | Under S. 18 (2) the Assistant Collector is only authorised to determine the value of the land after making such enquiries as he thinks fit. He is not authorized expressly to go into the question whether the land sought to be purchased is included in the reserved or selected area of the land-owner or not. But, obviously it must be the intention that he should go into these questions before embarking on determining the price.But by wrongly deciding that question he cannot finally confer on himself jurisdiction to deal with the matter. In exercise of the powers under Sec. 24 of the Act, read with Section 84 of the Tenancy Act, the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction . 8. It was urged before us that the orders of the Assistant Collector and the Collector were final and could not be assailed on the ground that they had wrongly jurisdiction. Reliance was placed on authorities like Brij Raj Krishna v. S. K. Shaw, 1951 SCR 145 = (AIR 1951 SC 115 ) where this Court referred to Queen v. Commrs. for Spl. Purposes of Income-tax, (1888) 21 QBD 313 and Colonial Bank of Australia v. Willan, (1874) 5 PC 417. That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (S. 11) was sought to be declared illegal, ultra vires and without jurisdiction, but we are concerned with the revisional power of the Financial Commissioner which is the same as that of the High Court. As observed by Kapur, J., speaking for the Court in Chaube Jagdish Prasad v. Chaturvedi, 1959 Supp 1 SCR 733 at p. 746 = (AIR 1959) SC 492 at p. 498) these cases have no application to the exercise or revisional power. He observed:"The appellant also relied on 1951 SCR 145 = (AIR 1951 SC 115 ) where this Court quoted with approval the observations of Lord Esher in (1888) 21 QBD 313 and (1875) 5 PC 417, where Sir James Colville said: "Accordingly the authorities....establish that an adjudication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however, essential, has been erroneously found." But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of Section 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise. The only question to be decided in the instant case is as to whether the High Court had correctly interfered under Section 115 of the Code of Civil Procedure with the order of the Civil judge. As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation and if the court wrongly decided that the fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell with the rule laid down by the Privy Council in Joy Chand Lal Babu v. Kamalaksha Chaudhary, 76 Ind App 131 = (AIR 1949 PC 239 ). The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided. The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946, and therefore fell within Section 3-A." Similarly, in Jagannath Ramchandra Datar v. Dattaraya Balwant Hingmire, Civil Appeal No. 585 of 1964, D/- 9-9-1966 (SC) this Court observed:"Therefore if it can be shown that the subordinate court without any evidence whatsoever held that the transaction in question was not a sale but a mortage and that the relationship between the parties was that of a debtor and a creditor and on that footing proceeded to exercise its power under Sections 3 and 10A of the Dekhan Agriculturists Relief Act the High Court would be entitled to interfare with such a decision under both the parts of Section 115. It would then be possible to say that the subordinate court had clutched at jurisdiction which it had not under the said section and it would also be possible to say that that court had exercised its jurisdiction illegally or with material irregularity." 9. It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under Section 24, read with Section 84 of the Tenancy Act. It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter. 10. In our opinion the Financial Commissioner should have gone into the question whether the Commissioners report was acceptable or not on merits. 11. It is urged by the learned counsel for the Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner. | 1[ds]9. It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under Section 24, read with Section 84 of the Tenancy Act. It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter10. In our opinion the Financial Commissioner should have gone into the question whether the Commissioners report was acceptable or not on merits11. It is urged by the learned counsel for the Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner. | 1 | 3,022 | 172 | ### 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:
Under S. 18 (2) the Assistant Collector is only authorised to determine the value of the land after making such enquiries as he thinks fit. He is not authorized expressly to go into the question whether the land sought to be purchased is included in the reserved or selected area of the land-owner or not. But, obviously it must be the intention that he should go into these questions before embarking on determining the price.But by wrongly deciding that question he cannot finally confer on himself jurisdiction to deal with the matter. In exercise of the powers under Sec. 24 of the Act, read with Section 84 of the Tenancy Act, the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction . 8. It was urged before us that the orders of the Assistant Collector and the Collector were final and could not be assailed on the ground that they had wrongly jurisdiction. Reliance was placed on authorities like Brij Raj Krishna v. S. K. Shaw, 1951 SCR 145 = (AIR 1951 SC 115 ) where this Court referred to Queen v. Commrs. for Spl. Purposes of Income-tax, (1888) 21 QBD 313 and Colonial Bank of Australia v. Willan, (1874) 5 PC 417. That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (S. 11) was sought to be declared illegal, ultra vires and without jurisdiction, but we are concerned with the revisional power of the Financial Commissioner which is the same as that of the High Court. As observed by Kapur, J., speaking for the Court in Chaube Jagdish Prasad v. Chaturvedi, 1959 Supp 1 SCR 733 at p. 746 = (AIR 1959) SC 492 at p. 498) these cases have no application to the exercise or revisional power. He observed:"The appellant also relied on 1951 SCR 145 = (AIR 1951 SC 115 ) where this Court quoted with approval the observations of Lord Esher in (1888) 21 QBD 313 and (1875) 5 PC 417, where Sir James Colville said: "Accordingly the authorities....establish that an adjudication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however, essential, has been erroneously found." But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of Section 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise. The only question to be decided in the instant case is as to whether the High Court had correctly interfered under Section 115 of the Code of Civil Procedure with the order of the Civil judge. As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation and if the court wrongly decided that the fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell with the rule laid down by the Privy Council in Joy Chand Lal Babu v. Kamalaksha Chaudhary, 76 Ind App 131 = (AIR 1949 PC 239 ). The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided. The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946, and therefore fell within Section 3-A." Similarly, in Jagannath Ramchandra Datar v. Dattaraya Balwant Hingmire, Civil Appeal No. 585 of 1964, D/- 9-9-1966 (SC) this Court observed:"Therefore if it can be shown that the subordinate court without any evidence whatsoever held that the transaction in question was not a sale but a mortage and that the relationship between the parties was that of a debtor and a creditor and on that footing proceeded to exercise its power under Sections 3 and 10A of the Dekhan Agriculturists Relief Act the High Court would be entitled to interfare with such a decision under both the parts of Section 115. It would then be possible to say that the subordinate court had clutched at jurisdiction which it had not under the said section and it would also be possible to say that that court had exercised its jurisdiction illegally or with material irregularity." 9. It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under Section 24, read with Section 84 of the Tenancy Act. It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter. 10. In our opinion the Financial Commissioner should have gone into the question whether the Commissioners report was acceptable or not on merits. 11. It is urged by the learned counsel for the Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner.
### Response:
1
### Explanation:
9. It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under Section 24, read with Section 84 of the Tenancy Act. It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter10. In our opinion the Financial Commissioner should have gone into the question whether the Commissioners report was acceptable or not on merits11. It is urged by the learned counsel for the Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner.
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Jitendra Kumar Vs. Oriental Insurance Co. Ltd. | District Consumer Redressal Forum, Jehanabad (District Forum) whereby the District Forum had allowed a claim of the appellant and directed the respondent-Insurance Company to pay a sum of Rs. 80,000/- as damages suffered by the appellant due to the loss of his motor vehicle and further directed the payment of Rs. 5,000/- as compensation and Rs. 1,000/- as cost of the litigation. 4. Brief facts giving rise to this appeal are as follows:The appellant was the owner of the Maruti Van bearing Registration No. BR-2/5667 which was insured with the respondent-Insurance Company. It is the case of the appellant that on 25.4.1996 at about 9.30 p.m. while returning from Gaya to Jehanabad the vehicle in question caught fire due to mechanical reasons and due to the said fire the said vehicle was burnt beyond repair. An intimation of this accidental fire was made to the respondent-Insurance Company on 14.5.1996. With the said intimation, the appellant also lodged a claim with the respondent for payment of damages. The Insurance Company as per its letter dated 10th of December, 1996 repudiated the said claim of the appellant solely on the ground that the driver did not have a valid licence at the time of the incident in question. The District Forum after hearing the parties came to the conclusion that the accidental fire due to which the appellants vehicle got damaged was not caused due to any act of the appellants driver but was due to mechanical fault, therefore, it held the contention of the Insurance Company that the appellants driver did not hold a valid licence could not be a ground to repudiate the claim, accordingly, ordered the payment of damage, compensation and cost as stated herein above.5. In an appeal filed by the Insurance Company, the State Commission reversed the said judgment holding that the driver of the vehicle did not have a valid driving licence and the original licence was fake which was inadvertently renewed by the District Transport Officer, therefore, following the judgment of the National Commission reported in 1996(1) CPR 81 (NC) (Raj Kumar and Anr. vs. New India Assurance Company & Ors.) held that the Insurance Company was justified in repudiating the claim of the appellant.6. A revision petition filed by the appellant against the said judgment of the National Commission came to be dismissed by the National Commission by the impugned order wherein the National Commission placed reliance on a judgment of this Court in the case of New India Assurance Company Ltd., Shimla vs. Kamla & Ors. (2001 4 SCC 342 ).7. As stated, it is against the above judgment of the National Commission the appellant is before us.8. Learned counsel for the appellant contended that the National Commission and the State Commission erred in coming to the conclusion that holding of valid driving licence was a condition precedent to claim any damage from the Insurance Company even when the accident in question has occurred due to no fault/or act of the driver. He submitted that the judgment of this Court in the case of New India Assurance Company (supra) has no application to the facts of this case. 9. We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver. 10. We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant. | 1[ds]10. We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant.We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence.Question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a validlicence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver. | 1 | 1,199 | 522 | ### 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:
District Consumer Redressal Forum, Jehanabad (District Forum) whereby the District Forum had allowed a claim of the appellant and directed the respondent-Insurance Company to pay a sum of Rs. 80,000/- as damages suffered by the appellant due to the loss of his motor vehicle and further directed the payment of Rs. 5,000/- as compensation and Rs. 1,000/- as cost of the litigation. 4. Brief facts giving rise to this appeal are as follows:The appellant was the owner of the Maruti Van bearing Registration No. BR-2/5667 which was insured with the respondent-Insurance Company. It is the case of the appellant that on 25.4.1996 at about 9.30 p.m. while returning from Gaya to Jehanabad the vehicle in question caught fire due to mechanical reasons and due to the said fire the said vehicle was burnt beyond repair. An intimation of this accidental fire was made to the respondent-Insurance Company on 14.5.1996. With the said intimation, the appellant also lodged a claim with the respondent for payment of damages. The Insurance Company as per its letter dated 10th of December, 1996 repudiated the said claim of the appellant solely on the ground that the driver did not have a valid licence at the time of the incident in question. The District Forum after hearing the parties came to the conclusion that the accidental fire due to which the appellants vehicle got damaged was not caused due to any act of the appellants driver but was due to mechanical fault, therefore, it held the contention of the Insurance Company that the appellants driver did not hold a valid licence could not be a ground to repudiate the claim, accordingly, ordered the payment of damage, compensation and cost as stated herein above.5. In an appeal filed by the Insurance Company, the State Commission reversed the said judgment holding that the driver of the vehicle did not have a valid driving licence and the original licence was fake which was inadvertently renewed by the District Transport Officer, therefore, following the judgment of the National Commission reported in 1996(1) CPR 81 (NC) (Raj Kumar and Anr. vs. New India Assurance Company & Ors.) held that the Insurance Company was justified in repudiating the claim of the appellant.6. A revision petition filed by the appellant against the said judgment of the National Commission came to be dismissed by the National Commission by the impugned order wherein the National Commission placed reliance on a judgment of this Court in the case of New India Assurance Company Ltd., Shimla vs. Kamla & Ors. (2001 4 SCC 342 ).7. As stated, it is against the above judgment of the National Commission the appellant is before us.8. Learned counsel for the appellant contended that the National Commission and the State Commission erred in coming to the conclusion that holding of valid driving licence was a condition precedent to claim any damage from the Insurance Company even when the accident in question has occurred due to no fault/or act of the driver. He submitted that the judgment of this Court in the case of New India Assurance Company (supra) has no application to the facts of this case. 9. We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver. 10. We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant.
### Response:
1
### Explanation:
10. We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant.We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence.Question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a validlicence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.
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State of Assam Vs. Ripa Sarma | We have heard Mr. Avijit Roy, learned counsel for the petitioner-State of Assam as well as Mr. Jayant Bhushan, learned senior counsel appearing for the respondent at length. Mr. Jayant Bhushan has raised a preliminary objection to the maintainability of the special leave petition. The petitioner herein has challenged the order passed by the Division Bench of the Gauhati High Court dated 26th February, 2010 dismissing the review petition filed by the petitioner seeking review of the judgment and order dated 20th November, 2007 rendered in Writ Appeal No. 279 of 2007. The Division Bench has dismissed the review petition on the ground that in substance, the applicant seeks rehearing of Writ Appeal No. 279 of 2007 on the basis of certain facts, which were not brought to the notice of the Court at the time of hearing of the appeal. It is not disputed before us that judgment and order dated 20th November, 2007 passed in Writ Appeal No. 279 of 2007 was not challenged by way of a special leave petition before this Court. In fact, the aforesaid judgment and order is not even challenged in the present special leave petition. Therefore, the special leave petition is restricted in its challenge, to the order passed by the Division Bench dismissing the review petition on 26th February, 2010. In support of the submission that the present special leave petition is not maintainable, Mr. Bhushan has relied on three judgments of this Court. In Shanker Motiram Nale versus Shiolalsing Gannusing Rajput reported in (1994) 2 SCC 753 , it has been held that the special leave petition which has been filed against the order rejecting the review petition would be barred under Order 47 Rule 7 of the Civil Procedure Code, 1908. The aforesaid judgment has been followed by this Court in Suseel Finance and Leasing Company versus M. Lata and others reported in (2004) 13 SCC 675. This Court held that not only was it bound by the aforesaid judgment in Shanker Motiram Nale case, but was also in agreement with it. The law laid down in both the aforesaid judgments was further reiterated in the case of M.N. Haider and others versus Kendriya Vidyalaya Sangathan and others reported in (2004) 13 SCC 677. In view of the above, the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable. Faced with this situation, Mr. Avijit Roy, learned counsel appearing for the State of Assam seeks to rely on a subsequent judgment of this Court in Eastern Coalfields Limited versus Dugal Kumar reported in (2008) 14 SCC 295. He has made a specific reference to paragraphs 22 and 23 of the judgment. In paragraph 23 of the judgment, it is observed as follows :- “It was submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.” A perusal of the aforesaid paragraph would clearly show that the judgments noticed by us in the earlier part of the order were not brought to the notice of the Court in Eastern Coalfields Limited case. This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties.In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr. Jayant Bhushan, learned senior counsel. | 0[ds]the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable. Faced with this situation, Mr. Avijit Roy, learned counsel appearing for the State of Assam seeks to rely on a subsequent judgment of this Court in Eastern Coalfields Limited versus Dugal Kumar reported in (2008) 14 SCC 295. He has made a specific reference to paragraphs 22 and 23 of the judgment. In paragraph 23 of the judgment, it is observed as followswas submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writperusal of the aforesaid paragraph would clearly show that the judgments noticed by us in the earlier part of the order were not brought to the notice of the Court in Eastern Coalfields Limited case. This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties.In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr. Jayant Bhushan, learned senior counsel. | 0 | 802 | 380 | ### 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:
We have heard Mr. Avijit Roy, learned counsel for the petitioner-State of Assam as well as Mr. Jayant Bhushan, learned senior counsel appearing for the respondent at length. Mr. Jayant Bhushan has raised a preliminary objection to the maintainability of the special leave petition. The petitioner herein has challenged the order passed by the Division Bench of the Gauhati High Court dated 26th February, 2010 dismissing the review petition filed by the petitioner seeking review of the judgment and order dated 20th November, 2007 rendered in Writ Appeal No. 279 of 2007. The Division Bench has dismissed the review petition on the ground that in substance, the applicant seeks rehearing of Writ Appeal No. 279 of 2007 on the basis of certain facts, which were not brought to the notice of the Court at the time of hearing of the appeal. It is not disputed before us that judgment and order dated 20th November, 2007 passed in Writ Appeal No. 279 of 2007 was not challenged by way of a special leave petition before this Court. In fact, the aforesaid judgment and order is not even challenged in the present special leave petition. Therefore, the special leave petition is restricted in its challenge, to the order passed by the Division Bench dismissing the review petition on 26th February, 2010. In support of the submission that the present special leave petition is not maintainable, Mr. Bhushan has relied on three judgments of this Court. In Shanker Motiram Nale versus Shiolalsing Gannusing Rajput reported in (1994) 2 SCC 753 , it has been held that the special leave petition which has been filed against the order rejecting the review petition would be barred under Order 47 Rule 7 of the Civil Procedure Code, 1908. The aforesaid judgment has been followed by this Court in Suseel Finance and Leasing Company versus M. Lata and others reported in (2004) 13 SCC 675. This Court held that not only was it bound by the aforesaid judgment in Shanker Motiram Nale case, but was also in agreement with it. The law laid down in both the aforesaid judgments was further reiterated in the case of M.N. Haider and others versus Kendriya Vidyalaya Sangathan and others reported in (2004) 13 SCC 677. In view of the above, the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable. Faced with this situation, Mr. Avijit Roy, learned counsel appearing for the State of Assam seeks to rely on a subsequent judgment of this Court in Eastern Coalfields Limited versus Dugal Kumar reported in (2008) 14 SCC 295. He has made a specific reference to paragraphs 22 and 23 of the judgment. In paragraph 23 of the judgment, it is observed as follows :- “It was submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.” A perusal of the aforesaid paragraph would clearly show that the judgments noticed by us in the earlier part of the order were not brought to the notice of the Court in Eastern Coalfields Limited case. This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties.In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr. Jayant Bhushan, learned senior counsel.
### Response:
0
### Explanation:
the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable. Faced with this situation, Mr. Avijit Roy, learned counsel appearing for the State of Assam seeks to rely on a subsequent judgment of this Court in Eastern Coalfields Limited versus Dugal Kumar reported in (2008) 14 SCC 295. He has made a specific reference to paragraphs 22 and 23 of the judgment. In paragraph 23 of the judgment, it is observed as followswas submitted by the learned counsel for the appellant that when the review petition was dismissed, the order passed by the Division Bench in intra-court appeal got merged in the order of review petition. But even otherwise, when the order passed in the review petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writperusal of the aforesaid paragraph would clearly show that the judgments noticed by us in the earlier part of the order were not brought to the notice of the Court in Eastern Coalfields Limited case. This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties.In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr. Jayant Bhushan, learned senior counsel.
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Harshwardhan & Others Vs. M/s Jai Jalaram Infrastructure Firm & Others | 1. Leave granted.2. An Agreement to Sell dated 12th October, 2010 was executed between appellant No.1 and respondent Nos. 1 to 5 for the sale of certain properties. Disputes arose between the parties as a result of which a suit for specific performance was filed in the year 2014 by the appellants before us.3. In the written statement that was filed in the said suit, a mention was made of an alleged telegram that was sent by the respondents dated 1st November, 2011, referring to cancellation of the aforesaid agreement on 22nd September, 2011. As a result of this statement, the plaintiff applied to amend the plaint seeking to add that the alleged cancellation was illegal. The trial Court, after hearing both sides, passed an order by which it allowed the amendment in the aforesaid terms:"7. It is necessary to mention here that plaintiff mention in his application that to avoid any technical complication he wanted to carry out present amendment. The ruling cited Supra (Surinder..Vs Kapoorsingh) is totally applicable to case in hand. If present amendment application allowed then no prejudice will be caused to the defendants. As discussed above the question regarding limitation so far as concerned is a mixed question of law and fact. Considering this, for the purpose of determining the real question in controversies between the parties and to adjudicate the matter on merit, application deserves to be allowed. However, in my view filing of this application after framing of issues can be compensated by imposing costs on plaintiffs. Hence, I proceed to pass the following order."4. It has also stated that this was allowed subject to payment of costs of Rs. 500/-. Against this, a writ petition under Article 227 of the Constitution of India was preferred by the respondents, and by the impugned judgment dated 31st January, 2017, the judgment has set aside the trial Court order which allowed the amendment. This was done on two grounds - first, that there is nothing to show that the knowledge of the cancellation only came to the appellants in the year 2014, and second, that what is time barred cannot be allowed even by way of amendment.5. The appellants before us have argued that in point of fact, it is clear from their application to amend, that they have stated that as a result of reading the written statement, they came to know about the alleged termination and that, therefore, the High Court was not correct on ground one. Equally, on ground two, learned counsel for the appellants argued that the question of time bar would be a mixed question of law and fact and could not be gone into at this stage.6. On the other hand, learned counsel on behalf of the respondents has argued before us that the plaintiffs evidence is over and, at this belated stage, we should not, therefore, exercise our discretion under Article 136 of the Constitution of India to set aside the impugned judgment. He also added that in March, 2016, the appellants had actually chosen to amend their plaint, which amendment was allowed, and at that stage they ought to have moved the present amendment as well, and not having done so, they have missed the bus. Further, it was argued that since no substantive pleading has been added to the plaint for cancellation, merely adding a prayer would not suffice and that, therefore, the amendment should be disallowed on these grounds.7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357 and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed. | 1[ds]7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357 and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed. | 1 | 835 | 192 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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1. Leave granted.2. An Agreement to Sell dated 12th October, 2010 was executed between appellant No.1 and respondent Nos. 1 to 5 for the sale of certain properties. Disputes arose between the parties as a result of which a suit for specific performance was filed in the year 2014 by the appellants before us.3. In the written statement that was filed in the said suit, a mention was made of an alleged telegram that was sent by the respondents dated 1st November, 2011, referring to cancellation of the aforesaid agreement on 22nd September, 2011. As a result of this statement, the plaintiff applied to amend the plaint seeking to add that the alleged cancellation was illegal. The trial Court, after hearing both sides, passed an order by which it allowed the amendment in the aforesaid terms:"7. It is necessary to mention here that plaintiff mention in his application that to avoid any technical complication he wanted to carry out present amendment. The ruling cited Supra (Surinder..Vs Kapoorsingh) is totally applicable to case in hand. If present amendment application allowed then no prejudice will be caused to the defendants. As discussed above the question regarding limitation so far as concerned is a mixed question of law and fact. Considering this, for the purpose of determining the real question in controversies between the parties and to adjudicate the matter on merit, application deserves to be allowed. However, in my view filing of this application after framing of issues can be compensated by imposing costs on plaintiffs. Hence, I proceed to pass the following order."4. It has also stated that this was allowed subject to payment of costs of Rs. 500/-. Against this, a writ petition under Article 227 of the Constitution of India was preferred by the respondents, and by the impugned judgment dated 31st January, 2017, the judgment has set aside the trial Court order which allowed the amendment. This was done on two grounds - first, that there is nothing to show that the knowledge of the cancellation only came to the appellants in the year 2014, and second, that what is time barred cannot be allowed even by way of amendment.5. The appellants before us have argued that in point of fact, it is clear from their application to amend, that they have stated that as a result of reading the written statement, they came to know about the alleged termination and that, therefore, the High Court was not correct on ground one. Equally, on ground two, learned counsel for the appellants argued that the question of time bar would be a mixed question of law and fact and could not be gone into at this stage.6. On the other hand, learned counsel on behalf of the respondents has argued before us that the plaintiffs evidence is over and, at this belated stage, we should not, therefore, exercise our discretion under Article 136 of the Constitution of India to set aside the impugned judgment. He also added that in March, 2016, the appellants had actually chosen to amend their plaint, which amendment was allowed, and at that stage they ought to have moved the present amendment as well, and not having done so, they have missed the bus. Further, it was argued that since no substantive pleading has been added to the plaint for cancellation, merely adding a prayer would not suffice and that, therefore, the amendment should be disallowed on these grounds.7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357 and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed.
### Response:
1
### Explanation:
7. Having heard learned counsel for the parties, we are of the view that there was nothing perverse in the order of the trial Court allowing the amendment. The High Court was not correct in interfering on the two grounds stated by it. As was correctly pointed out by learned counsel for the appellants, the application to amend the plaint clearly states that it is only after the written statement was filed that the application to amend has been made as the written statement referred to the alleged cancellation. Further, as has been held in "L.J. Leach & Co. Ltd. & Anr. v. Messrs. Jardine Skineer & Co.", AIR 1957 SC 357 and "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors", AIR 1957 SC 363 ", the plea of time bar is not absolute to reject amendments. As was held in those judgments, time bar is one factor to be considered, and the opposite party can always be compensated in costs, if the amendment is allowed.
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Bharat Petroleum Corp.Ltd Vs. Rama Chandrashkhar Vaidya | as provided under section 5(2) of the Act and at the expiry of the lease renewed in terms of the contract, it would be still open to the appellant to get a further renewal of the lease in exercise of the statutory right under section 5(2) of the Act. 13. In support of the submission, Mr. Sundaram relied upon the decisions of this Court in Bharat Petroleum Corporation Ltd. v. P. Kesavan and another [(2004) 9 SCC 772] and Hindustan Petroleum Corporation Ltd. And another v. Dolly Das [(1999) 4 SCC 450] . 14. The decision in P. Kesavan does not touch upon the issues raised by Mr. Sundaram and does not seem to have any application in the facts of this case. In P. Kesavan, this Court held that renewal of the lease in terms of section 5(2) of the Act takes place by operation of law and the renewal is, therefore, not dependent upon the execution or registration of a fresh deed of lease. By virtue of section 5(2), the term of the earlier lease would be deemed to be renewed on the same terms and conditions on which the earlier lease or tenancy was held regardless of the execution or registration of a fresh lease deed. This is not the question arising in the present case. 15. The case of Dolly Das is indeed quite similar to the case in hand on facts and seems to have given rise to similar issues as arising in this case. But in Dolly Das, the Court did not adjudicate on the issues and gave certain directions having regard to the special facts and circumstances of the case. Dolly Das, too, therefore, is of no help in deciding this case. 16. Therefore, the points urged by Mr. Sundaram need to be examined on their own merits. 17. On a careful consideration of the matter, we find that though Mr. Sundaram has crafted his submissions very skilfully, the points raised by him do not really arise in the facts and circumstances of the case as noted above. 18. The original 1955 lease (which, as a matter of fact, is the only lease deed that came into existence between the parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In the renewal notice, there is no reference at all to any provision, much less section 5(2) of the Act. After February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the previous lease. 19. Now, let us examine what would be the position in the absence of a fresh deed being executed and registered between the parties. There are only two possibilities; one, that the renewal notice was in exercise of the renewal clause in the lease deed. If that be so, the execution and registration of a fresh deed of lease was essential for the renewal of lease to take place. (See: State of U.P. and others v. Lalji Tandon (dead) through Lrs. [(2004) 1 SCC 1] paragraphs 13 and 14: Anthony v. K.C. Ittoop & Sons and others [(2000) 6 SCC 394] , paragraphs 8 to 11 and Hardesh Ores (P) Ltd. v. Hede and Company, [(2007) 5 SCC 614]) . 20. In case the renewal was claimed in terms of the stipulation in the lease deed (described as the contractual right by Mr. Sundaram), in the absence of a fresh deed of renewal, the appellants status became that of a month to month tenant and after twenty five years, in that relationship it would be ludicrous for the appellant to turn around and claim renewal of lease under section 5(2) of the Act.. 21. Mr. Sundaram made an attempt to argue that it was not a case of renewal of lease but a case of extension of the term of the lease and in that case no fresh deed was required to be executed and registered between the parties. In support of the submission, he relied upon two decisions of Calcutta High Court, one by a division bench in Syed Ali Kaiser v. Mstt. Ayesha Begum [AIR 1977 Calcutta 226] and the other by a learned single Judge of the same court in Ranjit Kumar Dutta v. Tapan Kumar Shaw [AIR 1997 Calcutta 278]. We need not go into the question whether an extension of lease is permissible in the absence of any fresh deed for the simple reason that this is unquestionably a case of renewal of lease and not of extension of lease. 22. Thus, in case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy by a notice under the Transfer of Property Act, 1882. 23. The other possibility is that though in the renewal notice dated October 17, 1979 there is no reference to section 5(2) of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the renewal, beginning from March 1, 1980 is to be deemed under section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties, as was held in P. Kesavan. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there can be no question of a second renewal in terms of the statutory provision. 24. Thus, viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005. | 0[ds]17. On a careful consideration of the matter, we find that though Mr. Sundaram has crafted his submissions very skilfully, the points raised by him do not really arise in the facts and circumstances of the case as noted above18. The original 1955 lease (which, as a matter of fact, is the only lease deed that came into existence between the parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In the renewal notice, there is no reference at all to any provision, much less section 5(2) of the Act. After February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the previous lease20. In case the renewal was claimed in terms of the stipulation in the lease deed (described as theby Mr. Sundaram), in the absence of a fresh deed of renewal, thes status became that of a month to month tenant and after twenty five years, in that relationship it would be ludicrous for the appellant to turn around and claim renewal of lease under section 5(2) of the Act21. Mr. Sundaram made an attempt to argue that it was not a case of renewal of lease but a case of extension of the term of the lease and in that case no fresh deed was required to be executed and registered between the parties. In support of the submission, he relied upon two decisions of Calcutta High Court, one by a division bench in Syed Ali Kaiser v. Mstt. Ayesha Begum [AIR 1977 Calcutta 226] and the other by a learned single Judge of the same court in Ranjit Kumar Dutta v. Tapan Kumar Shaw [AIR 1997 Calcutta 278]. We need not go into the question whether an extension of lease is permissible in the absence of any fresh deed for the simple reason that this is unquestionably a case of renewal of lease and not of extension of lease22. Thus, in case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy by a notice under the Transfer of Property Act, 188223. The other possibility is that though in the renewal notice dated October 17, 1979 there is no reference to section 5(2) of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the, beginning from March 1, 1980 is to be deemed under section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties, as was held in P. Kesavan. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there can be no question of a second renewal in terms of the statutory provision24. Thus, viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005. | 0 | 2,558 | 643 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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as provided under section 5(2) of the Act and at the expiry of the lease renewed in terms of the contract, it would be still open to the appellant to get a further renewal of the lease in exercise of the statutory right under section 5(2) of the Act. 13. In support of the submission, Mr. Sundaram relied upon the decisions of this Court in Bharat Petroleum Corporation Ltd. v. P. Kesavan and another [(2004) 9 SCC 772] and Hindustan Petroleum Corporation Ltd. And another v. Dolly Das [(1999) 4 SCC 450] . 14. The decision in P. Kesavan does not touch upon the issues raised by Mr. Sundaram and does not seem to have any application in the facts of this case. In P. Kesavan, this Court held that renewal of the lease in terms of section 5(2) of the Act takes place by operation of law and the renewal is, therefore, not dependent upon the execution or registration of a fresh deed of lease. By virtue of section 5(2), the term of the earlier lease would be deemed to be renewed on the same terms and conditions on which the earlier lease or tenancy was held regardless of the execution or registration of a fresh lease deed. This is not the question arising in the present case. 15. The case of Dolly Das is indeed quite similar to the case in hand on facts and seems to have given rise to similar issues as arising in this case. But in Dolly Das, the Court did not adjudicate on the issues and gave certain directions having regard to the special facts and circumstances of the case. Dolly Das, too, therefore, is of no help in deciding this case. 16. Therefore, the points urged by Mr. Sundaram need to be examined on their own merits. 17. On a careful consideration of the matter, we find that though Mr. Sundaram has crafted his submissions very skilfully, the points raised by him do not really arise in the facts and circumstances of the case as noted above. 18. The original 1955 lease (which, as a matter of fact, is the only lease deed that came into existence between the parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In the renewal notice, there is no reference at all to any provision, much less section 5(2) of the Act. After February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the previous lease. 19. Now, let us examine what would be the position in the absence of a fresh deed being executed and registered between the parties. There are only two possibilities; one, that the renewal notice was in exercise of the renewal clause in the lease deed. If that be so, the execution and registration of a fresh deed of lease was essential for the renewal of lease to take place. (See: State of U.P. and others v. Lalji Tandon (dead) through Lrs. [(2004) 1 SCC 1] paragraphs 13 and 14: Anthony v. K.C. Ittoop & Sons and others [(2000) 6 SCC 394] , paragraphs 8 to 11 and Hardesh Ores (P) Ltd. v. Hede and Company, [(2007) 5 SCC 614]) . 20. In case the renewal was claimed in terms of the stipulation in the lease deed (described as the contractual right by Mr. Sundaram), in the absence of a fresh deed of renewal, the appellants status became that of a month to month tenant and after twenty five years, in that relationship it would be ludicrous for the appellant to turn around and claim renewal of lease under section 5(2) of the Act.. 21. Mr. Sundaram made an attempt to argue that it was not a case of renewal of lease but a case of extension of the term of the lease and in that case no fresh deed was required to be executed and registered between the parties. In support of the submission, he relied upon two decisions of Calcutta High Court, one by a division bench in Syed Ali Kaiser v. Mstt. Ayesha Begum [AIR 1977 Calcutta 226] and the other by a learned single Judge of the same court in Ranjit Kumar Dutta v. Tapan Kumar Shaw [AIR 1997 Calcutta 278]. We need not go into the question whether an extension of lease is permissible in the absence of any fresh deed for the simple reason that this is unquestionably a case of renewal of lease and not of extension of lease. 22. Thus, in case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy by a notice under the Transfer of Property Act, 1882. 23. The other possibility is that though in the renewal notice dated October 17, 1979 there is no reference to section 5(2) of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the renewal, beginning from March 1, 1980 is to be deemed under section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties, as was held in P. Kesavan. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there can be no question of a second renewal in terms of the statutory provision. 24. Thus, viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005.
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0
### Explanation:
17. On a careful consideration of the matter, we find that though Mr. Sundaram has crafted his submissions very skilfully, the points raised by him do not really arise in the facts and circumstances of the case as noted above18. The original 1955 lease (which, as a matter of fact, is the only lease deed that came into existence between the parties) was for a period of 25 years and was due to expire on February 28, 1980. On October 17, 1979, the appellant gave the notice of renewal invoking the renewal clause in the lease deed. In the renewal notice, there is no reference at all to any provision, much less section 5(2) of the Act. After February 28, 1980, the appellant admittedly continued in occupation of the suit premises but it is undeniable that no fresh deed of lease was executed and registered renewing the terms of the previous lease20. In case the renewal was claimed in terms of the stipulation in the lease deed (described as theby Mr. Sundaram), in the absence of a fresh deed of renewal, thes status became that of a month to month tenant and after twenty five years, in that relationship it would be ludicrous for the appellant to turn around and claim renewal of lease under section 5(2) of the Act21. Mr. Sundaram made an attempt to argue that it was not a case of renewal of lease but a case of extension of the term of the lease and in that case no fresh deed was required to be executed and registered between the parties. In support of the submission, he relied upon two decisions of Calcutta High Court, one by a division bench in Syed Ali Kaiser v. Mstt. Ayesha Begum [AIR 1977 Calcutta 226] and the other by a learned single Judge of the same court in Ranjit Kumar Dutta v. Tapan Kumar Shaw [AIR 1997 Calcutta 278]. We need not go into the question whether an extension of lease is permissible in the absence of any fresh deed for the simple reason that this is unquestionably a case of renewal of lease and not of extension of lease22. Thus, in case, renewal was claimed under a clause of the previous lease, the appellant has no case and the lessor cannot be faulted for terminating the tenancy by a notice under the Transfer of Property Act, 188223. The other possibility is that though in the renewal notice dated October 17, 1979 there is no reference to section 5(2) of the Act, the renewal must be deemed to have taken place under that provision because the Act had come into force on January 24, 1976 and by virtue of section 5(2) of the Act, the renewal clause of the existing lease stood superseded. If the, beginning from March 1, 1980 is to be deemed under section 5(2) of the Act that would be a legally valid and correct renewal even in the absence of a fresh deed being executed between the parties, as was held in P. Kesavan. If that be the position, then the appellant has already exercised and exhausted its right under section 5(2) of the Act and there can be no question of a second renewal in terms of the statutory provision24. Thus, viewed from any angle, the appellant cannot claim any further renewal of lease beyond February 28, 2005.
|
Punithavalli Ammal Vs. Ramalingam (Minor) And Anr | by a Hindu widow, the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father - see Srinivasa Krishnarao Kango v. Narayan Devji Kango, 1955-1 SCR 1 = (AIR 1954 SC 379 ). Hence, the estate held by a widow was a defeasible estate. The same is the case with a person possessing title defeasible on adoption not only his title but also the title of all persons claiming under him will be extinguished on adoption - see Krishnamurthi v. Dhruwaraj, 1962-2 SCR 813 = (AIR 1962 SC 59 ). In fact, under the Benaras School of Mitakshara rule where a male coparcener is not entitled to alienate even for value, his undivided interest in the coparcenary property without the consent of the other coparceners, the alienation effected by a sole surviving male coparcener can be successfully challenged by a person adopted subsequent to the alienation. The fiction of relation back has been given full effect by Courts and consequences spelled out as if the fiction is a fact. The adopted son is deemed for all practical purposes, subject to some minor exceptions to have born as an aurasa son on the date his adoptive father died. Admittedly but for the relevant provisions in the Act the settlement in favour of the appellant could have afforded no basis for resisting the claim of the adopted son. Therefore, we have to see whether the provisions of the Act have effected any change in the law as regards the fiction referred to Section 4 (1) of the Act provides :"Save as otherwise expressly provided in this Act -(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect of any matter for which provision is made in this Act;(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."4. It is undisputed that the fiction of relation back in the case of adoption under Hindu law is based on Hindu law texts or rule or at any rate it is based on interpretation of Hindu law. Therefore, that rule ceased to have effect from the date the Act came into force with respect to any matter for which provision is made under the Act. Hence, we have to see whether the matter dealt with under Section 14 (1) impinges on the rule of adoption relating back to the date of death of the adoptive father.5. Adoption is a mode of affiliation which confers a right of inheritance under Hindu law. Under that law a widow in the absence of any preferential heir succeeded to the estate of her deceased husband but she took only an estate known as widows estate. After her death the property devolved on the nearest reversioner of her husband. Section 14 (1) of the Act made an important departure in that respect. That section provides :"Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her a full owner thereof and not as a limited owner."6. The explanation to the section is not necessary for our present purpose. It was conceded at the Bar that Sellathachi was in possession of the property in dispute on the date the Act came into force. By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of section 14 (1), it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous. The fiction mentioned earlier is abrogated to the extent is conflicts with the rights conferred on a Hindu female under section 14 (1) of the Act. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of Hindu Succession Act is not subject to any such restrictions. This Court held in Munna Lal v. Rajkumar, 1962 Supp (3) SCR 418 = (AIR 1962 SC 1493 )that by virtue of section 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act.In our opinion the rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof.That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.7. In our judgment the learned judges of the Madas High Court were not right in limiting the scope of section 14 (1) by taking the aid of the fiction mentioned earlier. That in our opinion is wholly impermissible. On the point under consideration the decision of the Bombay High Court in Yamunabai v. Ram Maharaj Shreedhar Maharaj (AIR 1960 Bom 463 ), lays down the law correctly. | 1[ds]6. The explanation to the section is not necessary for our present purpose. It was conceded at the Bar that Sellathachi was in possession of the property in dispute on the date the Act came into force. By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of section 14 (1), it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous. The fiction mentioned earlier is abrogated to the extent is conflicts with the rights conferred on a Hindu female under section 14 (1) of the Act. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of Hindu Succession Act is not subject to any such restrictions. This Court held in Munna Lal v. Rajkumar, 1962 Supp (3) SCR 418 = (AIR 1962 SC 1493 )that by virtue of section 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act.In our opinion the rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof.That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.7. In our judgment the learned judges of the Madas High Court were not right in limiting the scope of section 14 (1) by taking the aid of the fiction mentioned earlier. That in our opinion is wholly impermissible. On the point under consideration the decision of the Bombay High Court in Yamunabai v. Ram Maharaj Shreedhar Maharaj (AIR 1960 Bom 463 ), lays down the law correctly. | 1 | 1,497 | 483 | ### 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:
by a Hindu widow, the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father - see Srinivasa Krishnarao Kango v. Narayan Devji Kango, 1955-1 SCR 1 = (AIR 1954 SC 379 ). Hence, the estate held by a widow was a defeasible estate. The same is the case with a person possessing title defeasible on adoption not only his title but also the title of all persons claiming under him will be extinguished on adoption - see Krishnamurthi v. Dhruwaraj, 1962-2 SCR 813 = (AIR 1962 SC 59 ). In fact, under the Benaras School of Mitakshara rule where a male coparcener is not entitled to alienate even for value, his undivided interest in the coparcenary property without the consent of the other coparceners, the alienation effected by a sole surviving male coparcener can be successfully challenged by a person adopted subsequent to the alienation. The fiction of relation back has been given full effect by Courts and consequences spelled out as if the fiction is a fact. The adopted son is deemed for all practical purposes, subject to some minor exceptions to have born as an aurasa son on the date his adoptive father died. Admittedly but for the relevant provisions in the Act the settlement in favour of the appellant could have afforded no basis for resisting the claim of the adopted son. Therefore, we have to see whether the provisions of the Act have effected any change in the law as regards the fiction referred to Section 4 (1) of the Act provides :"Save as otherwise expressly provided in this Act -(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect of any matter for which provision is made in this Act;(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."4. It is undisputed that the fiction of relation back in the case of adoption under Hindu law is based on Hindu law texts or rule or at any rate it is based on interpretation of Hindu law. Therefore, that rule ceased to have effect from the date the Act came into force with respect to any matter for which provision is made under the Act. Hence, we have to see whether the matter dealt with under Section 14 (1) impinges on the rule of adoption relating back to the date of death of the adoptive father.5. Adoption is a mode of affiliation which confers a right of inheritance under Hindu law. Under that law a widow in the absence of any preferential heir succeeded to the estate of her deceased husband but she took only an estate known as widows estate. After her death the property devolved on the nearest reversioner of her husband. Section 14 (1) of the Act made an important departure in that respect. That section provides :"Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her a full owner thereof and not as a limited owner."6. The explanation to the section is not necessary for our present purpose. It was conceded at the Bar that Sellathachi was in possession of the property in dispute on the date the Act came into force. By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of section 14 (1), it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous. The fiction mentioned earlier is abrogated to the extent is conflicts with the rights conferred on a Hindu female under section 14 (1) of the Act. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of Hindu Succession Act is not subject to any such restrictions. This Court held in Munna Lal v. Rajkumar, 1962 Supp (3) SCR 418 = (AIR 1962 SC 1493 )that by virtue of section 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act.In our opinion the rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof.That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.7. In our judgment the learned judges of the Madas High Court were not right in limiting the scope of section 14 (1) by taking the aid of the fiction mentioned earlier. That in our opinion is wholly impermissible. On the point under consideration the decision of the Bombay High Court in Yamunabai v. Ram Maharaj Shreedhar Maharaj (AIR 1960 Bom 463 ), lays down the law correctly.
### Response:
1
### Explanation:
6. The explanation to the section is not necessary for our present purpose. It was conceded at the Bar that Sellathachi was in possession of the property in dispute on the date the Act came into force. By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of section 14 (1), it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous. The fiction mentioned earlier is abrogated to the extent is conflicts with the rights conferred on a Hindu female under section 14 (1) of the Act. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of Hindu Succession Act is not subject to any such restrictions. This Court held in Munna Lal v. Rajkumar, 1962 Supp (3) SCR 418 = (AIR 1962 SC 1493 )that by virtue of section 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act.In our opinion the rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof.That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.7. In our judgment the learned judges of the Madas High Court were not right in limiting the scope of section 14 (1) by taking the aid of the fiction mentioned earlier. That in our opinion is wholly impermissible. On the point under consideration the decision of the Bombay High Court in Yamunabai v. Ram Maharaj Shreedhar Maharaj (AIR 1960 Bom 463 ), lays down the law correctly.
|
Divyakant C. Mehta Vs. Income-Tax Officer, 11(2) (2) | were bound by the judgment and order of this Court in the case of Sakal Papers (P.)Ltd. v. CIT [1978] 114 ITR 256. Mr. Chatterjee submits that merely because the assessee had sent his daughter abroad for higher education, it does not mean that the deduction cannot be claimed. The relationship has nothing to do in this case when the daughter was serving in the firm of the appellant -assessee.4. We have, with the assistance of Mr.Chatterjee, perused the concurrent findings and conclusions. We are not in agreement with him that this appeal raises substantial question of law. Each of the Authorities found that this matter was distinct from Sakal Papers (P.)Ltd. (supra). It may be that both the cases involved were of daughter being sent abroad for higher education. However, in the present case what has been found is that the appellant - assessee is a firm of Advocates. The daughter joined him and immediately was sent for education abroad. The assessee has not been able to bring on record anything and particularly the scheme so as to provide higher education abroad to the employees or associates. The Commissioner of Income Tax (Appeals) has observed that in the firm of the appellant - assessee, there were at least 14 associate advocates and none were given an opportunity to go abroad prior for higher education. Some of them have worked with him for at least 15 years. In the present case within a period of 2 to 3 months after the daughter became an Advocate and joined the firm as Associate, she went abroad. The Appellant may have then stated that there was an undertaking signed or bond given to serve the firm for five years after return. But the Authorities found that not only she was allowed to continue and stay abroad, but permitted to join any firm after completing the higher education. Thus, this was not the decision taken in the interest of the activities and profession of the firm of Advocates but for furthering the career prospects of the child/ daughter. In such circumstances, neither of the Authorities committed any error or perversity in disallowing the deduction.5. The judgment in the case of Sakal Papers (P.) Ltd. (supra) must be seen in the peculiar facts and background. There, it was a closely-held company with two shareholders (Husband and wife), both directors. They are publishing a leading Marathi newspaper. Their daughter who was Master of Arts with English and French as special subjects, worked in the editorial department of the paper from September,1955, started as an apprentice. In pursuance of a resolution of the directors dated 24.3.1960, the daughter was sent to U.S.A. in September,1960, for specialised education in journalism and business administration, which the directors believed would be good for progress of the paper. She attended several top ranking schools of Journalism abroad and had returned and joined the editorial department and was working with the company. There was no agreement with the company binding her or committing to serve the company for a specified period of years. But the cumulative impact of all these events and circumstances led this Court to hold that the deduction could not have been disallowed. It was disallowed only because of the relationship with the Directors of the Company. It was disallowed on two other reasons which are not found to be germane and relevant for such dis-allowance. It is in these circumstances that this Court laid down the principle that merely because there was no commitment or contract or bond taken from the trainee, the expenditure which was otherwise proper, cannot be disallowed to the company, particularly when as a result of that expenditure the trainee had secured both a degree and training which would be of assistance to the company. She was, in fact, found to be serving the company on her return to India. These peculiar facts and circumstances must be seen while applying the ratio or principle laid down in the case of Sakal Papers (P.) Ltd. (supra). All those were completely absent in the present case. This was nothing but a desperate attempt to avoiding tax liability and by taking resort to departure of the daughter who incidentally happened to be an Advocate. The departure was for higher education and for the prospects of daughter herself. In such circumstances, this decision cannot be of any assistance to the assessee.6. The second submission also does not deserve to be accepted and which is based on the judgment of the Tribunal in the case of J.B. Advani & Co. Ltd. v. Jt. CIT [2005] 1 SOT 830 (Mum.).7. The submission is that when the Tribunals own judgment bound the Tribunal, it could not have discarded that. In that also daughter of one of the directors of assessee company, who worked as an employee of the company, was sent abroad. Not only that she was to return to India and to work for the assessee company in compliance with the agreement, but she was, in fact, made a director of the assessee company. In such circumstances, what has been indicated as a reason for disallowing the deduction is that the management studies are not relevant for carrying on a business. Furthermore, the identical expenditure for the same event was allowed in the succeeding assessment year in the case of very assessee. In such circumstances, expenditure on foreign education was allowed as business expenditure. Once again the factual position must be borne in mind before applying this judgment or seeking its assistance. There the Tribunal found as a matter of fact that it is not for the Assessing officer to determine whether son has gone abroad for higher education in any such faculty which would assist the business of assessee company or otherwise. These are not the matters which could have been determined by the Assessing officer particularly when he allowed same expenditure in succeeding year. In these circumstances, even this judgment also does not assist the assessee before us. | 0[ds]4. We have, with the assistance of Mr.Chatterjee, perused the concurrent findings and conclusions. We are not in agreement with him that this appeal raises substantial question of law. Each of the Authorities found that this matter was distinct from Sakal Papers (P.)Ltd. (supra). It may be that both the cases involved were of daughter being sent abroad for higher education. However, in the present case what has been found is that the appellantassessee is a firm of Advocates. The daughter joined him and immediately was sent for education abroad. The assessee has not been able to bring on record anything and particularly the scheme so as to provide higher education abroad to the employees or associates. The Commissioner of Income Tax (Appeals) has observed that in the firm of the appellantassessee, there were at least 14 associate advocates and none were given an opportunity to go abroad prior for higher education. Some of them have worked with him for at least 15 years. In the present case within a period of 2 to 3 months after the daughter became an Advocate and joined the firm as Associate, she went abroad. The Appellant may have then stated that there was an undertaking signed or bond given to serve the firm for five years after return. But the Authorities found that not only she was allowed to continue and stay abroad, but permitted to join any firm after completing the higher education. Thus, this was not the decision taken in the interest of the activities and profession of the firm of Advocates but for furthering the career prospects of the child/ daughter. In such circumstances, neither of the Authorities committed any error or perversity in disallowing the deduction.5. The judgment in the case of Sakal Papers (P.) Ltd. (supra) must be seen in the peculiar facts and background. There, it was acompany with two shareholders (Husband and wife), both directors. They are publishing a leading Marathi newspaper. Their daughter who was Master of Arts with English and French as special subjects, worked in the editorial department of the paper from September,1955, started as an apprentice. In pursuance of a resolution of the directors dated 24.3.1960, the daughter was sent to U.S.A. in September,1960, for specialised education in journalism and business administration, which the directors believed would be good for progress of the paper. She attended several top ranking schools of Journalism abroad and had returned and joined the editorial department and was working with the company. There was no agreement with the company binding her or committing to serve the company for a specified period of years. But the cumulative impact of all these events and circumstances led this Court to hold that the deduction could not have been disallowed. It was disallowed only because of the relationship with the Directors of the Company. It was disallowed on two other reasons which are not found to be germane and relevant for suchIt is in these circumstances that this Court laid down the principle that merely because there was no commitment or contract or bond taken from the trainee, the expenditure which was otherwise proper, cannot be disallowed to the company, particularly when as a result of that expenditure the trainee had secured both a degree and training which would be of assistance to the company. She was, in fact, found to be serving the company on her return to India. These peculiar facts and circumstances must be seen while applying the ratio or principle laid down in the case of Sakal Papers (P.) Ltd. (supra). All those were completely absent in the present case. This was nothing but a desperate attempt to avoiding tax liability and by taking resort to departure of the daughter who incidentally happened to be an Advocate. The departure was for higher education and for the prospects of daughter herself. In such circumstances, this decision cannot be of any assistance to the assessee.6. The second submission also does not deserve to be accepted and which is based on the judgment of the Tribunal in the case of J.B. AdvaniCo. Ltd. v. Jt. CIT [2005] 1 SOT 830 (Mum.).7.The submission is that when the Tribunals own judgment bound the Tribunal, it could not have discarded that.In that also daughter of one of the directors of assessee company, who worked as an employee of the company, was sent abroad. Not only that she was to return to India and to work for the assessee company in compliance with the agreement, but she was, in fact, made a director of the assessee company. In such circumstances, what has been indicated as a reason for disallowing the deduction is that the management studies are not relevant for carrying on a business. Furthermore, the identical expenditure for the same event was allowed in the succeeding assessment year in the case of very assessee. In such circumstances, expenditure on foreign education was allowed as business expenditure. Once again the factual position must be borne in mind before applying this judgment or seeking its assistance. There the Tribunal found as a matter of fact that it is not for the Assessing officer to determine whether son has gone abroad for higher education in any such faculty which would assist the business of assessee company or otherwise. These are not the matters which could have been determined by the Assessing officer particularly when he allowed same expenditure in succeeding year. In these circumstances, even this judgment also does not assist the assessee before us. | 0 | 1,380 | 1,021 | ### 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:
were bound by the judgment and order of this Court in the case of Sakal Papers (P.)Ltd. v. CIT [1978] 114 ITR 256. Mr. Chatterjee submits that merely because the assessee had sent his daughter abroad for higher education, it does not mean that the deduction cannot be claimed. The relationship has nothing to do in this case when the daughter was serving in the firm of the appellant -assessee.4. We have, with the assistance of Mr.Chatterjee, perused the concurrent findings and conclusions. We are not in agreement with him that this appeal raises substantial question of law. Each of the Authorities found that this matter was distinct from Sakal Papers (P.)Ltd. (supra). It may be that both the cases involved were of daughter being sent abroad for higher education. However, in the present case what has been found is that the appellant - assessee is a firm of Advocates. The daughter joined him and immediately was sent for education abroad. The assessee has not been able to bring on record anything and particularly the scheme so as to provide higher education abroad to the employees or associates. The Commissioner of Income Tax (Appeals) has observed that in the firm of the appellant - assessee, there were at least 14 associate advocates and none were given an opportunity to go abroad prior for higher education. Some of them have worked with him for at least 15 years. In the present case within a period of 2 to 3 months after the daughter became an Advocate and joined the firm as Associate, she went abroad. The Appellant may have then stated that there was an undertaking signed or bond given to serve the firm for five years after return. But the Authorities found that not only she was allowed to continue and stay abroad, but permitted to join any firm after completing the higher education. Thus, this was not the decision taken in the interest of the activities and profession of the firm of Advocates but for furthering the career prospects of the child/ daughter. In such circumstances, neither of the Authorities committed any error or perversity in disallowing the deduction.5. The judgment in the case of Sakal Papers (P.) Ltd. (supra) must be seen in the peculiar facts and background. There, it was a closely-held company with two shareholders (Husband and wife), both directors. They are publishing a leading Marathi newspaper. Their daughter who was Master of Arts with English and French as special subjects, worked in the editorial department of the paper from September,1955, started as an apprentice. In pursuance of a resolution of the directors dated 24.3.1960, the daughter was sent to U.S.A. in September,1960, for specialised education in journalism and business administration, which the directors believed would be good for progress of the paper. She attended several top ranking schools of Journalism abroad and had returned and joined the editorial department and was working with the company. There was no agreement with the company binding her or committing to serve the company for a specified period of years. But the cumulative impact of all these events and circumstances led this Court to hold that the deduction could not have been disallowed. It was disallowed only because of the relationship with the Directors of the Company. It was disallowed on two other reasons which are not found to be germane and relevant for such dis-allowance. It is in these circumstances that this Court laid down the principle that merely because there was no commitment or contract or bond taken from the trainee, the expenditure which was otherwise proper, cannot be disallowed to the company, particularly when as a result of that expenditure the trainee had secured both a degree and training which would be of assistance to the company. She was, in fact, found to be serving the company on her return to India. These peculiar facts and circumstances must be seen while applying the ratio or principle laid down in the case of Sakal Papers (P.) Ltd. (supra). All those were completely absent in the present case. This was nothing but a desperate attempt to avoiding tax liability and by taking resort to departure of the daughter who incidentally happened to be an Advocate. The departure was for higher education and for the prospects of daughter herself. In such circumstances, this decision cannot be of any assistance to the assessee.6. The second submission also does not deserve to be accepted and which is based on the judgment of the Tribunal in the case of J.B. Advani & Co. Ltd. v. Jt. CIT [2005] 1 SOT 830 (Mum.).7. The submission is that when the Tribunals own judgment bound the Tribunal, it could not have discarded that. In that also daughter of one of the directors of assessee company, who worked as an employee of the company, was sent abroad. Not only that she was to return to India and to work for the assessee company in compliance with the agreement, but she was, in fact, made a director of the assessee company. In such circumstances, what has been indicated as a reason for disallowing the deduction is that the management studies are not relevant for carrying on a business. Furthermore, the identical expenditure for the same event was allowed in the succeeding assessment year in the case of very assessee. In such circumstances, expenditure on foreign education was allowed as business expenditure. Once again the factual position must be borne in mind before applying this judgment or seeking its assistance. There the Tribunal found as a matter of fact that it is not for the Assessing officer to determine whether son has gone abroad for higher education in any such faculty which would assist the business of assessee company or otherwise. These are not the matters which could have been determined by the Assessing officer particularly when he allowed same expenditure in succeeding year. In these circumstances, even this judgment also does not assist the assessee before us.
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4. We have, with the assistance of Mr.Chatterjee, perused the concurrent findings and conclusions. We are not in agreement with him that this appeal raises substantial question of law. Each of the Authorities found that this matter was distinct from Sakal Papers (P.)Ltd. (supra). It may be that both the cases involved were of daughter being sent abroad for higher education. However, in the present case what has been found is that the appellantassessee is a firm of Advocates. The daughter joined him and immediately was sent for education abroad. The assessee has not been able to bring on record anything and particularly the scheme so as to provide higher education abroad to the employees or associates. The Commissioner of Income Tax (Appeals) has observed that in the firm of the appellantassessee, there were at least 14 associate advocates and none were given an opportunity to go abroad prior for higher education. Some of them have worked with him for at least 15 years. In the present case within a period of 2 to 3 months after the daughter became an Advocate and joined the firm as Associate, she went abroad. The Appellant may have then stated that there was an undertaking signed or bond given to serve the firm for five years after return. But the Authorities found that not only she was allowed to continue and stay abroad, but permitted to join any firm after completing the higher education. Thus, this was not the decision taken in the interest of the activities and profession of the firm of Advocates but for furthering the career prospects of the child/ daughter. In such circumstances, neither of the Authorities committed any error or perversity in disallowing the deduction.5. The judgment in the case of Sakal Papers (P.) Ltd. (supra) must be seen in the peculiar facts and background. There, it was acompany with two shareholders (Husband and wife), both directors. They are publishing a leading Marathi newspaper. Their daughter who was Master of Arts with English and French as special subjects, worked in the editorial department of the paper from September,1955, started as an apprentice. In pursuance of a resolution of the directors dated 24.3.1960, the daughter was sent to U.S.A. in September,1960, for specialised education in journalism and business administration, which the directors believed would be good for progress of the paper. She attended several top ranking schools of Journalism abroad and had returned and joined the editorial department and was working with the company. There was no agreement with the company binding her or committing to serve the company for a specified period of years. But the cumulative impact of all these events and circumstances led this Court to hold that the deduction could not have been disallowed. It was disallowed only because of the relationship with the Directors of the Company. It was disallowed on two other reasons which are not found to be germane and relevant for suchIt is in these circumstances that this Court laid down the principle that merely because there was no commitment or contract or bond taken from the trainee, the expenditure which was otherwise proper, cannot be disallowed to the company, particularly when as a result of that expenditure the trainee had secured both a degree and training which would be of assistance to the company. She was, in fact, found to be serving the company on her return to India. These peculiar facts and circumstances must be seen while applying the ratio or principle laid down in the case of Sakal Papers (P.) Ltd. (supra). All those were completely absent in the present case. This was nothing but a desperate attempt to avoiding tax liability and by taking resort to departure of the daughter who incidentally happened to be an Advocate. The departure was for higher education and for the prospects of daughter herself. In such circumstances, this decision cannot be of any assistance to the assessee.6. The second submission also does not deserve to be accepted and which is based on the judgment of the Tribunal in the case of J.B. AdvaniCo. Ltd. v. Jt. CIT [2005] 1 SOT 830 (Mum.).7.The submission is that when the Tribunals own judgment bound the Tribunal, it could not have discarded that.In that also daughter of one of the directors of assessee company, who worked as an employee of the company, was sent abroad. Not only that she was to return to India and to work for the assessee company in compliance with the agreement, but she was, in fact, made a director of the assessee company. In such circumstances, what has been indicated as a reason for disallowing the deduction is that the management studies are not relevant for carrying on a business. Furthermore, the identical expenditure for the same event was allowed in the succeeding assessment year in the case of very assessee. In such circumstances, expenditure on foreign education was allowed as business expenditure. Once again the factual position must be borne in mind before applying this judgment or seeking its assistance. There the Tribunal found as a matter of fact that it is not for the Assessing officer to determine whether son has gone abroad for higher education in any such faculty which would assist the business of assessee company or otherwise. These are not the matters which could have been determined by the Assessing officer particularly when he allowed same expenditure in succeeding year. In these circumstances, even this judgment also does not assist the assessee before us.
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Hindustan General Electricalcorporation Ltd Vs. Viswanath Prasad And Another | the High Court for the purpose of remitting the matter back to the Labour Court this Court examined the scope of Ss. 10, 33 and 33-A of the Industrial Disputes Act and pointed out (at p. 826):". . . . even if the requisite permission is granted to the employer under S. 33 that would not be the end of the matter, It is not as if the permission granted under S, 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal can be made, and often is, challenged by the union by raising an industrial dispute in that behalf."The contention on behalf of the workmen that disregard of a ban imposed by S. 33 of the Act would render the employers action of dismissal void and inoperative was rejected by this Court. The reason for enactment of S. 33-A was explained at p. 830 of the said report. In that case the impugned orders of dismissal had given rise to an industrial dispute which was referred to a tribunal by the appropriate Government under S. 10 and this Court observed that:"There can be no doubt that if under a complaint filed under S, 33A a tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal, the position cannot be any different when a reference is made to the tribunal like the present under S. 10. What is true about the scope of enquiry under S. 33A is a fortiori true in the case of an enquiry under S, 10. What is referred to the tribunal under S. 10 is the industrial dispute between the Bank and its employees. The alleged contravention by the Bank of S. 33 is no doubt one of the points which the tribunal has to decide; but the decision on this question does not conclude the enquiry. The tribunal would have also to consider whether the impugned orders of dismissal are otherwise justified and whether, in the light of the relevant circumstances of the case, an order of reinstatement should or should not be passed. It is only after all these aspects have been considered by the tribunal that it can adequately deal with the industrial dispute referred to it and make an appropriate award."12. The Tribunal in our view rightly refused to go into the question of the pendency of any conciliation proceeding; but, even if there was any such proceeding, it would make no difference to the result in this case. The Tribunal would still have to consider whether the employers action was justified in the light of the decision in the Indian Iron and Steel Cos case, 1958 SCR 667 = (AIR 1958 SC 130 ). In other words, the Tribunal would have to be satisfied that the allegations, if any, about want of good faith or victimisation or unfair labour practice were baseless. The Tribunal would also have to be satisfied whether any complaint was made on the score that the enquiry was vitiated by basic error or violation of any principle of natural justice and its finding on which the order of dismissal was passed was therefore perverse or without any foundation.13. The tribunal came to the conclusion that there was no justification for the respondents complaint to the police that the companys officials were in the habit of acting highhandedly and oppressively as alleged by him and further took the view that the respondents action in defaming two of the officers of the company could not but be pronounced as an act subversive of discipline and undermining the authority of the officers and thereby affecting the maintenance of peace and good order in that factory.14. Reliance was placed on a judgment of this Court in Rodrick v. Karam Chand Thapar and Bros., (1963) 1 Lab LJ 248 at p. 249 (SC) and the observation therein that:"It is well settled that if an application is made by an employee under S. 33A and it is shown that the impugned dismissal of the employee has contravened S. 33, it is open to the employer to justify the dismissal on the merits by adducing satisfactory evidence before the Tribunal."It was contended that this course was not adopted in this case. The facts in that case as found from the report are that the appellant who was a store keeper of the respondent company had been served with a charge sheet as a result of the checking of the stock in his care; this was followed by an enquiry and an order of dismissal of the appellant. The employee made an application under S. 33-A of the Act alleging that S. 32 had been contravened and he was entitled to reinstatement. The Tribunal rejected the preliminary objection of the company that an application under S. 33-A was not competent and thereafter proceeded to examine the merits of the case. As a result thereof the tribunal believed the evidence led by the respondent to hold that the appellant was guilty of misappropriation.15. To our mind, this case does not help the respondent. The Labour Court had to adjudicate upon the dispute which was referred to it; with regard to the respondent it had to go into the question as to whether he had been properly dismissed. On the material before it, it came to the conclusion that the respondents action in lodging a false complaint to the police against the conduct of the appellants officers was subversive of discipline which merited dismissal. The labour Court had the evidence before it; the lodging of the complaint was not disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. Not one of the grounds formulated in the Indian Iron and Steel Co.s case, 1958 SCR 667 = (AIR 1958 SC 130 ) which could lead the Tribunal to hold that the dismissal was improper was substantiated. | 1[ds]8. In our view the High Court did not properly appreciate the scope of S. 33 (2) (b) of the In Disputes Act and the result of the violation thereof. It is undisputed that the order of dismissal of the respondent was made after an enquiry on the basis of a charge-sheet submitted to him. In his explanation to the show cause notice the respondent admitted having lodged the complaint before the Nirsa police on 19th September, 1960 and the harassment and humiliation of two officers at the investigation by the police. He did not deny that the report made by him was false and contended himself byis for the police and the Government authority to take any action against me if my report was at allwas examined before the, Labour Court and the only statement relating to conciliation proceedings made by him was that conciliation proceedings were held before the Labour Officer and the Labour Commissioner. In our view, the High Court failed to observe that under the Act pendency of conciliation proceedings at the time when the respondent was discharged could not affect the merits of the question at all.9. The scope of sections 33 and 33-A was examined by this Court in several cases to some of which we shall presently refer. Section 33 (1) has obviously no application to the facts of this case. Section 33 (2) relates to the dismissal, discharge etc. of a workman for any misconduct not connected with an industrial dispute during the pendency of any conciliation proceeding before a conciliation officer or a Board etc. unless he had been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. Section 33-A enables a workman who has been punished by dismissal or discharge etc. to make a complaint in writing to a labour court, tribunal or National Tribunal when an employer contravenes the provisions. of S. 33 during the pendency of proceedings before Labour Court. Tribunal or National Tribunal etc. If such a complaint is made, the labour court, tribunal etc. is to adjudicate upon the complaint as if it were a dispute referred to or pending before it and in accordance with the provisions of the Act submit its award to the appropriate Government. In other words, when the conditions laid down in S. 33-A apply a workman who is punished as mentioned therein does not have to wait for a reference of an industrial dispute by an appropriate authority under S. 10 of the Act for adjudication of the dispute but can himself prefer his complaint which is to be treated in the same way as a dispute under S. 10.These sections do not lend themselves to the construction that as soon as the Labour Court, Tribunal etc. finds that there has been a violation of S. 33 it should award reinstatement. It must go through the proceedings which would have to be taken under S. 10 and it would be the duty of the labour court etc. to examine the merits of the case in the light of the principles formulated in the Indian Iron and Steel Co.s case 1958 SCR 667 = (AIR 1958 SC 130 ).10. It has not been alleged in this case that any conciliation proceedings were pending before a Labour Court, tribunal or National Tribunal as envisaged in S. 33-A. Assuming for a moment that there was a conciliation proceeding before a labour officer, S. 33-A would not be attracted. In any event it would be open to the complaining workman to take exception to the conduct of the management in ignoring the provisions of section 33 (2) (b).The Tribunal in our view rightly refused to go into the question of the pendency of any conciliation proceeding; but, even if there was any such proceeding, it would make no difference to the result in this case. The Tribunal would still have to consider whether the employers action was justified in the light of the decision in the Indian Iron and Steel Cos case, 1958 SCR 667 = (AIR 1958 SC 130 ). In other words, the Tribunal would have to be satisfied that the allegations, if any, about want of good faith or victimisation or unfair labour practice were baseless. The Tribunal would also have to be satisfied whether any complaint was made on the score that the enquiry was vitiated by basic error or violation of any principle of natural justice and its finding on which the order of dismissal was passed was therefore perverse or without any foundation.13. The tribunal came to the conclusion that there was no justification for the respondents complaint to the police that the companys officials were in the habit of acting highhandedly and oppressively as alleged by him and further took the view that the respondents action in defaming two of the officers of the company could not but be pronounced as an act subversive of discipline and undermining the authority of the officers and thereby affecting the maintenance of peace and good order in that factory.To our mind, this case does not help the respondent. The Labour Court had to adjudicate upon the dispute which was referred to it; with regard to the respondent it had to go into the question as to whether he had been properly dismissed. On the material before it, it came to the conclusion that the respondents action in lodging a false complaint to the police against the conduct of the appellants officers was subversive of discipline which merited dismissal. The labour Court had the evidence before it; the lodging of the complaint was not disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. Not one of the grounds formulated in the Indian Iron and Steel Co.s case, 1958 SCR 667 = (AIR 1958 SC 130 ) which could lead the Tribunal to hold that the dismissal was improper was substantiated. | 1 | 3,266 | 1,089 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the High Court for the purpose of remitting the matter back to the Labour Court this Court examined the scope of Ss. 10, 33 and 33-A of the Industrial Disputes Act and pointed out (at p. 826):". . . . even if the requisite permission is granted to the employer under S. 33 that would not be the end of the matter, It is not as if the permission granted under S, 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal can be made, and often is, challenged by the union by raising an industrial dispute in that behalf."The contention on behalf of the workmen that disregard of a ban imposed by S. 33 of the Act would render the employers action of dismissal void and inoperative was rejected by this Court. The reason for enactment of S. 33-A was explained at p. 830 of the said report. In that case the impugned orders of dismissal had given rise to an industrial dispute which was referred to a tribunal by the appropriate Government under S. 10 and this Court observed that:"There can be no doubt that if under a complaint filed under S, 33A a tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal, the position cannot be any different when a reference is made to the tribunal like the present under S. 10. What is true about the scope of enquiry under S. 33A is a fortiori true in the case of an enquiry under S, 10. What is referred to the tribunal under S. 10 is the industrial dispute between the Bank and its employees. The alleged contravention by the Bank of S. 33 is no doubt one of the points which the tribunal has to decide; but the decision on this question does not conclude the enquiry. The tribunal would have also to consider whether the impugned orders of dismissal are otherwise justified and whether, in the light of the relevant circumstances of the case, an order of reinstatement should or should not be passed. It is only after all these aspects have been considered by the tribunal that it can adequately deal with the industrial dispute referred to it and make an appropriate award."12. The Tribunal in our view rightly refused to go into the question of the pendency of any conciliation proceeding; but, even if there was any such proceeding, it would make no difference to the result in this case. The Tribunal would still have to consider whether the employers action was justified in the light of the decision in the Indian Iron and Steel Cos case, 1958 SCR 667 = (AIR 1958 SC 130 ). In other words, the Tribunal would have to be satisfied that the allegations, if any, about want of good faith or victimisation or unfair labour practice were baseless. The Tribunal would also have to be satisfied whether any complaint was made on the score that the enquiry was vitiated by basic error or violation of any principle of natural justice and its finding on which the order of dismissal was passed was therefore perverse or without any foundation.13. The tribunal came to the conclusion that there was no justification for the respondents complaint to the police that the companys officials were in the habit of acting highhandedly and oppressively as alleged by him and further took the view that the respondents action in defaming two of the officers of the company could not but be pronounced as an act subversive of discipline and undermining the authority of the officers and thereby affecting the maintenance of peace and good order in that factory.14. Reliance was placed on a judgment of this Court in Rodrick v. Karam Chand Thapar and Bros., (1963) 1 Lab LJ 248 at p. 249 (SC) and the observation therein that:"It is well settled that if an application is made by an employee under S. 33A and it is shown that the impugned dismissal of the employee has contravened S. 33, it is open to the employer to justify the dismissal on the merits by adducing satisfactory evidence before the Tribunal."It was contended that this course was not adopted in this case. The facts in that case as found from the report are that the appellant who was a store keeper of the respondent company had been served with a charge sheet as a result of the checking of the stock in his care; this was followed by an enquiry and an order of dismissal of the appellant. The employee made an application under S. 33-A of the Act alleging that S. 32 had been contravened and he was entitled to reinstatement. The Tribunal rejected the preliminary objection of the company that an application under S. 33-A was not competent and thereafter proceeded to examine the merits of the case. As a result thereof the tribunal believed the evidence led by the respondent to hold that the appellant was guilty of misappropriation.15. To our mind, this case does not help the respondent. The Labour Court had to adjudicate upon the dispute which was referred to it; with regard to the respondent it had to go into the question as to whether he had been properly dismissed. On the material before it, it came to the conclusion that the respondents action in lodging a false complaint to the police against the conduct of the appellants officers was subversive of discipline which merited dismissal. The labour Court had the evidence before it; the lodging of the complaint was not disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. Not one of the grounds formulated in the Indian Iron and Steel Co.s case, 1958 SCR 667 = (AIR 1958 SC 130 ) which could lead the Tribunal to hold that the dismissal was improper was substantiated.
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Disputes Act and the result of the violation thereof. It is undisputed that the order of dismissal of the respondent was made after an enquiry on the basis of a charge-sheet submitted to him. In his explanation to the show cause notice the respondent admitted having lodged the complaint before the Nirsa police on 19th September, 1960 and the harassment and humiliation of two officers at the investigation by the police. He did not deny that the report made by him was false and contended himself byis for the police and the Government authority to take any action against me if my report was at allwas examined before the, Labour Court and the only statement relating to conciliation proceedings made by him was that conciliation proceedings were held before the Labour Officer and the Labour Commissioner. In our view, the High Court failed to observe that under the Act pendency of conciliation proceedings at the time when the respondent was discharged could not affect the merits of the question at all.9. The scope of sections 33 and 33-A was examined by this Court in several cases to some of which we shall presently refer. Section 33 (1) has obviously no application to the facts of this case. Section 33 (2) relates to the dismissal, discharge etc. of a workman for any misconduct not connected with an industrial dispute during the pendency of any conciliation proceeding before a conciliation officer or a Board etc. unless he had been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. Section 33-A enables a workman who has been punished by dismissal or discharge etc. to make a complaint in writing to a labour court, tribunal or National Tribunal when an employer contravenes the provisions. of S. 33 during the pendency of proceedings before Labour Court. Tribunal or National Tribunal etc. If such a complaint is made, the labour court, tribunal etc. is to adjudicate upon the complaint as if it were a dispute referred to or pending before it and in accordance with the provisions of the Act submit its award to the appropriate Government. In other words, when the conditions laid down in S. 33-A apply a workman who is punished as mentioned therein does not have to wait for a reference of an industrial dispute by an appropriate authority under S. 10 of the Act for adjudication of the dispute but can himself prefer his complaint which is to be treated in the same way as a dispute under S. 10.These sections do not lend themselves to the construction that as soon as the Labour Court, Tribunal etc. finds that there has been a violation of S. 33 it should award reinstatement. It must go through the proceedings which would have to be taken under S. 10 and it would be the duty of the labour court etc. to examine the merits of the case in the light of the principles formulated in the Indian Iron and Steel Co.s case 1958 SCR 667 = (AIR 1958 SC 130 ).10. It has not been alleged in this case that any conciliation proceedings were pending before a Labour Court, tribunal or National Tribunal as envisaged in S. 33-A. Assuming for a moment that there was a conciliation proceeding before a labour officer, S. 33-A would not be attracted. In any event it would be open to the complaining workman to take exception to the conduct of the management in ignoring the provisions of section 33 (2) (b).The Tribunal in our view rightly refused to go into the question of the pendency of any conciliation proceeding; but, even if there was any such proceeding, it would make no difference to the result in this case. The Tribunal would still have to consider whether the employers action was justified in the light of the decision in the Indian Iron and Steel Cos case, 1958 SCR 667 = (AIR 1958 SC 130 ). In other words, the Tribunal would have to be satisfied that the allegations, if any, about want of good faith or victimisation or unfair labour practice were baseless. The Tribunal would also have to be satisfied whether any complaint was made on the score that the enquiry was vitiated by basic error or violation of any principle of natural justice and its finding on which the order of dismissal was passed was therefore perverse or without any foundation.13. The tribunal came to the conclusion that there was no justification for the respondents complaint to the police that the companys officials were in the habit of acting highhandedly and oppressively as alleged by him and further took the view that the respondents action in defaming two of the officers of the company could not but be pronounced as an act subversive of discipline and undermining the authority of the officers and thereby affecting the maintenance of peace and good order in that factory.To our mind, this case does not help the respondent. The Labour Court had to adjudicate upon the dispute which was referred to it; with regard to the respondent it had to go into the question as to whether he had been properly dismissed. On the material before it, it came to the conclusion that the respondents action in lodging a false complaint to the police against the conduct of the appellants officers was subversive of discipline which merited dismissal. The labour Court had the evidence before it; the lodging of the complaint was not disputed, that the allegations therein were false were not denied and the humiliation of the officers was not contradicted. Not one of the grounds formulated in the Indian Iron and Steel Co.s case, 1958 SCR 667 = (AIR 1958 SC 130 ) which could lead the Tribunal to hold that the dismissal was improper was substantiated.
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V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC Vs. STATE OF KERALA & ORS. ETC | no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents. 23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature. 24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. 25. In view of above, this issue is also answered against the appellant and in favour of the respondents. 26. Once again reverting back to the factual matrix of the present case, an inspection of the appellant institution was carried out on 09.11.2020 and following deficiencies were found : I. Infrastructure i. Needs thorough refinement to start a medical college. Construction of the building is not completed. II. Equipments i. Needs refined equipments in theatre, Laundry, Labs, Histopathology and Radiology. ii. Blood Bank – Nil iii. Practical Laboratories- Available I (required 3) iv. Journals - Nil v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU – Available 18 beds (required -60 beds) vi. X-Ray Mobile Unit- Available 1 (required 2) vii. No in house facilities are available and spaced are available most requirement are out sourced for Microbiology and Pathology Laboratories. III. Clinical Materials As per records, it is not clear whether a 300 bedded hospital (NMC Norms) is running for past 2 years. Records shows hospital is functioning only from 2019 onwards. On the day of inspection, Bed occupancy is 30 % only. OPD required is 600 and there is only less than 200 attendance on the day of inspection. IV. Faculty Deficiencies The following faculty deficiencies was noted: i. One Professor in the Dept. of Biochemistry. ii. Associate Professor -8 (Anatomy-1, Physiology-1, Pharmacology-1, Pathology-1, General Medicine-1, Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1) iii. Assistant Professor-11 (Anatomy-2, Physiology-3, Forensic Medicine-1, Community Medicine-1, General Medicine-1, Respiratory Medicine-1, OBG-1, Anasthesiology-1) iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2, Biochemistry-4, pathology-1, Microbiology-1, Forensic Medicine-1, General Medicine-3, Paediatrics-1, Pulmonary Medicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%. 27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020. 28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:- It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. 30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India. 31. Initial time schedule fixed under the Regulations for establishment of a new Medical College was amended in 2015 vide Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA TABLE 32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant. | 1[ds]13. In the case of Medical Council of India (Supra), it has been held that the Court has repeatedly observed that the decision taken by the Union of India on the basis of the recommendation of the expert body, cannot be interfered with lightly and interference is permissible only when the college demonstrates jurisdictional errors ex-facie perversity or malafides. In the case of The Chairman, S.R. Educational and Charitable Trust & Anr. (Supra), this Court observed as under : -High Court at the same time has ordered inspection and if the deficiencies are found to existence then the Medical Council of India and Govt. of India have been given liberty to take appropriate decision. Such orders may ruin the entire carrier of the students. Once permission to admit students is granted, it should not be such conditional one. Considering the deficiencies, it would be against the efficacious medical education and would amount to permit the unequipped medical College to impart Medical education without proper infrastructure and faculty, patients serve as the object of teaching by such an approach ultimately interest of the society would suffer and half- baked doctors cannot be left loose on society like drones and parasites to deal with the life of the patients in the absence of proper educational training. It would be dangerous and again the right to life itself in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure.16. Thus, an EC is mandatorily required by a person before he receives permission for establishment of a Medical College. The Legislative scheme that imposes the requirement of the EC is prescribed in Section 10(A) of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. The Medical Council is required to consider the same and satisfy itself by obtaining any particulars as are necessary and after having the defects if any removed, make its recommendations to the Central Government. The Central Government, may on receipt of the scheme, approve it conditionally or disapprove the same.17. The power to permit the establishment of a Medical College is thus conferred on the Central Government by the MCI Act. The Regulations referred above, were framed in exercise of powers conferred under Section 10(A) read with Section 33 of the MCI Act prescribed the qualifying criteria. These criteria lay down the eligibility to apply for permission to establish a Medical College. One of the criteria is that the person who is desirous of establishing a Medical College should obtain an Essentiality Certificate as prescribed in Form 2 of the Regulations, certifying that the State Government/Union Territory Administration has no objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material. Thus, the State Government is required to certify that it has decided to issue an Essentiality Certificate for the establishment of a Medical College with a specified number of seats in public interest and further such establishment is feasible.This Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice.Medical Council of India Regulations as well as Kerala University Health Sciences Statutes very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements. The contention of the Appellant that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted. Whilst granting the Essentiality Certificate, the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination merely a ministerial job. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College.Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even grant of CoA by the University also cannot be said to be merely a ministerial act.In view of above, we are of the considered opinion that grant of EC by the State Government and CoA by the University is not simply a ministerial act and we do not find any merit in the argument of the appellant in this regard.22. A two-Judge Bench decision in the case of Chintpurni Medical College (Supra) was considered by a three-Judge Bench in the case of Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Ors. (2020) SCC Online SC 851 In paragraph 13 of the reports, the three-Judge Bench though agreed with the dictum in Chintpurni Medical College (Supra) that the act of the State in issuing EC is a quasi-judicial function. It further went on to note the exception carved out in the case of Chintpurni Medical College (Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (Supra).Let us make it clear that there can be no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents.23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception.25. In view of above, this issue is also answered against the appellant and in favour of the respondents.27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:-It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners.30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India.32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant. | 1 | 9,062 | 2,416 | ### Instruction:
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no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents. 23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature. 24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. 25. In view of above, this issue is also answered against the appellant and in favour of the respondents. 26. Once again reverting back to the factual matrix of the present case, an inspection of the appellant institution was carried out on 09.11.2020 and following deficiencies were found : I. Infrastructure i. Needs thorough refinement to start a medical college. Construction of the building is not completed. II. Equipments i. Needs refined equipments in theatre, Laundry, Labs, Histopathology and Radiology. ii. Blood Bank – Nil iii. Practical Laboratories- Available I (required 3) iv. Journals - Nil v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU – Available 18 beds (required -60 beds) vi. X-Ray Mobile Unit- Available 1 (required 2) vii. No in house facilities are available and spaced are available most requirement are out sourced for Microbiology and Pathology Laboratories. III. Clinical Materials As per records, it is not clear whether a 300 bedded hospital (NMC Norms) is running for past 2 years. Records shows hospital is functioning only from 2019 onwards. On the day of inspection, Bed occupancy is 30 % only. OPD required is 600 and there is only less than 200 attendance on the day of inspection. IV. Faculty Deficiencies The following faculty deficiencies was noted: i. One Professor in the Dept. of Biochemistry. ii. Associate Professor -8 (Anatomy-1, Physiology-1, Pharmacology-1, Pathology-1, General Medicine-1, Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1) iii. Assistant Professor-11 (Anatomy-2, Physiology-3, Forensic Medicine-1, Community Medicine-1, General Medicine-1, Respiratory Medicine-1, OBG-1, Anasthesiology-1) iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2, Biochemistry-4, pathology-1, Microbiology-1, Forensic Medicine-1, General Medicine-3, Paediatrics-1, Pulmonary Medicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%. 27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020. 28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:- It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. 30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India. 31. Initial time schedule fixed under the Regulations for establishment of a new Medical College was amended in 2015 vide Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA TABLE 32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.
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1
### Explanation:
to note the exception carved out in the case of Chintpurni Medical College (Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (Supra).Let us make it clear that there can be no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents.23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception.25. In view of above, this issue is also answered against the appellant and in favour of the respondents.27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:-It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners.30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India.32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.
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Vishwasrao Satwarao Naik and Ors Vs. State of Maharashtra | Deepak Gupta, J.1. The Maharashtra Agriculture Land (Ceiling on Holdings) Act, 1961 (for short the Ceiling Act) was enforced with effect from 04.08.1959 in the area in question.2. Satwarao, predecessor-in-interest of the Appellant, held huge tracts of land but did not file return under the Ceiling Act. A notice was issued to him and in response to the notice, he claimed that he only held agricultural land measuring 127 acres and 8 guntas in various villages. On inquiry, the authorities prima facie found that on 04.08.1959, Satwarao held 468.08 acres of land and notice was again sent to him. He again filed reply and set up some sales, gifts and transfers which, according to him, took place prior to the enforcement of the Ceiling Act. For the purposes of deciding this case, it is not necessary to go into all the details. It would be sufficient to state that Satwarao was found to hold 333.14 acres of land. The admitted case of the parties is that keeping in view the quality of land and the area in which it is situate, the Sub Divisional Officer (SDO) held that Satwarao was entitled to retain 114 acres of land for his family. 44.51 acres of land was deducted as pot kharab land i.e. land which is totally unfit for cultivation and thus, excluded from the ceiling limit.3. Aggrieved by the order of the SDO, Satwarao filed an appeal in the Maharashtra Revenue Tribunal, Nagpur (for short the Tribunal). The Tribunal found that the extent of uncultivable land was 106.24 acres and this was to be deducted. This deduction was done on the basis of some survey report carried out by the revenue authorities. The Appellants/their predecessor-in-interest carried the matter to the High Court and finally to this Court claiming that the extent of cultivable land is more than 106.24 acres but this was not accepted. As far as the State is concerned, it never challenged the order of the Tribunal or of the High Court.4. The Act was amended later and the ceiling limit was changed to 54 acres from 114 acres. Therefore, a fresh return had to be filed. Satwarao had bequeathed his properties in favour of his daughter-in-law viz., Rajni Bai. Return on her behalf was filed by her husband Vishwasrao. In this return, it was claimed that the Appellant is holding 119.03 acres of land including some lands which were individually owned by Rajni Bai and the lands bequeathed to her by her father-in-law. It would be pertinent to mention that in the return filed by Vishwasrao on behalf of his wife, the extent of pot kharab land was only shown to be 11.10 acres. On inquiry, it was found that the actual extent of land held by the family of the Assessee was 249.19 acres. The Surplus Land Determination and Distribution Officer (for short the SLDO) found that the total extent of pot kharab land was 28.20 acres. The family was entitled to 54 acres as the ceiling limit and, therefore, 166.39 acres was declared to be excess land to be handed over to the State.5. Appeal was filed by Vishwasrao before the Tribunal and the main ground urged was that when in the earlier proceedings 106.24 land was held out to be pot kharab, how could the pot kharab land be held to be less than that. The appeal with regard to this aspect was dismissed. Thereafter, the Appellants filed writ petition in the High Court which has also been dismissed leading to the filing of the present cases.6. The main ground urged is that since in the earlier proceedings held under the Act, the extent of pot kharab land was found to be 106.24 acres, then in the second ceiling proceedings the extent of pot kharab land could not come down to 28.20 acres. In this behalf, it is urged that the revenue authorities have relied upon the revenue entries with regard to the classification of the land and have not actually visited the land to determine which land is cultivable and which land is not cultivable. In ceiling proceedings, it is the duty of the owner of the land to show which portion of his land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the officer assessed the pot kharab land as 28.20 acres. The Appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the Appellants have miserably failed to do. The Appellants have also failed to lead any evidence to show that the revenue entries are wrong. | 0[ds]In ceiling proceedings, it is the duty of the owner of the land to show which portion of his land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the officer assessed the pot kharab land as 28.20 acres. The Appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the Appellants have miserably failed to do. The Appellants have also failed to lead any evidence to show that the revenue entries are wrong. | 0 | 950 | 205 | ### 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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Deepak Gupta, J.1. The Maharashtra Agriculture Land (Ceiling on Holdings) Act, 1961 (for short the Ceiling Act) was enforced with effect from 04.08.1959 in the area in question.2. Satwarao, predecessor-in-interest of the Appellant, held huge tracts of land but did not file return under the Ceiling Act. A notice was issued to him and in response to the notice, he claimed that he only held agricultural land measuring 127 acres and 8 guntas in various villages. On inquiry, the authorities prima facie found that on 04.08.1959, Satwarao held 468.08 acres of land and notice was again sent to him. He again filed reply and set up some sales, gifts and transfers which, according to him, took place prior to the enforcement of the Ceiling Act. For the purposes of deciding this case, it is not necessary to go into all the details. It would be sufficient to state that Satwarao was found to hold 333.14 acres of land. The admitted case of the parties is that keeping in view the quality of land and the area in which it is situate, the Sub Divisional Officer (SDO) held that Satwarao was entitled to retain 114 acres of land for his family. 44.51 acres of land was deducted as pot kharab land i.e. land which is totally unfit for cultivation and thus, excluded from the ceiling limit.3. Aggrieved by the order of the SDO, Satwarao filed an appeal in the Maharashtra Revenue Tribunal, Nagpur (for short the Tribunal). The Tribunal found that the extent of uncultivable land was 106.24 acres and this was to be deducted. This deduction was done on the basis of some survey report carried out by the revenue authorities. The Appellants/their predecessor-in-interest carried the matter to the High Court and finally to this Court claiming that the extent of cultivable land is more than 106.24 acres but this was not accepted. As far as the State is concerned, it never challenged the order of the Tribunal or of the High Court.4. The Act was amended later and the ceiling limit was changed to 54 acres from 114 acres. Therefore, a fresh return had to be filed. Satwarao had bequeathed his properties in favour of his daughter-in-law viz., Rajni Bai. Return on her behalf was filed by her husband Vishwasrao. In this return, it was claimed that the Appellant is holding 119.03 acres of land including some lands which were individually owned by Rajni Bai and the lands bequeathed to her by her father-in-law. It would be pertinent to mention that in the return filed by Vishwasrao on behalf of his wife, the extent of pot kharab land was only shown to be 11.10 acres. On inquiry, it was found that the actual extent of land held by the family of the Assessee was 249.19 acres. The Surplus Land Determination and Distribution Officer (for short the SLDO) found that the total extent of pot kharab land was 28.20 acres. The family was entitled to 54 acres as the ceiling limit and, therefore, 166.39 acres was declared to be excess land to be handed over to the State.5. Appeal was filed by Vishwasrao before the Tribunal and the main ground urged was that when in the earlier proceedings 106.24 land was held out to be pot kharab, how could the pot kharab land be held to be less than that. The appeal with regard to this aspect was dismissed. Thereafter, the Appellants filed writ petition in the High Court which has also been dismissed leading to the filing of the present cases.6. The main ground urged is that since in the earlier proceedings held under the Act, the extent of pot kharab land was found to be 106.24 acres, then in the second ceiling proceedings the extent of pot kharab land could not come down to 28.20 acres. In this behalf, it is urged that the revenue authorities have relied upon the revenue entries with regard to the classification of the land and have not actually visited the land to determine which land is cultivable and which land is not cultivable. In ceiling proceedings, it is the duty of the owner of the land to show which portion of his land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the officer assessed the pot kharab land as 28.20 acres. The Appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the Appellants have miserably failed to do. The Appellants have also failed to lead any evidence to show that the revenue entries are wrong.
### Response:
0
### Explanation:
In ceiling proceedings, it is the duty of the owner of the land to show which portion of his land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the officer assessed the pot kharab land as 28.20 acres. The Appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the Appellants have miserably failed to do. The Appellants have also failed to lead any evidence to show that the revenue entries are wrong.
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SUNIL KUMAR MAITY Vs. STATE BANK OF INDIA AND ANR | responsibility in this regard. 7. The respondent-bank being aggrieved by the said order had preferred the Revision Petition before the National Commission under Section 21 (b) of the Consumer Protection Act (hereinafter referred to as the said Act). The National Commission allowed the said revision application vide the impugned order as stated hereinabove. 8. It is pertinent to note that pending the revision application, the National Commission had called for a report on the whole matter from the SBI. Accordingly, a report dated 19th March, 2019 was filed by the Regional Manager of the SBI. Relying upon the said report, the National Commission allowed the revision application filed by the bank, by observing inter-alia that though revisional jurisdiction of the Commission under section 21(b) of the Act, 1986 has a defined purview and ambit, it does allow interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. This court is at a loss to understand as to how the National Commission could have sought for a report at the revisional stage, that too from an officer of the party which already had an opportunity to submit all the documents necessary for the purpose of defending itself before the Consumer Forum, and as to how such a report in the form of an additional evidence produced at the revisional stage could be relied upon, in respect of which the two fora below had no opportunity to deal with. 9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. In the opinion of the Court, both the State Commission as well as the Consumer Forum had elaborately appreciated the documents on record and passed the reasoned orders. The report that tries to absolve the respondent-bank of its liability is based on surmises and conjectures as it abstrusely and without evidence holds that the bank has every reason to believe that wrong account number was intentionally inserted by the appellant himself for reasons best known to the appellant or on account of negligence by the appellant by not keeping the passbook in his safe and proper custody. The suppositions are contradictory as well as incredulous and fanciful. The appellant did not know the second respondent and would not have known his account number unless given to him by a bank officer. There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name. On the other hand, the bank should have been extra cautious given the fact that accounts of the appellant, Sunil Kumar Maity, and the second respondent, Sunil Maity, were with the same bank branch. What is rather surprising is that the National Commission for setting aside the findings and conclusion recorded by the District and State Forum, simply reproduced the report by one of the officers of the party in litigation with the appellant. The National Commission has not adverted and delved into the sound reasoning given by the State Commission as quoted above. 10. Though a party can produce additional evidence at the appellate stage, the same has to be within the four corners of law, that is as contemplated in order-41, R.27. The party has to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not even after due diligence, be produced by it at the time when the decree appealed against was passed. Apart from the fact that there is a vast difference between the exercise of appellate jurisdiction and the revisional jurisdiction, no such application was filed by the respondent-bank before the National Commission. Under the circumstances, calling for the report by the National Commission on its own from the officer of the bank was absolutely unwarranted. 11. Further, it is also well settled legal position CCI Chambers Coop. Hsg. Society Ltd. vs. Development Credit Bank Ltd. (2003) 7 SCC 233 that requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry. 12. The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court. | 1[ds]8. It is pertinent to note that pending the revision application, the National Commission had called for a report on the whole matter from the SBI. Accordingly, a report dated 19th March, 2019 was filed by the Regional Manager of the SBI. Relying upon the said report, the National Commission allowed the revision application filed by the bank, by observing inter-alia that though revisional jurisdiction of the Commission under section 21(b) of the Act, 1986 has a defined purview and ambit, it does allow interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. This court is at a loss to understand as to how the National Commission could have sought for a report at the revisional stage, that too from an officer of the party which already had an opportunity to submit all the documents necessary for the purpose of defending itself before the Consumer Forum, and as to how such a report in the form of an additional evidence produced at the revisional stage could be relied upon, in respect of which the two fora below had no opportunity to deal with.9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. In the opinion of the Court, both the State Commission as well as the Consumer Forum had elaborately appreciated the documents on record and passed the reasoned orders. The report that tries to absolve the respondent-bank of its liability is based on surmises and conjectures as it abstrusely and without evidence holds that the bank has every reason to believe that wrong account number was intentionally inserted by the appellant himself for reasons best known to the appellant or on account of negligence by the appellant by not keeping the passbook in his safe and proper custody. The suppositions are contradictory as well as incredulous and fanciful. The appellant did not know the second respondent and would not have known his account number unless given to him by a bank officer. There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name. On the other hand, the bank should have been extra cautious given the fact that accounts of the appellant, Sunil Kumar Maity, and the second respondent, Sunil Maity, were with the same bank branch. What is rather surprising is that the National Commission for setting aside the findings and conclusion recorded by the District and State Forum, simply reproduced the report by one of the officers of the party in litigation with the appellant. The National Commission has not adverted and delved into the sound reasoning given by the State Commission as quoted above.10. Though a party can produce additional evidence at the appellate stage, the same has to be within the four corners of law, that is as contemplated in order-41, R.27. The party has to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not even after due diligence, be produced by it at the time when the decree appealed against was passed. Apart from the fact that there is a vast difference between the exercise of appellate jurisdiction and the revisional jurisdiction, no such application was filed by the respondent-bank before the National Commission. Under the circumstances, calling for the report by the National Commission on its own from the officer of the bank was absolutely unwarranted.11. Further, it is also well settled legal position CCI Chambers Coop. Hsg. Society Ltd. vs. Development Credit Bank Ltd. (2003) 7 SCC 233 that requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry.12. The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court. | 1 | 2,407 | 1,021 | ### 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:
responsibility in this regard. 7. The respondent-bank being aggrieved by the said order had preferred the Revision Petition before the National Commission under Section 21 (b) of the Consumer Protection Act (hereinafter referred to as the said Act). The National Commission allowed the said revision application vide the impugned order as stated hereinabove. 8. It is pertinent to note that pending the revision application, the National Commission had called for a report on the whole matter from the SBI. Accordingly, a report dated 19th March, 2019 was filed by the Regional Manager of the SBI. Relying upon the said report, the National Commission allowed the revision application filed by the bank, by observing inter-alia that though revisional jurisdiction of the Commission under section 21(b) of the Act, 1986 has a defined purview and ambit, it does allow interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. This court is at a loss to understand as to how the National Commission could have sought for a report at the revisional stage, that too from an officer of the party which already had an opportunity to submit all the documents necessary for the purpose of defending itself before the Consumer Forum, and as to how such a report in the form of an additional evidence produced at the revisional stage could be relied upon, in respect of which the two fora below had no opportunity to deal with. 9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. In the opinion of the Court, both the State Commission as well as the Consumer Forum had elaborately appreciated the documents on record and passed the reasoned orders. The report that tries to absolve the respondent-bank of its liability is based on surmises and conjectures as it abstrusely and without evidence holds that the bank has every reason to believe that wrong account number was intentionally inserted by the appellant himself for reasons best known to the appellant or on account of negligence by the appellant by not keeping the passbook in his safe and proper custody. The suppositions are contradictory as well as incredulous and fanciful. The appellant did not know the second respondent and would not have known his account number unless given to him by a bank officer. There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name. On the other hand, the bank should have been extra cautious given the fact that accounts of the appellant, Sunil Kumar Maity, and the second respondent, Sunil Maity, were with the same bank branch. What is rather surprising is that the National Commission for setting aside the findings and conclusion recorded by the District and State Forum, simply reproduced the report by one of the officers of the party in litigation with the appellant. The National Commission has not adverted and delved into the sound reasoning given by the State Commission as quoted above. 10. Though a party can produce additional evidence at the appellate stage, the same has to be within the four corners of law, that is as contemplated in order-41, R.27. The party has to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not even after due diligence, be produced by it at the time when the decree appealed against was passed. Apart from the fact that there is a vast difference between the exercise of appellate jurisdiction and the revisional jurisdiction, no such application was filed by the respondent-bank before the National Commission. Under the circumstances, calling for the report by the National Commission on its own from the officer of the bank was absolutely unwarranted. 11. Further, it is also well settled legal position CCI Chambers Coop. Hsg. Society Ltd. vs. Development Credit Bank Ltd. (2003) 7 SCC 233 that requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry. 12. The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court.
### Response:
1
### Explanation:
8. It is pertinent to note that pending the revision application, the National Commission had called for a report on the whole matter from the SBI. Accordingly, a report dated 19th March, 2019 was filed by the Regional Manager of the SBI. Relying upon the said report, the National Commission allowed the revision application filed by the bank, by observing inter-alia that though revisional jurisdiction of the Commission under section 21(b) of the Act, 1986 has a defined purview and ambit, it does allow interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. This court is at a loss to understand as to how the National Commission could have sought for a report at the revisional stage, that too from an officer of the party which already had an opportunity to submit all the documents necessary for the purpose of defending itself before the Consumer Forum, and as to how such a report in the form of an additional evidence produced at the revisional stage could be relied upon, in respect of which the two fora below had no opportunity to deal with.9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. In the opinion of the Court, both the State Commission as well as the Consumer Forum had elaborately appreciated the documents on record and passed the reasoned orders. The report that tries to absolve the respondent-bank of its liability is based on surmises and conjectures as it abstrusely and without evidence holds that the bank has every reason to believe that wrong account number was intentionally inserted by the appellant himself for reasons best known to the appellant or on account of negligence by the appellant by not keeping the passbook in his safe and proper custody. The suppositions are contradictory as well as incredulous and fanciful. The appellant did not know the second respondent and would not have known his account number unless given to him by a bank officer. There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name. On the other hand, the bank should have been extra cautious given the fact that accounts of the appellant, Sunil Kumar Maity, and the second respondent, Sunil Maity, were with the same bank branch. What is rather surprising is that the National Commission for setting aside the findings and conclusion recorded by the District and State Forum, simply reproduced the report by one of the officers of the party in litigation with the appellant. The National Commission has not adverted and delved into the sound reasoning given by the State Commission as quoted above.10. Though a party can produce additional evidence at the appellate stage, the same has to be within the four corners of law, that is as contemplated in order-41, R.27. The party has to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not even after due diligence, be produced by it at the time when the decree appealed against was passed. Apart from the fact that there is a vast difference between the exercise of appellate jurisdiction and the revisional jurisdiction, no such application was filed by the respondent-bank before the National Commission. Under the circumstances, calling for the report by the National Commission on its own from the officer of the bank was absolutely unwarranted.11. Further, it is also well settled legal position CCI Chambers Coop. Hsg. Society Ltd. vs. Development Credit Bank Ltd. (2003) 7 SCC 233 that requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry.12. The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court.
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U.P.AVAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER Vs. GANGA SARAN (DEAD) THR. LRS. AND ORS | and being disposed of by this order. For the purpose of disposal we have referred to the facts which arise in the Civil Appeal arising out Special Leave Petition (Civil) No.14973 of 2010. 3. The land of the respondents-claimants admeasuring 2-13-0 of Khasra No.174 and 0-17-0 of Khasra No.175 situated in Tanda, Bulandshshar, was acquired under the provisions of the Land Acquisition Act,1894 for the purpose of implementation of the housing scheme under the provisions of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. As per the provisions of the said Act, land which is required for the purpose of housing scheme can be acquired under the provisions of the Land Acquisition Act, 1894. The Notification was issued on 29.9.1979 and declaration was issued on 20.12.1980. The Land Acquisition Officer, after conducting necessary inquiry, has passed Award on 11.10.1984. The Land Acquisition Officer in his Award fixed the compensation for the acquired land @ Rs.29.08 per sq. yard. As the respondents-claimants were not satisfied with the market value fixed, they sought reference under Section 18 of the Land Acquisition Act to the Civil Court. The Reference was made to the court of the District Judge, Bulandshehar and same was numbered as L.A.R. No.128 of 1987. The District Court, on reference made under Section 18 of the Land Acquisition Act, 1894 has answered the same by judgment dated 19.12.1994. The Reference Court has enhanced the compensation by fixing market value at Rs.99/- per sq. yard and also ordered for payment of statutory benefits. 4. Aggrieved by the judgment of the Reference Court dated 19.12.1994 passed in L.A.R. No.128 of 1987 Uttar Pradesh Avas Evam Vikas Parishad has preferred First Appeal No.354 of 1995, before the High Court of Judicature at Allahabad. By the impugned judgment dated 19.01.2010 the appeal filed by the appellant herein was dismissed. Being aggrieved, the appellant has preferred this appeal. 5. We have heard learned counsel for the appellant and learned counsel appearing for the respondents-claimants at length. 6. The learned counsel for the appellant, by referring to the impugned judgment has submitted that though the appeal preferred before the High Court is First Appeal, the High Court has dismissed the same by the impugned judgment, without re-appreciating the evidence on record. It is submitted that on this ground impugned judgment is fit to be set aside. On the other hand, learned counsel for the respondents has submitted that the Notification under Section 4 (1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979 and the respondents-claimants have not yet received the compensation which is fixed by the Reference Court, he requested to consider the judgment of the Reference Court and submitted that the fixation of market value for the acquired land @ Rs.99/- per sq. yard is just and reasonable. It is further submitted that though there is a documentary evidence on record by way of registered sale deeds, prior in point of time to the Notification issued under Section 4 (1) of the Land Acquisition Act, 1894 which show the market value of the acquired land at relevant time was around Rs.200/- per sq. yard, the Reference Court, fixed the market value for the acquired land at @ Rs. 99/- per sq. yard only. It is further submitted that in view of such documentary and oral evidence adduced before the Reference Court, there are no grounds to interfere with the impugned judgment. 7. Having heard learned counsel for the parties and we have also perused the order of the Reference Court and impugned judgment of the High Court and other materials placed on record. 8. It is true that though the appeal preferred by the appellant before the High Court is the First Appeal, the High Court has dismissed the same without appreciating evidence on record. Instead of remitting matter back to the High Court for consideration of appeal, keeping in mind that the Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979, we have considered, the judgment of the Reference Court and the evidence adduced before the Reference Court by the respondents-claimants. 9. It is the case of the respondents-claimants that the land which was required for the purpose of housing scheme is within the municipal limits and near to residential and commercial buildings. 10. From the judgment of the Reference Court and other material placed on record, it is clear that S.L.A.O. has himself admitted that the acquired land is adjacent to Abadi and suitable for residential houses. Even spot inspection made by S.L.A.O. also revealed that residential and commercial buildings were in existence near the acquired land. Further the sale deeds referred in Sl.No.1 to 4 and 20, 21 and 89 reveal that the market value of the acquired land during the relevant time was varying from Rs.100 to Rs.200 per sq. yard. Though such sale deeds were prior to the Notification, the Land Acquisition Officer has omitted to consider the same on the ground that acquired land was 48 acres in total. Further it is also to be noted that sale deeds of comparable sales of small areas also can be considered by giving suitable deductions while fixing the market value. Documentary evidence produced before the Reference Court, reflects the market value of the acquired land, during the relevant time of issuing notification, under Section 4(1) of the Land Acquisition Act, 1894 which ranges from Rs.100 to Rs.200 per sq. yard. Considering the evidence in entirety the Reference Court has fixed the market value of the acquired land at Rs.99 per sq. yard. Having regard to evidence on record, before the Reference Court, fixation of market value of the acquired land at the rate of Rs.99 per sq. yard along with other statutory benefits cannot be said to be illegal. Market value fixed by the Reference Court at Rs.99/- per sq. yard is just, reasonable and represents the true market value, as on the date of Section 4(1) Notification. | 0[ds]7. Having heard learned counsel for the parties and we have also perused the order of the Reference Court and impugned judgment of the High Court and other materials placed on record8. It is true that though the appeal preferred by the appellant before the High Court is the First Appeal, the High Court has dismissed the same without appreciating evidence on record. Instead of remitting matter back to the High Court for consideration of appeal, keeping in mind that the Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979, we have considered, the judgment of the Reference Court and the evidence adduced before the Reference Court by the respondents-claimants10. From the judgment of the Reference Court and other material placed on record, it is clear that S.L.A.O. has himself admitted that the acquired land is adjacent to Abadi and suitable for residential houses. Even spot inspection made by S.L.A.O. also revealed that residential and commercial buildings were in existence near the acquired land. Further the sale deeds referred in Sl.No.1 to 4 and 20, 21 and 89 reveal that the market value of the acquired land during the relevant time was varying from Rs.100 to Rs.200 per sq. yard. Though such sale deeds were prior to the Notification, the Land Acquisition Officer has omitted to consider the same on the ground that acquired land was 48 acres in total. Further it is also to be noted that sale deeds of comparable sales of small areas also can be considered by giving suitable deductions while fixing the market value. Documentary evidence produced before the Reference Court, reflects the market value of the acquired land, during the relevant time of issuing notification, under Section 4(1) of the Land Acquisition Act, 1894 which ranges from Rs.100 to Rs.200 per sq. yard. Considering the evidence in entirety the Reference Court has fixed the market value of the acquired land at Rs.99 per sq. yard. Having regard to evidence on record, before the Reference Court, fixation of market value of the acquired land at the rate of Rs.99 per sq. yard along with other statutory benefits cannot be said to be illegal. Market value fixed by the Reference Court at Rs.99/- per sq. yard is just, reasonable and represents the true market value, as on the date of Section 4(1) Notification. | 0 | 1,155 | 445 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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and being disposed of by this order. For the purpose of disposal we have referred to the facts which arise in the Civil Appeal arising out Special Leave Petition (Civil) No.14973 of 2010. 3. The land of the respondents-claimants admeasuring 2-13-0 of Khasra No.174 and 0-17-0 of Khasra No.175 situated in Tanda, Bulandshshar, was acquired under the provisions of the Land Acquisition Act,1894 for the purpose of implementation of the housing scheme under the provisions of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. As per the provisions of the said Act, land which is required for the purpose of housing scheme can be acquired under the provisions of the Land Acquisition Act, 1894. The Notification was issued on 29.9.1979 and declaration was issued on 20.12.1980. The Land Acquisition Officer, after conducting necessary inquiry, has passed Award on 11.10.1984. The Land Acquisition Officer in his Award fixed the compensation for the acquired land @ Rs.29.08 per sq. yard. As the respondents-claimants were not satisfied with the market value fixed, they sought reference under Section 18 of the Land Acquisition Act to the Civil Court. The Reference was made to the court of the District Judge, Bulandshehar and same was numbered as L.A.R. No.128 of 1987. The District Court, on reference made under Section 18 of the Land Acquisition Act, 1894 has answered the same by judgment dated 19.12.1994. The Reference Court has enhanced the compensation by fixing market value at Rs.99/- per sq. yard and also ordered for payment of statutory benefits. 4. Aggrieved by the judgment of the Reference Court dated 19.12.1994 passed in L.A.R. No.128 of 1987 Uttar Pradesh Avas Evam Vikas Parishad has preferred First Appeal No.354 of 1995, before the High Court of Judicature at Allahabad. By the impugned judgment dated 19.01.2010 the appeal filed by the appellant herein was dismissed. Being aggrieved, the appellant has preferred this appeal. 5. We have heard learned counsel for the appellant and learned counsel appearing for the respondents-claimants at length. 6. The learned counsel for the appellant, by referring to the impugned judgment has submitted that though the appeal preferred before the High Court is First Appeal, the High Court has dismissed the same by the impugned judgment, without re-appreciating the evidence on record. It is submitted that on this ground impugned judgment is fit to be set aside. On the other hand, learned counsel for the respondents has submitted that the Notification under Section 4 (1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979 and the respondents-claimants have not yet received the compensation which is fixed by the Reference Court, he requested to consider the judgment of the Reference Court and submitted that the fixation of market value for the acquired land @ Rs.99/- per sq. yard is just and reasonable. It is further submitted that though there is a documentary evidence on record by way of registered sale deeds, prior in point of time to the Notification issued under Section 4 (1) of the Land Acquisition Act, 1894 which show the market value of the acquired land at relevant time was around Rs.200/- per sq. yard, the Reference Court, fixed the market value for the acquired land at @ Rs. 99/- per sq. yard only. It is further submitted that in view of such documentary and oral evidence adduced before the Reference Court, there are no grounds to interfere with the impugned judgment. 7. Having heard learned counsel for the parties and we have also perused the order of the Reference Court and impugned judgment of the High Court and other materials placed on record. 8. It is true that though the appeal preferred by the appellant before the High Court is the First Appeal, the High Court has dismissed the same without appreciating evidence on record. Instead of remitting matter back to the High Court for consideration of appeal, keeping in mind that the Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979, we have considered, the judgment of the Reference Court and the evidence adduced before the Reference Court by the respondents-claimants. 9. It is the case of the respondents-claimants that the land which was required for the purpose of housing scheme is within the municipal limits and near to residential and commercial buildings. 10. From the judgment of the Reference Court and other material placed on record, it is clear that S.L.A.O. has himself admitted that the acquired land is adjacent to Abadi and suitable for residential houses. Even spot inspection made by S.L.A.O. also revealed that residential and commercial buildings were in existence near the acquired land. Further the sale deeds referred in Sl.No.1 to 4 and 20, 21 and 89 reveal that the market value of the acquired land during the relevant time was varying from Rs.100 to Rs.200 per sq. yard. Though such sale deeds were prior to the Notification, the Land Acquisition Officer has omitted to consider the same on the ground that acquired land was 48 acres in total. Further it is also to be noted that sale deeds of comparable sales of small areas also can be considered by giving suitable deductions while fixing the market value. Documentary evidence produced before the Reference Court, reflects the market value of the acquired land, during the relevant time of issuing notification, under Section 4(1) of the Land Acquisition Act, 1894 which ranges from Rs.100 to Rs.200 per sq. yard. Considering the evidence in entirety the Reference Court has fixed the market value of the acquired land at Rs.99 per sq. yard. Having regard to evidence on record, before the Reference Court, fixation of market value of the acquired land at the rate of Rs.99 per sq. yard along with other statutory benefits cannot be said to be illegal. Market value fixed by the Reference Court at Rs.99/- per sq. yard is just, reasonable and represents the true market value, as on the date of Section 4(1) Notification.
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7. Having heard learned counsel for the parties and we have also perused the order of the Reference Court and impugned judgment of the High Court and other materials placed on record8. It is true that though the appeal preferred by the appellant before the High Court is the First Appeal, the High Court has dismissed the same without appreciating evidence on record. Instead of remitting matter back to the High Court for consideration of appeal, keeping in mind that the Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued as early as on 29.9.1979, we have considered, the judgment of the Reference Court and the evidence adduced before the Reference Court by the respondents-claimants10. From the judgment of the Reference Court and other material placed on record, it is clear that S.L.A.O. has himself admitted that the acquired land is adjacent to Abadi and suitable for residential houses. Even spot inspection made by S.L.A.O. also revealed that residential and commercial buildings were in existence near the acquired land. Further the sale deeds referred in Sl.No.1 to 4 and 20, 21 and 89 reveal that the market value of the acquired land during the relevant time was varying from Rs.100 to Rs.200 per sq. yard. Though such sale deeds were prior to the Notification, the Land Acquisition Officer has omitted to consider the same on the ground that acquired land was 48 acres in total. Further it is also to be noted that sale deeds of comparable sales of small areas also can be considered by giving suitable deductions while fixing the market value. Documentary evidence produced before the Reference Court, reflects the market value of the acquired land, during the relevant time of issuing notification, under Section 4(1) of the Land Acquisition Act, 1894 which ranges from Rs.100 to Rs.200 per sq. yard. Considering the evidence in entirety the Reference Court has fixed the market value of the acquired land at Rs.99 per sq. yard. Having regard to evidence on record, before the Reference Court, fixation of market value of the acquired land at the rate of Rs.99 per sq. yard along with other statutory benefits cannot be said to be illegal. Market value fixed by the Reference Court at Rs.99/- per sq. yard is just, reasonable and represents the true market value, as on the date of Section 4(1) Notification.
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Vikash Kumar Vs. Union Public Service Commission & Ors | such as the appellant who suffers from a chronic neurological condition would be deprived of a statutory right of equal opportunity in gaining an appointment to public services. To do so would negate both the constitutional right and its statutory recognition in the provisions of the RPwD Act, 2016. J. The language of our discourse 67. The shift in the way we view disability – as a social construct rather than an individual pathology – must also translate into a linguistic shift in the way we refer to persons with disabilities. The language of our discourse must evince a clear desire to make the disabled feel empowered and included, not alienated and situated on a different footing from their able-bodied counterparts - whether on a pedestal or in a cage.(Paraphrased from - CNN, Ginsburg: The pedestal you put women on is a cage, 12th February, 2018, available at https://www.youtube.com/watch/sJ9Got6C500) 68. The Tribunal, in its judgment, couched the disability of the appellant in terms of suffering and disease. Specifically, in its order dated 30 May 2018, the Tribunal, at para 5, noted: The applicant is suffering with a disease called Writers Cramp. In its order dated 7 August 2018, at para 7, the Tribunal refers to those suffering with disabilities. Even if the usage is unintentional, we cannot ignore its enduring impact in shaping the way the society views the disabled and the way they view themselves. Viewing disability as an affliction that causes suffering, or that views it as a God-given fate (whether a blessing or a curse) is rooted in the medical model of disability. Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities. 69. In its concluding observations on India, the CRPD Committee notes with concern references to normal life as opposed to the lives of persons with disabilities and derogatory terminology such as mentally ill and divyangjan, which as it notes, remains controversial(CRPD Committee, Concluding Observations on India, para 6[b].). It is our earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the CRPD Committee has generated, will find a resonance in the language we use to refer to them. K. Realizing the transformative potential of the Rights of Persons with Disabilities Act 2016: From principle to practice 70. In the hearing, one of us presciently noted that the imposition of the criterion of a benchmark disability to access a scribe – an arena in which it has no relevance as per the statutory framework – betrays a profound lack of awareness on the part of the authorities about the RPwD Act 2016. The OM of 29 August 2018, in its preambular portion recites as follows: The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act. 71. As one commentator notes, if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.(Ibid.) Another notes that there exists no justification for this move. The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018. 72. If the legal entitlements set forth in the RPwD Act 2016 are to not remain mere parchment, reflected in our inability to overcome barriers against substantively unequal treatment, the nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard, Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. Based on Article 8, the RPwD Act 2016 captures the need for the State to conduct and promote awareness campaigns and sensitization programmes in Section 39. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life. Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like. The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts. L. Case of the appellant 73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writers cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016. 74. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government. M. Formulation of new policy concerning access to scribes for persons with disabilities | 1[ds]13. Broadly speaking, there are two sets of regulatory provisions which hold the field. The first consists of the notifications issued by the DoPT in the Ministry of Personnel, Public Grievances and Pensions.Apart from the notification which has been issued by the UPSC, there are guidelines which have been prescribed by the MSJE in the Department of Empowerment of Persons with Disabilities. A notification has been issued on 4 January 2018 in exercise of the powers conferred by Section 56 of the RPwD Act, 2016.19. On 29 August 2018, the MSJE in the Department of Empowerment of Persons with Disabilities issued an Office Memorandum. The OM is titled: Guidelines for conducting written examination for persons with benchmark disabilities. The OM notes that the Department issued guidelines for conducting written examinations for persons with disabilities defined under the erstwhile legislation, namely the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995(1995 Act). These guidelines were issued on 26 February 2013.The above guidelines envisage the provision of a scribe to candidates with benchmark disabilities in written examinations. The policy also recognises that there should be a measure of flexibility to accommodate specific needs on a case-to-case basis. Under the guidelines, the facility of a scribe is envisaged to any person with a benchmark disability as defined under Section 2(r) and having a limitation in writing, including of speed. Under the guidelines, candidates with benchmark disabilities comprised within the categories of (i) blind candidates; (ii) candidates suffering from locomotor disability (both arms affected); and (iii) cerebral palsy are entitled at their choice to the facility of a scribe or, as the case may be, a reader or lab assistant. In the case of persons falling within other categories of benchmark disabilities a scribe, reader or lab assistant can be allowed upon the production of a certificate that the person concerned has physical limitation to write and scribe is essential to write examination on his behalf. The certificate has to be issued by the CMO, Civil Surgeon or Medical Superintendent of a government healthcare institution in the proforma appended as Annexure-1.The important point to note is that the guidelines of the MSJE dated 29 August 2018 recognise the entitlement to a scribe only for candidates with benchmark disabilities. Among them, candidates belonging to three categories – the blind and those with locomotor disability or cerebral palsy - are to be given the facility if so desired. In the case of candidates with other benchmark disabilities, such a facility is to be extended upon a certificate which is issued in terms as noted above.Following the notification which was issued on 29 August 2018, the rules for the conduct of CSE were amended.The above amendment is similar to the guidelines prescribed by the OM dated 29 August 2018.Contrasted with the position which has been adopted on affidavit before this Court by the UPSC, a more nuanced view has been suggested by the reply filed on behalf of the MSJE. The Ministry, while reiterating the guidelines which have been framed on 29 August 2018 states that writers cramp is not specifically included in the list of specified disabilities contained in the schedule to the RPwD Act, 2016 and accordingly the guidelines stated above are not applicable to a person suffering from writers cramp. Having said this, the Ministry states:G. That it is noteworthy to mention that there are certain other medical conditions which are not identified as disabilities per se but which may have implications hampering the writing capability of a person without manifesting into any specified disability. Therefore, it is the responsibility of the examining body to consider such cases for the purpose of granting scribe, extra time and likewise in consultation with the Ministry of Health and Family Welfare on production of medical certificate similar in line with that of other categories of persons with benchmark disabilities.23. MSJE is the nodal ministry which is entrusted with implementing the provisions of the RPwD Act, 2016. As the nodal ministry, it has formulated guidelines on 29 August 2018. These guidelines, as we have noticed earlier, confine access to a scribe, reader or lab assistant to candidates having benchmark disabilities within the meaning of Section 2(r). Yet, as the nodal ministry, it recognizes that these guidelines are not exhaustive of the circumstances or conditions in which a scribe can be provided. On the contrary, the MSJE has recognized the prevalence of other medical conditions not identified as disabilities per se but which may hamper the writing capability of a person. It specifically leaves it open to every examining body to consider such cases for the grant of scribe, extra time or other facilities in consultation with the Ministry of Health and Family Welfare against the production of a medical certificate, in line with those prescribed for candidates with benchmark disabilities.24. This view of the nodal ministry has evidently not percolated to UPSC which, on the other hand, considers itself to be strictly bound, without deviation, from the rules specified by DoPT for the conduct of the CSE. Notwithstanding the views of the MSJE, the UPSC does not recognize that the guidelines dated 29 August 2018 vest it with the discretion to provide accommodations on a case-by- case basis, beyond those spelt out in the guidelines. The rules which hold the field are in terms of the guidelines dated 29 August 2018. UPSC has therefore specifically stated before this Court that a candidate who does not fulfill the description of a person with benchmark disabilities would not be entitled to a scribe. These divergent views of two Central Ministries before the Court are symptomatic of a policy disconnect. We express our disquiet about the fact that, in a policy matter with profound consequences for Indias disabled population, the left hand does not know what the right one is doing.25. It is in this backdrop that the Court must resolve the issue, bearing as it does on the rights of similarly situated candidates. The RPwD Act, 2016 embodies two distinct concepts when it speaks of (i) persons with benchmark disabilities and (ii) persons with disability. In defining a person with benchmark disability, Section 2(r) encompasses two categories: (i) a person with not less than 40 per cent of a specified disability, where the specified disability has not been defined in measurable terms and (ii) a person with disability where the specified disability has been defined in measurable terms, as certified by the certifying authority. In other words, Section 2(r) encompasses both a situation where a specified disability has not been defined in measurable terms, in which event it means a person with not less than 40 per cent of the specified disability but also where a specified disability has been defined in measurable terms. A certification by the certifying authority is contemplated in regard to whether the person concerned does in fact meet the specified norm as quantified.26. The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others.27. Section 2(s) is significant because it recognizes firstly, the nature of the impairment, secondly, the interconnection of the impairment with various barriers and thirdly, the impact of the impairment in hindering full and effective participation on a footing of equality. On the first aspect namely the nature of the impairment, Section 2(s) requires that the impairment should be long term - physical, mental, intellectual or sensory. The statutory definition has evidently recognized that it is the nature of the impairment in its interaction with barriers that results in the full and effective participation of the person in society equally with others being hampered. Section 2(s) is, in other words, a far-reaching recognition by the legislature of disability as not only a function of a physical or mental impairment but of its interaction with barriers resulting in a social milieu which prevents the realization of full, effective and equal participation in society.28. Both as a matter of textual construction and bearing in mind the purpose and object underlying the term, it is necessary to emphasise that the definition in Section 2(s) cannot be constricted by the measurable quantifications tagged with the definition under Section 2(r).29. The concept of a benchmark disability under Section 2(r) cannot be conflated with the notion of disability under Section 2(s). The definition in Section 2(r) applies in the case of a specified disability.The Central government has been empowered to notify any other category as a specified disability.30. The concept of benchmark disabilities under the RPwD Act, 2016 has specifically been adopted in relation with the provisions of Chapter VI and Chapter VII. Chapter VI contains special provisions for persons with benchmark disabilities. Among those provisions is Section 31 (free education for children with benchmark disability), Section 32 (reservation in higher educational institutions), Section 33 (identification of posts for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and Section 37 (Special Schemes and Development Programmes). Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities has been adopted by the legislation bearing in mind specific provisions which are contained in the law for persons meeting this description.31. Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary purpose underlying the enactment of the RPwD Act 2016. Worse still, to deny the rights and entitlements recognized for persons with disabilities on the ground that they do not fulfill a benchmark disability would be plainly ultra vires the RPwD Act 2016.32. Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.33. The fundamental postulate upon which the RPwD Act 2016 is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities.34. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India (2016) 7 SCC 761 , noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons with disabilities, to pave the way for substantive equality. Justice A K Sikri stated in the above judgement:40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.35. The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality – are an obligation as a society – to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to remember Justice R M Lodhas (as he then was) observation in Justice Sunanda Bhandare Foundation v. Union of India (2018) 2 SCC 397 , where he stated:9…In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic…36. The RPwD Act 2016 was a landmark legislation which repealed the 1995 Act and brought Indian legislation on disability in line with the United Nations Convention on the Rights of Persons with Disabilities(UNCRPD). Under the old regime, disability was simply characterized as a medical condition devoid of any understanding of how disability is produced by social structures that cater to able- bodied persons and hamper and deny equal participation of persons with disabilities in the society.The RPwD Act 2016 has a more inclusive definition of persons with disability evidencing a shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability which recognizes that it is the societal and physical constraint that are at the heart of exclusion of persons with disabilities from full and effective participation in societyThe RPwD Act, 2016 now recognizes 21 specified disabilities and enables the Central Government to add further categories of disability. The 2016 Act also makes special provisions for persons with benchmark disability under Chapter VI and VII of the Act. A person with benchmark disability is defined under Section 2(r) of the 2016 Act [analyzed in para 25 above]It is clear from the scheme of the RPwD Act, 2016 that person with disability and person with benchmark disability are treated as separate categories of individuals having different rights and protections. A third category of individuals persons with disability having high support needs has also been defined under the RPwD Act 2016.37. The general principle of reasonable accommodation did not find a place in the 1995 Act. The provision for taking aid of a scribe was limited to blind students or students with low vision in educational institutions.The principle of reasonable accommodation has found a more expansive manifestation in the RPwD Act 2016. Section 3 of the RPwD Act 2016 goes beyond a formal guarantee of non-discrimination by casting affirmative duties and obligations on government to protect the rights recognized in Section 3 by taking steps to utilize the capacity of persons with disabilities by providing appropriate environment. Among the obligations which are cast on the government is the duty to take necessary steps to ensure reasonable accommodation for persons with disabilities. The concept of reasonable accommodation in Section 2(y) incorporates making necessary and appropriate modification and adjustments so long as they do not impose a disproportionate or undue burden in a particular case to ensure to persons with disability the enjoyment or exercise of rights equally with others. Equality, non-discrimination and dignity are the essence of the protective ambit of the RPwD Act 2016.38. While most of the obligations under the RPwD Act 2016 are cast upon the government or local authorities, the Act and rules made under it have also imposed certain obligations on the private sector. The role of the private sector in the market has increased manifold since the advent of liberalisation in India. The RPwD Act 2016 recognizes that with the burgeoning role of the private sector in generating employment in India, an active responsibility has to be cast upon private employers to create an inclusive workforce by providing persons with disabilities equal opportunities in the job market. However, the guarantee of equal opportunity must be accompanied by the provision of reasonable accommodation. The Rules framed under the RPwD Act 2016 stipulate that private establishments shall not discriminate against persons with disability on the ground of disability.(Rule 3 (1) of the Rights of Persons with Disabilities Rules, 2017) It is to be noted that the definition of discrimination under Section 2(h) of the RPwD Act, 2016 includes denial of reasonable accommodation. Private employers are mandated to frame an equal opportunity policy(Section 21 of the RPwD Act, 2016 read with Rule 8 of the Rights of Persons with Disabilities Rules, 2017). Equal opportunity policies for establishments having more than 20 employees are required to include provisions relating to (i) appointment of liaison officers in establishments to look after the recruitment of persons with disabilities and provisions of facilities and amenities for such employees(Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017); (ii) identification of posts/vacancies for disabled persons(Rule 8(3) (b) of the Rights of Persons with Disabilities Rules, 2017); (iii) provision of additional facilities and benefits such as training facilities, assistive devices, barrier free accessibility, preference in transfer and promotion, allotment of residential accommodation and special leave(Rule 8 (3) sub-clauses (c) and (d) of the Rights of Persons with Disabilities Rules, 2017). The RPwD Act 2016 further provides that private establishments have to conform with accessibility norms stipulated by the government with respect to building plans(Section 44 of the RPwD Act, 2016). The RPwD Act 2016 also provides that 5 % of the workforce of establishments receiving incentives from the appropriate government would be comprised of persons having benchmark disability(Section 35 of RPwD Act, 2016). This Court in Union of India v. National Federation of the Blind (2013) 10 SCC 772 has recognized that employment opportunities play an instrumental role in empowering persons with disabilities. Justice P. Sathasivam (as he then was) observed:50. Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.It is imperative that not only the government but also the private sector takes proactive steps for the implementation of the RPwD Act 2016.39. The RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more normal or better than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference. Recognizing the state of affairs created by centuries of sequestering and discrimination that this discrete and insular minority has faced for no fault on its part, the RPwD Act 2016 aims to provide them an even platform to thrive, to flourish and offer their unique contribution to the world. It is based on the simple idea with profound implications that each of us has: unique powers to share with the world and make it interesting and richer.(Sonia Sotomayor,, Just Ask!: Be Different, be Brave, be You [2019, Penguin] letter to the reader.) By opening doors for them and attenuating the barriers thwarting the realization of their full potential, it seeks to ensure that they are no longer treated as second class citizens.40. It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker. The other provisions of Chapter II follow upon the basic postulates embodied in Section 3 by applying them in specific contexts to ensure rights in various milieus such as community life, reproduction, access to justice and guardianship. Chapter III of the RPwD Act, 2016 recognises specific duties on the part of educational institutions.Section 17 speaks of specific measures to promote and facilitate inclusive education. Among them, Clause (g) contemplates the provision of books, learning materials and assistive devices for students with benchmark disabilities free of cost up to the age of eighteen. Section 17(i) requires suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as (i) extra time for completion of examination (ii) the facility of scribe or amanuensis (iii) exemption from second and third language courses. The guarantee under Section 17 (i) is not confined to persons with benchmark disabilities but extends to students with disabilities. It is thus evident that the legislature has made a clear distinction between disability and benchmark disability. Section 20 provides a mandate of non-discrimination in employment. Under Section 21, every establishment is under a mandate to notify equal opportunity policies setting out the measures which will be adopted in pursuance of the provisions of Chapter IV. Chapter V provides guarantees for social security, health, rehabilitation and recreation to persons with disabilities.41. When the government in recognition of its affirmative duties and obligations under the RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil Services Examination, it cannot be construed to confer a largesse. Nor does it by allowing a scribe confer a privilege on a candidate. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity. There is a fundamental fallacy on the part of the UPSE/DoPT in proceeding on the basis that the facility of a scribe shall be made available only to persons with benchmark disabilities. This is occasioned by the failure of the MSJE to clarify their guidelines. The whole concept of a benchmark disability within the meaning of Section 2(r) is primarily in the context of special provisions including reservation that are embodied in Chapter VI of the RPwD Act 2016. Conceivably, the Parliament while mandating the reservation of posts in government establishments and of seats in institutions of higher learning was of the view that this entitlement should be recognized for persons with benchmark disabilities. As a matter of legislative policy, these provisions in Chapter VI have been made disability is stipulated. Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. A statutory concept which has been applied by Parliament in specific situations cannot be extended to others where the broader expression, persons with disability, is used statutorily. The guidelines which have been framed on 29 August 2018 can by no means be regarded as being exhaustive of the situations in which a scribe can be availed of by persons other than those who suffer from benchmark disabilities. The MSJE does not in its counter affidavit before this Court treat those guidelines as exhaustive of the circumstances in which a scribe can be provided for persons other than those having benchmark disabilities. This understanding of the MSJE is correct for the simple reason that the rights which emanate from provisions such as Section 3 extend to persons with disability as broadly defined by Section 2(s).42. We are, therefore, of the view that DoPT and UPSC have fundamentally erred in the construction which has been placed on the provisions of the RPwD Act 2016. To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.43. At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the RPwD Act, 2016 . Intrinsic to its realization is recognizing the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects, respects and facilitates individual autonomy. In seeking to project these values as inalienable rights of the disabled, the RPwD Act, 2016 travels beyond being merely a charter of non-discrimination. It travels beyond imposing restraints on discrimination against the disabled. The law does this by imposing a positive obligation on the State to secure the realization of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law. In its emphasis on substantive equality, the enactment of the legislation is a watershed event in providing a legal foundation for equality of opportunity to the disabled.44. As a social construct, disability encompasses features broader and more comprehensive than a medical condition. The RPwD Act, 2016 recognizes that disability results in inequality of access to a range of public and private entitlements. The handicaps which the disabled encounter emerge out of disabilitys engagement with the barriers created by prejudice, discrimination and societal indifference. Operating as restraining factors, these barriers have origins which can be traced to physical, social, economic and psychological conditions in society. Operating on the pre-existing restraints posed by disability, these barriers to development produce outcomes in which the disabled bear an unequal share of societal burdens. The legislation has recognized that remedies for the barriers encountered by the disabled are to be found in the social environment in which they live, work and co-habit with others. The barriers encountered by every disabled person can be remedied by recognizing comprehensive rights as inhering in them; rights which impose duties and obligations on others.45. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals dignity and worth is respected. Under this route, the powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.(Reasonable Accommodation In A Multicultural Society, Address to the Canadian Bar Association Continuing Legal Education Committee and the National Constitutional and Human Rights Law Section, April 7, 1995, Calgary, Alberta at 1).46. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence – whether as students, members of the workplace, participants in governance or, on a personal plane, in realizing the fulfilling privacies of family life. The accommodation which the law mandates is reasonable because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence.48. Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated. The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature. The intersectional features arise in particular contexts due to the presence of multiple disabilities and multiple consequences arising from disability. Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations. Reasonable accommodation cannot be construed in a way that denies to each disabled person the customization she seeks. Even if she is in a class of her own, her needs must be met.(Amita Dhanda, Prof. of Law, NALSAR, In a class of my own: Reasonable accommodation from a disability perspective [ppt presentation].) While assessing the reasonableness of an accommodation, regard must also be had to the benefit that the accommodation can have, not just for the disabled person concerned, but also for other disabled people similarly placed in future.49. As the Committee on the Rights of Persons with Disabilities(CRPD Committee) noted in General Comment 6, reasonable accommodation is a component of the principle of inclusive equality. (CRPD Committee, General Comment 6 on Equality and Non-discrimination (2018) [GC 6], CRPD/C/GC/6, 26th April, 2018, para 11.) It is a substantive equality facilitator. The establishment of this linkage between reasonable accommodation and non-discrimination thus creates an obligation of immediate effect. Under this rights-based and disabled- centric conceptualization of reasonable accommodation, a failure to provide reasonable accommodation constitutes discrimination. Reasonable accommodation determinations must be made on a case-by-case basis, in consultation with the disabled person concerned.(CRPD Committee, GC 6 at para 25[c].) Instead of making assumptions about how the relevant barriers can be tackled, the principle of reasonable accommodation requires dialogue with the individual concerned to determine how to tackle the barrier.50. The concept of reasonable accommodation as a component of the equality guarantee has been recognized in a consistent line of precedents of this Court.(Rajive Raturi v. Union of India and Ors., 2017 (14) SCALE 412 , Jeeja Ghosh and Anr. v. Union of India and Ors. (2016) 7 SCC 761 and Disabled Rights Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.) 51. A discordant note struck by this Court having a direct bearing on the principle of reasonable accommodation finds expression in a two judge Bench decision of this Court in the case of V Surendra Mohan v. State of Tamil Nadu (2019) 4 SCC 237. (Mohan). The proceedings before this Court arose from a judgment of the Madras High Court. At issue was the decision of the Tamil Nadu Public Service Commission(TNPC) to impose a ceiling of 40-50% visual/hearing impairment to be eligible to be appointed as a Civil Judge (Junior Division). Differently stated, a person whose visual/hearing impairment exceeded 50% was disqualified from being eligible for the said post. In the said case, the appellants disability was 70%. The appellants name was not included in the list of registered numbers who were provisionally admitted to the oral test. He challenged this in the Madras High Court. By its judgment dated 5 June 2015, the Madras High Court held that, as per the decision of the Government dated 8 August 2014 and notification issued by the TNPC dated 26 August 2014, those partially blind with 40%-50% disability were only eligible and the appellant having 70% disability was not eligible to participate in the selection.52. A two judge Bench of this Court held that a judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction. This court affirmed the submission of the Madras High Court that seeking to address the socially constructed barriers faced by a visually or hearing impaired judge, whose disability exceeds 50%, would create avoidable complications. As a result, the impugned ceiling was found to be valid. The relevant portion of the judgment is excerpted below:40... The High Court in its additional statement has incapsulated the functions and duties of Civil Judge in following words:-Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications.Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.53. This judgment was delivered by this Court after India became a party to the UNCRPD and the RPwD Act 2016, came into force. The aforesaid view espoused by this Court is innocent of the principle of reasonable accommodation. This Court did not consider whether the failure of the TNPC to provide reasonable accommodation to a judge with a disability above the impugned ceiling was statutorily or constitutionally tenable. There is no reference in this Courts judgment to whether the appellant would have been able to discharge the duties of a Civil Judge (Junior Division), after being provided the reasonable accommodations necessitated by his disability.54. The analysis by this Court in the portion excerpted above begs the question. Specifically, the relevant question, under the reasonable grant of a reasonable accommodation. By definition, reasonable accommodation demands departure from the status quo and hence avoidable complications are inevitable.54. The analysis by this Court in the portion excerpted above begs the question. Specifically, the relevant question, under the reasonable grant of a reasonable accommodation. By definition, reasonable accommodation demands departure from the status quo and hence avoidable complications are inevitable.The relevant question is whether such accommodations would give rise to a disproportionate or undue burden.The two tests are entirely different.55. As we have noted previously, the cornerstone of the reasonable accommodation principle is making adjustments that enable a disabled person to effectively counter the barriers posed by their disability. Conspicuous by its absence is any reasonable accommodation analysis whatsoever by this Court in Mohan. Such an analysis would have required a consideration of the specific accommodations needed, the cost of providing them, reference to the efficacy with which other judges with more than 40-50% visual/hearing impairment in India and abroad can discharge judicial duties after being provided the necessary accommodations, amongst other factors. In holding that the ceiling was reasonable on the application of the principle of reasonable accommodation, the ratio as expounded fails as distinct exhortatory dimension that must always be kept in mind while determining whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able- bodied person is reasonable. (First Group Plc v. Paulley [2017] UKSC 4, para 117 [Lord Kerr - partly dissenting].) It is persons with disabilities who have been the victim of this lapse.56. In light of the fact that the view of this court in Mohan was rendered in a case under the 1995 Act which has now been replaced by the RPwD Act 2016 and in light of the absence of a reasonable accommodation analysis by this Court, the Mohan judgment stands on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the RPwD Act 2016.57. The ASGs argument that a whole swath of facilities are provided to the disabled without enquiring into the percentage of their disability and that a percentage is only essential in cases such as the present is flawed for two reasons. First, the inarticulate premise underpinning this argument appears to be that the legally guaranteed entitlements of the disabled are privileges doled out by the state and bespeaks an incorrect understanding of the concept of reasonable accommodation. Since reasonable accommodation is a component of the duty not to discriminate against the disabled, as we have explained above, the state is bound to provide these facilities to its disabled citizens. A robust conception of reasonable accommodation needs to be adopted.58. Second, and relatedly, this being so, it can be no answer to tell a disabled candidate whose disability genuinely necessitates access to a scribe that they are already being given all the above facilities. Providing those facilities does not absolve the state of the obligation to provide a disabled candidate access to a scribe, when this need is clearly established as being relatable to their disability.59. The ASG referred to the difficulty caused to her by dint of having carpel tunnel syndrome as an example of the dangerous consequences that would flow from opening the door too widely when it comes to granting scribes. In the hearing, examples were also cited of individuals having a small, everyday problem and expecting a scribe on that basis. While valid, such comparisons may end up creating a false equivalence between those with a legitimate disability- based reasonable accommodation need and others with everyday life problems. (IDAP Interview Series: Interview XV with Judge Ronald M. Gould, response to q. 13, available at https://www.idialaw.org/blog/idap-interview-series-interview-xv-with-judge-ronald-m-gould/) Therefore, it has to be ensured that we do not make light of, or trivialize, the needs of those whose disability may not meet the quantitative threshold of 40% but are nonetheless disabling enough to merit the grant of the reasonable accommodation of a scribe and extra time. As the CRPD Committee notes, it is wrong to expect a person with disability to be disabled enough to claim the accommodations necessitated by their disability.(CRPD Committee, GC 6, para 73[b].) Such an approach would not be in consonance with the progressive outlook of the RPwD Act 2016.60. The ASGs argument that the appellant must be subjected to further medical examinations, even though his disability has been accepted, is emblematic of a key barrier that often comes in the way of the disabled being able to access reasonable accommodation in India. As the CRPD Committee observes in its concluding observations on India, the competent authorities must ensure that multiple assessments [as to existence of disability] do not create an undue burden for applicants.(CRPD Committee, Concluding Observations on the Report of India, [Concluding Observations], GE. 19- 18639[E], 24th September, 2019, para 7[b].)61. The party contending that a particular accommodation will impose a disproportionate or undue burden has to prove the same.(CRPD Committee, GC 6, para 26[g].) And such a justification has to be based on objective criteria.(Id at para 27.) Further, the CRPD Committee has held that an assessment of reasonable accommodation must be made in a thorough and objective manner, covering all the pertinent elements, before reaching a conclusion that the respective support and adaptation measures would constitute a disproportionate or undue burden for a State party.62. Ms Madhavi Divan, learned Additional Solicitor General laid emphasis on the competitive nature of the CSE and of the need to preserve the purity of the examination. The difficulty in accepting the argument lies in the sequitur. There can be no doubt about the fact that the CSE is competitive in itself. There can similarly be no doubt about the need to preserve the purity of the examination. But the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens – persons with disability who need a scribe – from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law. There are two further responses to this argument. First, Ms. Divan has not furnished any empirical data to substantiate the assertion that persons with disabilities are misusing the facility of scribes to obtain any undue advantage. As noted earlier, a justification to provide a reasonable accommodation must be based on objective criteria. The conjecture as to misuse does not meet this test.63. Further, we are of the considered view that undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day to day lives. One of them is that they do not perform as well as others. Like other stereotypes, this one is also totally flawed and contrary to reality. Such an ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the RPwD Act 2016. To think that persons with disabilities who do not have a benchmark disability but nonetheless request access to a scribe, as a class, have the objective of gaming the system is to misunderstand their aspiration, to stamp them with a badge of cheaters and to deprive them of their lawful entitlements. The system may be vulnerable to being gamed by able-bodied persons, however, it is the persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations by giving up their legal entitlements on the presumption that there64. When competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom. The most significant loser as a consequence of the UPSCs rigid approach in this case (of refusing to provide scribes to those not having benchmark disabilities) is the UPSC itself. For it is denying to the nation the opportunity to be served by highly competent people who claim nothing but access to equal opportunity and a barrier-free environment.65. When an able-bodied student engages in cheating, the normal consequence is their disqualification or other suitable punitive action. The same consequence can flow from a candidate using their disability to game the system. If some incidents come to light of able-bodied candidates hiding chits in their dress code and misusing them to cheat in an exam, the normal consequence is suitable punitive action against such students. It is not to switch to a different dress code that is so uncomfortable that many competent students find it hard to sit in it for the entire duration of the exam and perform to the best of their ability. In the same way, just because of the fault of some bad apples in the system, persons with disabilities whose disability necessitates access to a scribe cannot be disentitled from claiming the same.66. Second, the examining body is entitled to prescribe procedures that ensure against a misuse and to deal with any instances which may come to light. This is not a problem peculiar to India or that of an intractable nature.Suffice it to say that the possibility of misuse cannot be used to deprive equal access to persons with disability from seeking the facility of a scribe. Absent such a facility, persons such as the appellant who suffers from a chronic neurological condition would be deprived of a statutory right of equal opportunity in gaining an appointment to public services. To do so would negate both the constitutional right and its statutory recognition in the provisions of the RPwD Act, 2016.67. The shift in the way we view disability – as a social construct rather than an individual pathology – must also translate into a linguistic shift in the way we refer to persons with disabilities. The language of our discourse must evince a clear desire to make the disabled feel empowered and included, not alienated and situated on a different footing from their able-bodied counterparts - whether on a pedestal or in a cage.(Paraphrased from - CNN, Ginsburg: The pedestal you put women on is a cage, 12th February, 2018, available at https://www.youtube.com/watch/sJ9Got6C500)68. The Tribunal, in its judgment, couched the disability of the appellant in terms of suffering and disease. Specifically, in its order dated 30 May 2018, the Tribunal, at para 5, noted: The applicant is suffering with a disease called Writers Cramp. In its order dated 7 August 2018, at para 7, the Tribunal refers to those suffering with disabilities. Even if the usage is unintentional, we cannot ignore its enduring impact in shaping the way the society views the disabled and the way they view themselves. Viewing disability as an affliction that causes suffering, or that views it as a God-given fate (whether a blessing or a curse) is rooted in the medical model of disability. Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities.69. In its concluding observations on India, the CRPD Committee notes with concern references to normal life as opposed to the lives of persons with disabilities and derogatory terminology such as mentally ill and divyangjan, which as it notes, remains controversial(CRPD Committee, Concluding Observations on India, para 6[b].). It is our earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the CRPD Committee has generated, will find a resonance in the language we use to refer to them.70. In the hearing, one of us presciently noted that the imposition of the criterion of a benchmark disability to access a scribe – an arena in which it has no relevance as per the statutory framework – betrays a profound lack of awareness on the part of the authorities about the RPwD Act 2016. The OM of 29 August 2018, in its preambular portion recites as follows:The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act.71. As one commentator notes, if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.(Ibid.) Another notes that there exists no justification for this move. The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018.72. If the legal entitlements set forth in the RPwD Act 2016 are to not remain mere parchment, reflected in our inability to overcome barriers against substantively unequal treatment, the nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard, Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. Based on Article 8, the RPwD Act 2016 captures the need for the State to conduct and promote awareness campaigns and sensitization programmes in Section 39. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life. Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like. The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts.73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writers cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.74. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government.77. We find it apposite to mention here that consultation with persons with disabilities and their involvement in decision making about matters affecting their lives is necessary to bring about any meaningful change in the realization of their rights. Taking note of the emergence of movements of persons with disabilities and the philosophy of nothing about us without us, the CRPD Committee in its General Comment No. 7 has also underscored the importance of such participative decision making by involving persons with disabilities and organizations of the persons with disabilities.78. In India, as reflected by the policy disconnect in this case, there is often a lack of involvement of the disabled in such decision making processes, leading to their voice not being heard and their grievances remaining unaddressed. This has also been listed as an area of concern by the CRPD Committee in its concluding observations on India.(CRPD Committee, Concluding observations on India, para 10, 11.)79. When President George HW Bush signed into law the Americans with Disabilities Act, he noted that, by dint of the passage of the law, every man, woman, and child [and we would like to add practitioners of alternative sexuality here] with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.(ADA.Gov, Remarks of President George H. W. Bush at the Signing of the Americans with Disabilities Act, 26th July, 1990, available at https://www.ada.gov/ghw_bush_ada_remarks.html)80. In the three decades that have elapsed since then, a generation of Americans with disabilities has emerged, calling themselves the ADA Generation. These disabled people rightfully regard the ADAs guarantees as a birthright and, due to accessible infrastructure, a strict prohibition on disability discrimination and changed public attitudes, are able to participate in American life on equal terms with their able-bodied counterparts.81. Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realizing the rights of the disabled. Voices such as those of the appellant are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future. | 1 | 16,062 | 9,847 | ### Instruction:
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such as the appellant who suffers from a chronic neurological condition would be deprived of a statutory right of equal opportunity in gaining an appointment to public services. To do so would negate both the constitutional right and its statutory recognition in the provisions of the RPwD Act, 2016. J. The language of our discourse 67. The shift in the way we view disability – as a social construct rather than an individual pathology – must also translate into a linguistic shift in the way we refer to persons with disabilities. The language of our discourse must evince a clear desire to make the disabled feel empowered and included, not alienated and situated on a different footing from their able-bodied counterparts - whether on a pedestal or in a cage.(Paraphrased from - CNN, Ginsburg: The pedestal you put women on is a cage, 12th February, 2018, available at https://www.youtube.com/watch/sJ9Got6C500) 68. The Tribunal, in its judgment, couched the disability of the appellant in terms of suffering and disease. Specifically, in its order dated 30 May 2018, the Tribunal, at para 5, noted: The applicant is suffering with a disease called Writers Cramp. In its order dated 7 August 2018, at para 7, the Tribunal refers to those suffering with disabilities. Even if the usage is unintentional, we cannot ignore its enduring impact in shaping the way the society views the disabled and the way they view themselves. Viewing disability as an affliction that causes suffering, or that views it as a God-given fate (whether a blessing or a curse) is rooted in the medical model of disability. Our discourse must be couched in terms that reflect the recognition of a human rights model to viewing disability. Insensitive language offends the human dignity of persons with disabilities. 69. In its concluding observations on India, the CRPD Committee notes with concern references to normal life as opposed to the lives of persons with disabilities and derogatory terminology such as mentally ill and divyangjan, which as it notes, remains controversial(CRPD Committee, Concluding Observations on India, para 6[b].). It is our earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the CRPD Committee has generated, will find a resonance in the language we use to refer to them. K. Realizing the transformative potential of the Rights of Persons with Disabilities Act 2016: From principle to practice 70. In the hearing, one of us presciently noted that the imposition of the criterion of a benchmark disability to access a scribe – an arena in which it has no relevance as per the statutory framework – betrays a profound lack of awareness on the part of the authorities about the RPwD Act 2016. The OM of 29 August 2018, in its preambular portion recites as follows: The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act. 71. As one commentator notes, if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.(Ibid.) Another notes that there exists no justification for this move. The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018. 72. If the legal entitlements set forth in the RPwD Act 2016 are to not remain mere parchment, reflected in our inability to overcome barriers against substantively unequal treatment, the nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard, Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. Based on Article 8, the RPwD Act 2016 captures the need for the State to conduct and promote awareness campaigns and sensitization programmes in Section 39. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life. Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like. The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts. L. Case of the appellant 73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writers cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016. 74. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government. M. Formulation of new policy concerning access to scribes for persons with disabilities
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benchmark disability to access a scribe – an arena in which it has no relevance as per the statutory framework – betrays a profound lack of awareness on the part of the authorities about the RPwD Act 2016. The OM of 29 August 2018, in its preambular portion recites as follows:The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act.71. As one commentator notes, if the connection between reservation in government jobs for the disabled and guidelines for grant of scribes in all exams they may appear in appears strange, that is because it is.(Ibid.) Another notes that there exists no justification for this move. The facts of this case are a stark reminder of the need to generate greater legal consciousness about the entitlements of the disabled set forth in the RPwD Act 2016. We would also like to take judicial notice of the fact that several instances have come to light of competent authorities fixing criteria for the grant of scribes that are in brazen disregard of the RPwD Act 2016 and the OM dated 29 August 2018.72. If the legal entitlements set forth in the RPwD Act 2016 are to not remain mere parchment, reflected in our inability to overcome barriers against substantively unequal treatment, the nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard, Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. Based on Article 8, the RPwD Act 2016 captures the need for the State to conduct and promote awareness campaigns and sensitization programmes in Section 39. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life. Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like. The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts.73. Insofar as the case of the appellant is concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court is clear in opining that the appellant has a specified disability inasmuch as he has a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writers cramp has been found successively to be a condition which the appellant has, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.74. We, therefore, hold and declare that the appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government.77. We find it apposite to mention here that consultation with persons with disabilities and their involvement in decision making about matters affecting their lives is necessary to bring about any meaningful change in the realization of their rights. Taking note of the emergence of movements of persons with disabilities and the philosophy of nothing about us without us, the CRPD Committee in its General Comment No. 7 has also underscored the importance of such participative decision making by involving persons with disabilities and organizations of the persons with disabilities.78. In India, as reflected by the policy disconnect in this case, there is often a lack of involvement of the disabled in such decision making processes, leading to their voice not being heard and their grievances remaining unaddressed. This has also been listed as an area of concern by the CRPD Committee in its concluding observations on India.(CRPD Committee, Concluding observations on India, para 10, 11.)79. When President George HW Bush signed into law the Americans with Disabilities Act, he noted that, by dint of the passage of the law, every man, woman, and child [and we would like to add practitioners of alternative sexuality here] with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.(ADA.Gov, Remarks of President George H. W. Bush at the Signing of the Americans with Disabilities Act, 26th July, 1990, available at https://www.ada.gov/ghw_bush_ada_remarks.html)80. In the three decades that have elapsed since then, a generation of Americans with disabilities has emerged, calling themselves the ADA Generation. These disabled people rightfully regard the ADAs guarantees as a birthright and, due to accessible infrastructure, a strict prohibition on disability discrimination and changed public attitudes, are able to participate in American life on equal terms with their able-bodied counterparts.81. Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.The language of our discourse, as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realizing the rights of the disabled. Voices such as those of the appellant are a constant reminder of the chasm between the law and reality. But they also provide a platform for change and evolution towards a better future.
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Tej Parkash Vs. The State Of Haryana | as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of the dead-body being taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with the post-mortem report. In the post-mortem report, it has been stated that the injuries on the body of the deceased were ante-mortem in nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of the post-mortem report namely, that the death was caused due to fracture of hyoid bone and the said injury was ante-mortem in nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in his examination-in-chief had categorically stated that the fracture of the hyoid bone was ante-mortem in nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as the post-mortem report.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for cross- examination without his being examination-in-chief. Though, Dr. O.P. Poddar was not examined-in-chief, this procedure of tendering a witness for cross- examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness for cross-examination only would be wrong and ``the effect of their being tendered only for cross- examination amounts to the failure of the prosecution to examine them at the trial. In the present case, however, non-examination of Dr. O.P Poddar is not very material because the post-mortem report coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18. In support of his contention that serious prejudice was caused to the appellant by non-examination of Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42. The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. His non-examination cannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation. Non-examination of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whose non-examination could be said to have caused any prejudice to the appellant. | 0[ds]16. The effort of Mr. Ganesh obviously was to try to persuade this Court to reappraise the evidence and come to a different conclusion. We find that the trial Court as well as the High Court were conscious of the fact that this was a case of circumstantial evidence. Keeping in view the well established principles in mind the concurrent finding arrived at by both the courts below was that he appellant was guilty of murdering his wife. We have also carefully examined the record and we do not find that the concurrent finding calls forof the evidence. This is more so when we find that thereport coupled with the medical evidence reached only to one conclusion namely, that homicide and not suicide had resulted in the death of the appellants wife. It was contended that the evidence of Dr. Bhutani P.W. 9 did not support the prosecution inasmuch as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of thebeing taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with thereport. In thereport, it has been stated that the injuries on the body of the deceased werein nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of thereport namely, that the death was caused due to fracture of hyoid bone and the said injury wasin nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in hishad categorically stated that the fracture of the hyoid bone wasin nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as thereport.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for crossexamination without his beingThough, Dr. O.P. Poddar was notthis procedure of tendering a witness for crossexamination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness foronly would be wrong and ``the effect of their being tendered only for crossexamination amounts to the failure of the prosecution to examine them at the trial. In the present case, however,of Dr. O.P Poddar is not very material because thereport coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18.In support of his contention that serious prejudice was caused to the appellant byf Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42.The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. Hiscannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation.of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whosecould be said to have caused any prejudice to the appellant. | 0 | 4,959 | 1,213 | ### Instruction:
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as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of the dead-body being taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with the post-mortem report. In the post-mortem report, it has been stated that the injuries on the body of the deceased were ante-mortem in nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of the post-mortem report namely, that the death was caused due to fracture of hyoid bone and the said injury was ante-mortem in nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in his examination-in-chief had categorically stated that the fracture of the hyoid bone was ante-mortem in nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as the post-mortem report.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for cross- examination without his being examination-in-chief. Though, Dr. O.P. Poddar was not examined-in-chief, this procedure of tendering a witness for cross- examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness for cross-examination only would be wrong and ``the effect of their being tendered only for cross- examination amounts to the failure of the prosecution to examine them at the trial. In the present case, however, non-examination of Dr. O.P Poddar is not very material because the post-mortem report coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18. In support of his contention that serious prejudice was caused to the appellant by non-examination of Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42. The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. His non-examination cannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation. Non-examination of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whose non-examination could be said to have caused any prejudice to the appellant.
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with the medical evidence reached only to one conclusion namely, that homicide and not suicide had resulted in the death of the appellants wife. It was contended that the evidence of Dr. Bhutani P.W. 9 did not support the prosecution inasmuch as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of thebeing taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with thereport. In thereport, it has been stated that the injuries on the body of the deceased werein nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of thereport namely, that the death was caused due to fracture of hyoid bone and the said injury wasin nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in hishad categorically stated that the fracture of the hyoid bone wasin nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as thereport.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for crossexamination without his beingThough, Dr. O.P. Poddar was notthis procedure of tendering a witness for crossexamination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness foronly would be wrong and ``the effect of their being tendered only for crossexamination amounts to the failure of the prosecution to examine them at the trial. In the present case, however,of Dr. O.P Poddar is not very material because thereport coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18.In support of his contention that serious prejudice was caused to the appellant byf Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42.The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. Hiscannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation.of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whosecould be said to have caused any prejudice to the appellant.
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Hasimara Industries Limited Vs. Commissioner of Income Tax, W. B. and Another | Lord Radcliffe, in Commr. of Taxes v. Nchanga Consolidated Copper Mines Ltd. ((PC)) had observed that what was material to consider was the nature of the advantage in a commercial sense and it was only where the advantage was in the capital field that the expenditure would be disallowable. Lord Reid, in IRC v. Carron Co. ((1967) 45 TC 18, HL) had noted that expenditure had been incurred to remove antiquated restrictions which were preventing profits from being earned and, on that account, held the expenditure to be of a revenue character. In the case before it, this Court found, on a parity of reasoning, that the expenditure incurred by the assessee for the purpose of removing a restriction on the number of working hours for which it could operate looms, with a view to increasing its profits, was a revenue expenditure 8. Learned counsel for the Revenue drew our attention to the judgment of the Privy Council in CIT v. Motiram Nandram ((PC) upon which the High Court had relied 9. It must be said at once that the case of Motiram Nandram ((PC)) bears considerable similarity to the case that is before us. The assessee therein carried on business in cloth, yam and moneylending. In 1930 it deposited with an oil company Rs. 50, 000 in consideration of an agreement. Thereunder, the assessee was appointed the organising agent of the oil company for a period of five years for a stated area. It was to recommend selling agents. Sales were to be conducted entirely by the oil company and the selling agents, but the assessee was to receive a certain commission on all goods sold by the selling agents within the slated area and also on an sales of oil effected in the stated area by the oil company. The deposit was to remain at the disposal of the oil company for the purpose of the oil companys business and was to carry interest at the rate of 7 per cent per annum until it was repaid out of deposits made by the selling agents. After the assessee had recovered a part of its deposit, the oil company went into liquidation and, though the assessee obtained a decree for Rs. 39, 500 against the oil company, it was unable to realise the decretal amount. The assessee claimed in the year 1932-33 that the aforesaid amount should be deducted from its other income as a business loss. The Privy Council did not accept the assessees case. It said"When the deposit is considered in relation to the organising agency, the special terms of the agreement of 17-12-1930, are important since various suggestions have been made as to the true character of the deposit. One suggestion is that the deposit should be looked upon as the purchase price of goods paid to the company in advance and thus a mere trading expense; but this cannot be accepted. It would be a highly inaccurate statement of the effect of the agreement. The Rs. 50, 000 was doubtless laid out with a view to earning profits in the business of organising agents in addition to the interest of 7 per cent, but it was not so laid out with reference to any particular transaction carried out in the course of such business. It was in one aspect a loan made to the company but it was not a loan made in the course of carrying on the business of organising agents or in the course of the business of a moneylender. It was not a recurring expenditure. On the other hand, it was contemplated that in whole or in part the deposit should be returned to the assessees by the receipt of deposit from selling agents; so that if the Rs. 50, 000 does fall to be regarded as invested in a business of organising agents, it was invested with a prospect that it might be a temporary investment and not a permanent one - in other words that the capital might later be withdrawn from the business. The question in such a case as the present must be what is the object of the expenditure ? and it must be answered from the standpoint of the assessees at the time they made it - that is, when they were embarking upon the business of organising agents for the company. The deposit was clearly exacted by the company as a condition of the assessees being given an agency which they hoped to manage profitably. Their Lordships think that the purpose of being permitted to engage in such a business must be considered to be a purpose of securing an enduring benefit of a capital nature, and that the deposit cannot, upon a true view of the terms of the agreement and the circumstances of the case, be regarded as an expenditure made in the course of carrying on an existing agency, or any other business." 10. We are in no doubt whatever that the High Court was right in concluding that the amount of Rs. 20 lakhs had been deposited by the assessee with the licensor company for the purpose of securing the licence under which the assessee had acquired the right to work the licensors cotton mills. This is clear from the fact that the deposit was made pursuant to a clause in the leave and licence agreement. Had a deposit as required by that clause not been made, the assessee would not have secured the licence of the cotton mill. At that time the assessee was doing no business in cotton. The deposit was, clearly, made for the purpose of acquiring a profit-making asset to carry on business in cotton. It cannot, therefore, be held that the deposit was made on the revenue account or that the loss thereof must be treated as a business loss. The loss thereof was a loss suffered on the capital account and could not be deducted on the basis that it was a business loss | 1[ds]10. We are in no doubt whatever that the High Court was right in concluding that the amount of Rs. 20 lakhs had been deposited by the assessee with the licensor company for the purpose of securing the licence under which the assessee had acquired the right to work the licensors cotton mills. This is clear from the fact that the deposit was made pursuant to a clause in the leave and licence agreement. Had a deposit as required by that clause not been made, the assessee would not have secured the licence of the cotton mill. At that time the assessee was doing no business in cotton. The deposit was, clearly, made for the purpose of acquiring ag asset to carry on business in cotton. It cannot, therefore, be held that the deposit was made on the revenue account or that the loss thereof must be treated as a business loss. The loss thereof was a loss suffered on the capital account and could not be deducted on the basis that it was a business loss6. On behalf of the assessee it was submitted that the assessee did not commence the cotton business as a new venture for the first time in 1963 when the said leave and licence agreement was entered into, for it was an admitted fact that the assessee had, as far back as 1960, and with the approval of the High Court at Calcutta, amended its memorandum of association for the purposes of carrying on the cotton business. It had entered into a partnership with one Bajoria and that partnership had run the said cotton mills on lease for a period of nine months. The High Court was, therefore, in error in taking the view that the cotton business had commenced with the taking on leave and licence of the said cotton mills. In counsels submission, the deposit of Rs. 20 lakhs made as aforestated had been lost to the assessee by reason of the winding up of the licensor company and it had rightly claimed that loss as a business loss, for its business in cotton had suffered that loss | 1 | 2,727 | 387 | ### 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:
Lord Radcliffe, in Commr. of Taxes v. Nchanga Consolidated Copper Mines Ltd. ((PC)) had observed that what was material to consider was the nature of the advantage in a commercial sense and it was only where the advantage was in the capital field that the expenditure would be disallowable. Lord Reid, in IRC v. Carron Co. ((1967) 45 TC 18, HL) had noted that expenditure had been incurred to remove antiquated restrictions which were preventing profits from being earned and, on that account, held the expenditure to be of a revenue character. In the case before it, this Court found, on a parity of reasoning, that the expenditure incurred by the assessee for the purpose of removing a restriction on the number of working hours for which it could operate looms, with a view to increasing its profits, was a revenue expenditure 8. Learned counsel for the Revenue drew our attention to the judgment of the Privy Council in CIT v. Motiram Nandram ((PC) upon which the High Court had relied 9. It must be said at once that the case of Motiram Nandram ((PC)) bears considerable similarity to the case that is before us. The assessee therein carried on business in cloth, yam and moneylending. In 1930 it deposited with an oil company Rs. 50, 000 in consideration of an agreement. Thereunder, the assessee was appointed the organising agent of the oil company for a period of five years for a stated area. It was to recommend selling agents. Sales were to be conducted entirely by the oil company and the selling agents, but the assessee was to receive a certain commission on all goods sold by the selling agents within the slated area and also on an sales of oil effected in the stated area by the oil company. The deposit was to remain at the disposal of the oil company for the purpose of the oil companys business and was to carry interest at the rate of 7 per cent per annum until it was repaid out of deposits made by the selling agents. After the assessee had recovered a part of its deposit, the oil company went into liquidation and, though the assessee obtained a decree for Rs. 39, 500 against the oil company, it was unable to realise the decretal amount. The assessee claimed in the year 1932-33 that the aforesaid amount should be deducted from its other income as a business loss. The Privy Council did not accept the assessees case. It said"When the deposit is considered in relation to the organising agency, the special terms of the agreement of 17-12-1930, are important since various suggestions have been made as to the true character of the deposit. One suggestion is that the deposit should be looked upon as the purchase price of goods paid to the company in advance and thus a mere trading expense; but this cannot be accepted. It would be a highly inaccurate statement of the effect of the agreement. The Rs. 50, 000 was doubtless laid out with a view to earning profits in the business of organising agents in addition to the interest of 7 per cent, but it was not so laid out with reference to any particular transaction carried out in the course of such business. It was in one aspect a loan made to the company but it was not a loan made in the course of carrying on the business of organising agents or in the course of the business of a moneylender. It was not a recurring expenditure. On the other hand, it was contemplated that in whole or in part the deposit should be returned to the assessees by the receipt of deposit from selling agents; so that if the Rs. 50, 000 does fall to be regarded as invested in a business of organising agents, it was invested with a prospect that it might be a temporary investment and not a permanent one - in other words that the capital might later be withdrawn from the business. The question in such a case as the present must be what is the object of the expenditure ? and it must be answered from the standpoint of the assessees at the time they made it - that is, when they were embarking upon the business of organising agents for the company. The deposit was clearly exacted by the company as a condition of the assessees being given an agency which they hoped to manage profitably. Their Lordships think that the purpose of being permitted to engage in such a business must be considered to be a purpose of securing an enduring benefit of a capital nature, and that the deposit cannot, upon a true view of the terms of the agreement and the circumstances of the case, be regarded as an expenditure made in the course of carrying on an existing agency, or any other business." 10. We are in no doubt whatever that the High Court was right in concluding that the amount of Rs. 20 lakhs had been deposited by the assessee with the licensor company for the purpose of securing the licence under which the assessee had acquired the right to work the licensors cotton mills. This is clear from the fact that the deposit was made pursuant to a clause in the leave and licence agreement. Had a deposit as required by that clause not been made, the assessee would not have secured the licence of the cotton mill. At that time the assessee was doing no business in cotton. The deposit was, clearly, made for the purpose of acquiring a profit-making asset to carry on business in cotton. It cannot, therefore, be held that the deposit was made on the revenue account or that the loss thereof must be treated as a business loss. The loss thereof was a loss suffered on the capital account and could not be deducted on the basis that it was a business loss
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1
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10. We are in no doubt whatever that the High Court was right in concluding that the amount of Rs. 20 lakhs had been deposited by the assessee with the licensor company for the purpose of securing the licence under which the assessee had acquired the right to work the licensors cotton mills. This is clear from the fact that the deposit was made pursuant to a clause in the leave and licence agreement. Had a deposit as required by that clause not been made, the assessee would not have secured the licence of the cotton mill. At that time the assessee was doing no business in cotton. The deposit was, clearly, made for the purpose of acquiring ag asset to carry on business in cotton. It cannot, therefore, be held that the deposit was made on the revenue account or that the loss thereof must be treated as a business loss. The loss thereof was a loss suffered on the capital account and could not be deducted on the basis that it was a business loss6. On behalf of the assessee it was submitted that the assessee did not commence the cotton business as a new venture for the first time in 1963 when the said leave and licence agreement was entered into, for it was an admitted fact that the assessee had, as far back as 1960, and with the approval of the High Court at Calcutta, amended its memorandum of association for the purposes of carrying on the cotton business. It had entered into a partnership with one Bajoria and that partnership had run the said cotton mills on lease for a period of nine months. The High Court was, therefore, in error in taking the view that the cotton business had commenced with the taking on leave and licence of the said cotton mills. In counsels submission, the deposit of Rs. 20 lakhs made as aforestated had been lost to the assessee by reason of the winding up of the licensor company and it had rightly claimed that loss as a business loss, for its business in cotton had suffered that loss
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Raja Yuvraj Dutt Singh Vs. The Deputy Commissioner, Kheri Ors | the assessing authority recover any sum imposed by way of penalty under the provisions of Sections 17, 31, 37, or, where any assessee is in default the amount assessed as agricultural income-tax, as if it were an arrear of land revenue.(2) No proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the date on which the last instalment fixed under Section 30 falls due:Provided..............."It was common ground before the High Court and has not been disputed before us that the date of last instalment for the years 1360 F. to 1362 F. was June 28, 1960. The date of last instalment for the year 1363 F. was September 19, 1958. The order of attachment having been made on March 10, 1962 was clearly beyond one year from June 28, 1960 and September 19, 1958. The question which arose was whether the recovery proceedings were commenced before March 10, 1962. According to the assessee the recovery proceedings commenced only when the attachment was effected and not earlier and that they could be said to commence only when some actual process was issued under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950, Act I of 1951.4. Now as regards the years 1360 F. and 1361 F. the evidence which was admitted by the Division Bench showed that the Deputy Commissioner, who was the assessing authority, had made orders directing the Tahsildar to realise various sums as arrears of land revenue. Thus, according to the High Court, the proceedings for recovery commenced with the making of these orders, (Annexures A-I to A-5). It was pointed out that these orders were made on various dates ranging between October 9, 1960 to December 2, 1960. These dates were within one year from June 28, 1960 which was the last date of instalment for the years 1360 F and 1361F.5. The question which falls for determination is whether proceedings can be said to commence for recovery when the assessing authority makes a motion within Section 32 (1) to the Collector for recovery of the agricultural income tax and penalty as an arrear of land revenue. The Allahabad High Court has consistently held that proceedings for recovery of tax under the Act should be deemed to commence from the date of the request made by the assessing authority under the Act to the Collector to take steps for realization of the arrears of tax and other dues;(see Lal Bhan Pratap Narain Bahadur Pal v. State of Uttar Pradesh, 1962 All LJ 358). This view is based on various decisions under the Indian Income-tax Act 1922. Section 46 (7) of that Act provided that no proceedings for the recovery of any sum payable under that Act could be commenced after the expiration of one year from the last day of the financial year in which the demand was made under that Act. Under Section 46 (2) the Income-tax Officer was empowered to forward to the Collector a certificate specifying the amount of arrears due from an assessee and the Collector on receipt of such certificate had to proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. This provision together with Section 46 (7) came up for consideration in a number of cases before the High Courts and there appears to be unanimity of opinion that when the certificate is forwarded by the Income-tax Officer to the Collector for recovery of the dues the recovery proceedings commence from that point of time. Some of these have been referred to in Kishorilal v. Tirloki Nath, 1962 All LJ 360 and it is pointless to refer to them again.6. In our judgment there is hardly much difference between the provisions of Section 32 of the Act and the corresponding provisions of Section 46 of the Income-tax Act, 1922. Both these statues relate to taxation of income and the provisions in question are in pari materia although the words employed may not be exactly the same.The proceedings for recovery, therefore, in the present case, were rightly held to have commenced with the making of the orders contained in annexures A-1 to A-5.7. As regards the assessment for the year 1362F it has been pointed out on behalf of the assessee that the original orders passed for taking proceedings for realization of tax were missing from the record. The High Court, however, relied on the entries of the registers of demand and collection and was satisfied that "some order for realization of tax for 1362F was received by the Tahsildar of Lakhimpur in July or August 1960". That date being within one year from June 28, 1960 the recovery proceedings were held to be within time. It appears that the departmental authorities did not produce satisfactory evidence relating to the making of orders for realization of the tax in respect of the year 1362F inasmuch as the original orders were not produced. The learned Judges of the High court, as stated before, saw the register and after examination of the entries therein were satisfied that an order had been made for realization of tax within one year from June 28, 1960. We would be most reluctant to interfere with that finding. So far as the year 1363F was concerned the date of last instalment was September 19, 1958. According to annexure A-5 the Sub-Divisional Officer, Lakhimpur, made an order on October 1, 1959 with regard to the demand for that year. The High Court found that the Deputy Commissioner had made an endorsement on October 5, 1959. As the order was made on October 1, 1959 it was beyond one year from September 19, 1958. In the appeal filed by the departmental authorities it has not been shown in what manner the High Court was in error in holding that the proceedings for recovery of tax and penalty for the year 1363F were barred by time.8. | 0[ds]As regards the assessment for the year 1362F it has been pointed out on behalf of the assessee that the original orders passed for taking proceedings for realization of tax were missing from the record. The High Court, however, relied on the entries of the registers of demand and collection and was satisfied that "some order for realization of tax for 1362F was received by the Tahsildar of Lakhimpur in July or August 1960". That date being within one year from June 28, 1960 the recovery proceedings were held to be within time. It appears that the departmental authorities did not produce satisfactory evidence relating to the making of orders for realization of the tax in respect of the year 1362F inasmuch as the original orders were not produced. The learned Judges of the High court, as stated before, saw the register and after examination of the entries therein were satisfied that an order had been made for realization of tax within one year from June 28, 1960. We would be most reluctant to interfere with that finding. So far as the year 1363F was concerned the date of last instalment was September 19, 1958. According to annexure A-5 the Sub-Divisional Officer, Lakhimpur, made an order on October 1, 1959 with regard to the demand for that year. The High Court found that the Deputy Commissioner had made an endorsement on October 5, 1959. As the order was made on October 1, 1959 it was beyond one year from September 19, 1958. In the appeal filed by the departmental authorities it has not been shown in what manner the High Court was in error in holding that the proceedings for recovery of tax and penalty for the year 1363F were barred by time. | 0 | 1,575 | 323 | ### 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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the assessing authority recover any sum imposed by way of penalty under the provisions of Sections 17, 31, 37, or, where any assessee is in default the amount assessed as agricultural income-tax, as if it were an arrear of land revenue.(2) No proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the date on which the last instalment fixed under Section 30 falls due:Provided..............."It was common ground before the High Court and has not been disputed before us that the date of last instalment for the years 1360 F. to 1362 F. was June 28, 1960. The date of last instalment for the year 1363 F. was September 19, 1958. The order of attachment having been made on March 10, 1962 was clearly beyond one year from June 28, 1960 and September 19, 1958. The question which arose was whether the recovery proceedings were commenced before March 10, 1962. According to the assessee the recovery proceedings commenced only when the attachment was effected and not earlier and that they could be said to commence only when some actual process was issued under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950, Act I of 1951.4. Now as regards the years 1360 F. and 1361 F. the evidence which was admitted by the Division Bench showed that the Deputy Commissioner, who was the assessing authority, had made orders directing the Tahsildar to realise various sums as arrears of land revenue. Thus, according to the High Court, the proceedings for recovery commenced with the making of these orders, (Annexures A-I to A-5). It was pointed out that these orders were made on various dates ranging between October 9, 1960 to December 2, 1960. These dates were within one year from June 28, 1960 which was the last date of instalment for the years 1360 F and 1361F.5. The question which falls for determination is whether proceedings can be said to commence for recovery when the assessing authority makes a motion within Section 32 (1) to the Collector for recovery of the agricultural income tax and penalty as an arrear of land revenue. The Allahabad High Court has consistently held that proceedings for recovery of tax under the Act should be deemed to commence from the date of the request made by the assessing authority under the Act to the Collector to take steps for realization of the arrears of tax and other dues;(see Lal Bhan Pratap Narain Bahadur Pal v. State of Uttar Pradesh, 1962 All LJ 358). This view is based on various decisions under the Indian Income-tax Act 1922. Section 46 (7) of that Act provided that no proceedings for the recovery of any sum payable under that Act could be commenced after the expiration of one year from the last day of the financial year in which the demand was made under that Act. Under Section 46 (2) the Income-tax Officer was empowered to forward to the Collector a certificate specifying the amount of arrears due from an assessee and the Collector on receipt of such certificate had to proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. This provision together with Section 46 (7) came up for consideration in a number of cases before the High Courts and there appears to be unanimity of opinion that when the certificate is forwarded by the Income-tax Officer to the Collector for recovery of the dues the recovery proceedings commence from that point of time. Some of these have been referred to in Kishorilal v. Tirloki Nath, 1962 All LJ 360 and it is pointless to refer to them again.6. In our judgment there is hardly much difference between the provisions of Section 32 of the Act and the corresponding provisions of Section 46 of the Income-tax Act, 1922. Both these statues relate to taxation of income and the provisions in question are in pari materia although the words employed may not be exactly the same.The proceedings for recovery, therefore, in the present case, were rightly held to have commenced with the making of the orders contained in annexures A-1 to A-5.7. As regards the assessment for the year 1362F it has been pointed out on behalf of the assessee that the original orders passed for taking proceedings for realization of tax were missing from the record. The High Court, however, relied on the entries of the registers of demand and collection and was satisfied that "some order for realization of tax for 1362F was received by the Tahsildar of Lakhimpur in July or August 1960". That date being within one year from June 28, 1960 the recovery proceedings were held to be within time. It appears that the departmental authorities did not produce satisfactory evidence relating to the making of orders for realization of the tax in respect of the year 1362F inasmuch as the original orders were not produced. The learned Judges of the High court, as stated before, saw the register and after examination of the entries therein were satisfied that an order had been made for realization of tax within one year from June 28, 1960. We would be most reluctant to interfere with that finding. So far as the year 1363F was concerned the date of last instalment was September 19, 1958. According to annexure A-5 the Sub-Divisional Officer, Lakhimpur, made an order on October 1, 1959 with regard to the demand for that year. The High Court found that the Deputy Commissioner had made an endorsement on October 5, 1959. As the order was made on October 1, 1959 it was beyond one year from September 19, 1958. In the appeal filed by the departmental authorities it has not been shown in what manner the High Court was in error in holding that the proceedings for recovery of tax and penalty for the year 1363F were barred by time.8.
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### Explanation:
As regards the assessment for the year 1362F it has been pointed out on behalf of the assessee that the original orders passed for taking proceedings for realization of tax were missing from the record. The High Court, however, relied on the entries of the registers of demand and collection and was satisfied that "some order for realization of tax for 1362F was received by the Tahsildar of Lakhimpur in July or August 1960". That date being within one year from June 28, 1960 the recovery proceedings were held to be within time. It appears that the departmental authorities did not produce satisfactory evidence relating to the making of orders for realization of the tax in respect of the year 1362F inasmuch as the original orders were not produced. The learned Judges of the High court, as stated before, saw the register and after examination of the entries therein were satisfied that an order had been made for realization of tax within one year from June 28, 1960. We would be most reluctant to interfere with that finding. So far as the year 1363F was concerned the date of last instalment was September 19, 1958. According to annexure A-5 the Sub-Divisional Officer, Lakhimpur, made an order on October 1, 1959 with regard to the demand for that year. The High Court found that the Deputy Commissioner had made an endorsement on October 5, 1959. As the order was made on October 1, 1959 it was beyond one year from September 19, 1958. In the appeal filed by the departmental authorities it has not been shown in what manner the High Court was in error in holding that the proceedings for recovery of tax and penalty for the year 1363F were barred by time.
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Godrej and Boyce Manufacturers Company Limited Vs. Commissioner of Income Tax, Range 10 | incurred in the earning of that income would have to be disallowed. That is exactly a matter which the Assessing Officer has to determine. Whether or not any expenditure was incurred by the assessee in relation to the earning of non-taxable income falls within the domain of the Assessing Officer. The basis on which the Tribunal had come to its decision for Assessment Years 1998-99, 1999-00 and 2001-02 would not conclude that question.72. The precedents on which reliance has been placed by the assessee would have now to be analyzed. The Supreme Court in its judgment in Radhasoami Satsang (supra) held that res judicata does not apply to income tax proceedings since each assessment year is a unit. However, where a fundamental aspect permeating through different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging that order, it would not be appropriate to allow the position to be changed in a subsequent year, in the absence of any material change justifying the Revenue to take a different view of the matter. Moreover, in the concluding part of the judgment the Supreme Court has held that this decision is confined to the facts of the case and may not be treated as an authority on aspects which have been decided for general application at page 329. The decision of the Supreme Court in Munjal Sales Corporation (Supra) turned purely on the facts of the case. The Supreme Court noted that the opening balance as on 1 April 1994 was Rs.1.91 Crores whereas the loan given to a sister concern was a small amount of Rs.5 lacs. The profits earned by the assessee during the relevant year were held to be sufficient to cover the loan of Rs.5 lacs. In the decision of the Division Bench of this Court in Reliance Utilities (supra) the Division Bench has held that if there be interest free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest free funds available. The decision of the Division Bench turned on a finding of fact by the Tribunal that there were sufficient interest free funds available in that case. The judgment in Reliance Utilities shows that there were interest free owned funds available and not merely reserves. In East India Pharmaceutical Works Ltd. v. Commissioner of Income Tax (1997) 224 ITR 627 ) the Supreme Court in the facts of the case refused to draw any such presumption. In the case of the assessee, the learned Additional Solicitor General has submitted that the reference is made only to reserves and there is no mention of interest free funds. It has been urged that reserves are shown on the liabilities side of the balance-sheet and are represented by a variety of assets on the assets side. These assets could be fixed or non liquid assets and hence not investible. The real enquiry is whether there are interest free funds available on the assets side and in the absence of sufficient proof of available interest free funds, no such presumption can be drawn. Moreover, it has been urged that after the introduction of Section 14A(1), no such presumption can in any event be drawn, since Parliament expressly requires apportionment. We recapitulate our conclusions on this point thus:a) The ITAT had recorded a finding in the earlier assessments that the investments in shares and mutual funds have been made out of own funds and not out of borrowed funds and that there is no nexus between the investments and the borrowings. However, in none of those decisions was the disallowability of expenses incurred in relation to exempt income earned out of investments made out of own funds considered. Moreover, under Section 14A, expenditure incurred in relation to exempt income can be disallowed only if the assessing officer is not satisfied with the correctness of the expenditure claimed by the assessee. In the present case, no such exercise has been carried out and, therefore, the Tribunal was justified in remanding the matter.b) Section 14A was introduced by the Finance Act 2001 with retrospective effect from 1 April 1962. However, in view of the proviso to that Section, the disallowance thereunder could be effectively made from assessment year 2001-2002 onwards. The fact that the Tribunal failed to consider the applicability of Section 14A in its proper perspective, for assessment year 2001-2002 would not bar the Tribunal from considering disallowance under Section 14A in assessment year 2002-2003.c) The decisions reported in Sridev Enterprises (supra), Munjal Sales Corporation (supra) and Radhasoami Satsang (supra) holding that there must be consistency and definiteness in the approach of the revenue would not apply to the facts of the present case, because of the material change introduced by Section 14A by way of statutory disallowance in certain cases. Therefore, the decisions of the Tribunal in the earlier years would have no relevance in considering disallowance in assessment year 2002-2003 in the light of Section 14A of the Act.73. For the reasons which we have indicated, we have come to the conclusion that under Section 14A(1) it is for the Assessing Officer to determine as to whether the assessee had incurred any expenditure in relation to the earning of income which does not form part of the total income under the Act and if so to quantify the extent of the disallowance. The Assessing Officer would have to arrive at his determination after furnishing an opportunity to the assessee to produce its accounts and to place on the record all relevant material in support of the circumstances which are considered to be relevant and germane. For this purpose and in light of our observations made earlier in this section of the judgment, we deem it appropriate and proper to remand the proceedings back to the Assessing Officer for a fresh determination.Conclusion : | 1[ds]31. The submission cannot be accepted. The expression income which does not form part of the total income under the Act must receive its plain and grammatical construction. Such income is income which is not includible in computing the total income of the assessee under the provisions of the Act for a previous year. Now it is trite law that under the Act, it is income that is taxed but it is not taxed in vacuo. It is taxed in the hands of a person.12 Section 2(45) defines the expression total income to mean the total amount of income referred to in Section 5, computed in the manner laid down in the Act. Section 4 charges the total income of the previous year of every person to income tax. Section 5 makes a reference to the scope of the total income of any previous year of a person who is the recipient. This is defined to include all income, from whatsoever sources derived, which is received or deemed to be received or which accrues or is deemed to have accrued in India or which accrues or arises outside India during the previous year. Section 10 defines those categories of income which shall not be included in computing the total income of the previous year of any person. Income tax is a tax on income in the hands of the assessee. Hence, when Section 14A disallows expenditure incurred by the assessee in relation to income which does not form part of the total income, it would include categories CIT vs. Indian Bank Limited, (AIR 1965 SC 1473 at paragraph19 page 1476) of income such as dividend from shares and income from mutual fund which under Section 10 are not to be included in the total income. Since dividend income and income from mutual funds are not included in the total income of the assessee, no deduction of expenditure is permissible under Section 14A(1).(5) of Sectionstipulates that no deduction under any other provisions of the Act shall be allowed to the Company or to a shareholder in respect of the amount which has been charged to tax under(1) or the tax thereon.32. The tax which is paid by the Company on profits declared, distributed or paid by way of dividend is not a tax which is paid on behalf of the shareholder. The company is liable to pay income tax in respect of its total income. In addition to the income tax chargeable in respect of its total income, a domestic Company is charged with the payment of additional income tax, called a tax on distributed profits on any amount declared, distributed or paid by the Company by way of dividend. The charge under(1) of Section 115O is on the profits of the Company; more specifically on that part of the profits which is declared, distributed or paid by way of dividend. The charge under(1) of Section 115O isnot on income by way of dividend in the hands of the shareholder.The additionalpayable on profits of a domestic company under Section115O is not a taxe circular notes that according to the existing provisions of the Act, corporate dividends were taxed in the hands of shareholders under the head of income from other sources. Companies while paying dividend deducted tax at source at the rate in force and issued certificates of tax deduction to their shareholders. The shareholders, in turn, showed dividend income in their returns of income and claimed credit for tax deducted on the basis of these certificates. The existing method was found to involve a lot of paper work and there were demands that tax on dividend should be abolished as it would tantamount to double taxation, once in the hands of the Company and again in the hands of the shareholders. The Circular states that the Finance Act of 1997, therefore, introduced a new system of collecting tax on profits distributed by the Company by way of dividend, which was to be in addition to the income tax chargeable in respect of the total income of the Company.39. The circular issued by the CBDT as a matter of fact clearly establishes that prior to the introduction of Sectionof the Finance Act of 1997, corporate dividends were taxed in the hands of shareholders as income from other sources. This provision was abolished by the introduction of Sectionon (1) of Sectionan additional income tax was imposed on profits distributed by a Company by way of dividend and a new clause, clause 33 was inserted in Section 10 to exempt dividend income in the hands of the shareholder.40. We have also been fortified in the conclusion which we have drawn, by the judgment of the Supreme Court in Walfort (supra). The Supreme Court has in the following observation expressly held that since dividend income does not form part of the total income, the expenditure that is incurred in the earning of such income cannot be allowed even though it is of a nature specified in Sections 15 to 59:If an income like dividend income is not a part of the total income, the expenditure/deduction though of the nature specified in Sections 15 to 59 but related to the income not forming part of the total income could not be allowed against other income includible in the total income for the purpose of chargeability to tax.Having observed thus, the Supreme Court held that the theory apportioning expenditure between taxable andincome has now, in principle, been widened under Section 14A. Hence, for the reasons that we have indicated earlier, we hold that income from dividend on shares is, in the hands of the recipient shareholder, income which does not form part of the total income. Hence, Section 14A would apply and the expenditure incurred in earning such income would have to be disallowed. Income from mutual fund stands on the same footing.We do not find any warrant for an artificial reading down of the provisions of Section 14A in the manner that is sought to be done. Section 14A plainly stipulates that no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. Dividend income does not form part of the total income under the Act by virtue of the provisions of Section 10(33). Consequently, it is impossible to accede to the submission that Section 14A should be confined only to those categories of income, such as agricultural income, where the income is exempt in the hands of any person. The judgment of the Privy Council in C.I.T. vs. Rameshwar Singh, (1935) 3 ITR 305) is of no relevance to the issue involved in this case. While construing the provisions of the Income Tax Act, 1922, the Privy Council observed that agricultural income is excluded altogether from the scope of the Act whatsoever or by whomsoever it may be received. This would have no bearing on the construction to be placed on the provisions of Section 14A.In order to conclude the discussion on this aspect of the case, we would proceed to recapitulate our conclusions.(i) Section 14A was enacted by Parliament in order to overcome the judgments of the Supreme Court in the case of Indian Bank, Maharashtra Sugar and Rajasthan Warehousing Corporation in which it was held that in the case of a composite and indivisible business, which results in earning of taxable andincome, it is impermissible to apportion the expenditure between that which was laid out for the earning of taxable as opposed toincome;(ii) The effect of Section 14A is to widen the theory of the apportionment of expenditure. Prior to the enactment of Section 14A where the business of an assessee was not a composite and indivisible business and the assessee earned both taxable andincome, the expenditure incurred on earningincome could not be allowed as a deduction as against the taxable income. As a result of the enactment of Section 14A, no expenditure can be allowed as a deduction in relation to income which does not form part of the total income under the Act. Hence, even in the case of a composite and indivisible business, which results in the earning of taxable andincome, it would be necessary to apportion the expenditure incurred by the assessee. Only that part of the expenditure which is incurred in relation to income which forms part of the total income can be allowed. The expenditure incurred in relation to income which does not form part of the total income has to be disallowed;(iii) From this it would follow that Section 14A has implicit within it a notion of apportionment. The principle of apportionment which prior to the amendment of Section14A would not have applied to expenditure incurred in a composite and indivisible business which results in taxable andincome, must after the enactment of the provisions apply even to such a situation;(iv) The expression expenditure incurred in Section 14A refers to expenditure on rent, taxes, salaries, interest etc. in respect of which allowances are provided for;(v)(2) and (3) of Section 14A are intended to enforce and implement the provisions of(1). The object of(2) is to provide a uniformity of method where the Assessing Officer is, on the basis of the accounts of the assessee, not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under the Act;(vi) Even in the absence of(2) of Section 14A, the Assessing Officer would have to apportion the expenditure and to disallow the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. The Assessing Officer would have to follow a reasonable method of apportioning the expenditure consistent with what the circumstances of the case would warrant and having regard to all the relevant facts and circumstances;(vii) Consequent upon the insertion of(2), the disputes which had arisen between tax payers and the Revenue on the method of determining the expenditure to be disallowed, have been given a quietus by adopting a uniform method of determination;(viii)(2) of Section 14A does not enable the Assessing Officer to apply the method prescribed by Rule 8D without determining in the first instance the correctness of the claim of the assessee, having regard to the accounts of the assessee.(2) of Section 14A mandates that it is only when having regard to the accounts of the assessee, the Assessing Officer is not satisfied with the correctness of the claim of the assessee in respect of expenditure incurred in relation to income which does not form part of the total income under the Act, that he can proceed to make a determination under the Rules;(ix) The satisfaction envisaged by(2) of Section 14A is an objective satisfaction that has to be arrived at by the Assessing Officer having regard to the accounts of the assessee. The safeguard introduced by(2) of Section 14A for a fair and reasonable exercise of power by the Assessing Officer, conditioned as it is by the requirement of an objective satisfaction, must, therefore, be scrupulously observed. An objective satisfaction contemplates a notice to the assessee, an opportunity to the assessee to place on record all the relevant facts including his accounts and recording of reasons by the Assessing Officer in the event that he comes to the conclusion that he is not satisfied with the claim of the assessee;(x) The effect of Sectionis that in addition to the income tax chargeable on the total income of a domestic Company, additional income tax is charged on profits declared, distributed or paid. This tax which is referred to as a tax on distributed profits is what it means, namely, a tax on the profits of the Company. This is not a tax on dividend income. Under Sectionthe charge is on a component of the profits of the Company; that component representing profits declared, distributed or paid. The tax under Section115O is not a taxwhich is paid by the Company on behalf of the shareholder, nor does the Company act as an agent of the shareholder in paying the tax. This legal position is fortified by the circumstance that the shareholder is not entitled to any deduction in respect of the amount which has been charged to tax under(1) or the tax thereon;(xi) Additionalliability on the profits declared, distributed or paid as dividend by a domestic company, cannot be considered as tax on dividend, because,(a) Provisions contained in Chapter XIID are special provisions relating to tax on the distributed profits of domestic companies. Even Sectionin Chapter XIID clearly states that the additionalliability thereunder is on the amount of profits declared, distributed or paid by a domestic company as dividend. Thus, the additional income tax under Sectionis a tax on profits and not a tax on dividend.(b) Distribution of profits as dividend being appropriation of profits, the company distributing profits as dividend is liable to pay tax on the total income inclusive of the amount of profits distributed as dividend. By inserting Section 115O, the legislature has imposed additionalon the amount of profits distributed as dividend. Thus, tax as well as additionalare taxes levied on the profits of a domestic company. From the fact that the additionalis levied only on profits declared, distributed, or paid as dividend, it cannot be said that the additionalis not a tax on the profits of the domestic company but a tax on dividend.(c)) Where profits of a Company are distributed as dividend, those profits are taxed in the hands of the Company and dividends are taxed in the hands of the shareholders because the character of the income in the hands of a Company and in the hands of a shareholder is totally different. Profits in the hands of a company would be business income, whereas, the said amounts when distributed as dividend, would constitute dividend income in the hands of the shareholders. In such a case, the liability on the Company is on profits of business income, where as the tax liability on the shareholder would be on the dividend income. The legislature has chosen to exempt tax on dividend income and has chosen to impose additional tax on profits distributed as dividend. Therefore, the tax as well as additional tax are taxes levied on a domestic company on its profits and it cannot be said that the regular / normal tax is levied on profits and the additional tax is levied on the dividend. When Sectionspecifically states that the additional tax is on the profits distributed as dividend, there is no reason to hold that the additionalis a tax on dividend.(d)is charged on the income earned by an assessee. When profits are distributed as dividend, there is no income earned by a domestic company and consequently, there is no question of taxing the amount distributed as dividend. However, the legislature has chosen to impose additional tax in addition to the regular tax, payable on the profits of a domestic Company. Thus, the regular tax as well as the additional tax are taxes on the profits of the domestic companies.(e) Incomes enumerated in Section 10 are not includible in the total income, because the legislature exempts such income from tax. Dividends referred to in Sectionare covered under Section 10(33) and hence exempt from tax. As noted earlier, the additional tax under Sectionis a tax on the profits distributed as dividend and not a tax on dividend. In the absence of Section 10(33), tax would have been payable on the dividends referred in SectionTherefore, it is clearly evident from Section 10(33) that dividends referred to in Sectionare exempt from tax.(f) It is contended that dividends taxed in the hands of a domestic company under Sectionif held taxable again in the hands of a shareholder, would amount to double taxation. There is no merit in this contention because, additional tax is a tax on the profits of the Company which is distributed as dividend, whereas, tax in the hands of a shareholder is a tax on dividend income.(g) This is also supported by Circular No.763 dated 18 February 1998 issued to explain the provisions of Sectionand Section 10(33) inserted by Finance Act 1997. The Circular, clearly and unequivocally states that Section 10(33) and Sectionare intended to exempt dividend income and levy a new tax on distributed profits on domestic companies. Thus, what is collected under Sectionis the additional tax on profits distributed as dividend and not a tax on dividends, because dividends received are exempt under Section 10(33).(xii) The general principle of law is that a Company is chargeable to tax on its profits as distinct taxable entity and has to pay tax in discharge of its own liability and not on behalf of or as an agent of its shareholders. This position of the general law is recognized and incorporated in Sectionand is not overridden by the statutory provision;(xiii) Income from dividend and similarly, income from mutual funds do not form part of the total income under Section 10(33). The expenditure incurred in relation to earning such income cannot be allowed under Section 14A;(xiv) In order to determine the quantum of the disallowance, there must be a proximate relationship between the expenditure and the income which does not form part of the total income. Once such a proximate relationship exists, the disallowance has to be effected. All expenditure incurred in the earning of income which does not form part of the total income has to be disallowed subject to compliance with the test adopted by the Supreme Court in Walfort and it would not be permissible to restrict the provisions of Section 14A by an artificial method of interpretation.The Court will not lightly reject the plain and grammatical construction of a statute. The subject must be within the letter of the law and the Court will not abandon the words used by the legislature in preference to a diffuse if even ephemeral object of deciphering purpose. Legislative purpose in fiscal enactments must lie within the folds of the words used. Before the Court rejects the plain and grammatical construction of a statute, it must be satisfied that such a construction would lead to a result unintended by the Legislature or result in an absurdity. For one thing, individual cases of hardship, set up on the basis of hypothetical examples tendered at the Bar do not establish absurdity of the law. Moreover, it has been submitted by the Additional Solicitor General that the example tendered before the Court proceeds on several assumptions these being : (i) An assumption that had there been no tax under Sectionthe Board of Directors of a Company would have recommended a higher dividend (higher by the extent of the tax) for distribution to the shareholders; (ii) The assumption that in effect, it is the shareholder who bears the tax under Sectionsince the shareholder has forgone the assumed higher dividend; (iii) An assumption that the payment of tax under Sectionis on behalf of the shareholder. On these assumptions, the conclusion is sought to be drawn by the assessee that the shareholder will suffer twice, namely, by the assumed payment of tax on his behalf under Sectionand by the disallowance on expenditure claimed under Section 14A. We are in agreement with the submission which has been urged on behalf of the Union Government that the contention that the literal interpretation of Section 14A would lead to an absurd consequence is erroneous. As the Supreme Court observed in Walfort, Section 14A represents a serious attempt on the part of Parliament to ensure that the tax incentive to certain incomes should not be used to reduce the tax payable onincome by debiting expenses incurred to earnincome against the taxable income. In other words, what Section 14A effectuates is that a shareholder should not get the benefit both of an exemption under Section 10(33) and also a deduction in respect of the expenditure laid out towards earning tax free income. If the dividend income had not been exempt under Section 10(33), the Revenue would have taxed such dividend income and the assessee would have been entitled to a deduction in respect of its expenditure in relation to that income. Dividend income does not form part of the total income under Section 10(33). Section 14A ensures that the shareholder whose income from dividend is not included in the total income of a previous year shall not claim a deduction in respect of the expenditure incurred in relation to earning such income. Section 14A is founded on a valid rationale that the basic principle of taxation is to tax net income that is to say, gross income minus the expenditure. On that analogy as the Supreme Court observed in Walfort, the exemption is also in respect of net income and expenses allowed can only be in relation to the earning of taxable income. We do not, therefore, accept the submission of the assessee that an absurdity would result on the application of the literal interpretation of Section 14A.The charge of the assessee that there is an inherent arbitrariness in prescribing a uniform method for determining the disallowance of expenditure in relation to the earning ofincome must therefore fail for three reasons. Firstly, as a matter of fundamental principle, when the Court is confronted with a challenge to a classification by tax legislation either on the ground of over or under inclusion, it is trite law that the Court must defer to the wisdom of the legislature. Crudities and inequities are involved in making complex fiscal adjustments that are intrinsic to any fiscal measure. Diverse methods are open to the legislature to achieve a result and if the legislature adopts a particular method, the Court will not substitute its own view for that of the legislature merely because another method appears more suitable or because a better crafted measure could have been put into place. Unless the method which has been selected is capricious, fanciful or arbitrary, the Court will defer to the wisdom of the legislature and to its delegate who is subject to its legislative control. Burdens and disadvantages are not ground enough to strike down the constitutional validity of legislation or subordinate legislation. Cases of individual hardship are similarly not a valid ground for striking down constitutional validity. So long as the measure which has been put into place has nexus with the object sought to be achieved, is passes constitutional muster. Secondly, sub section (2) of Section 14A makes it abundantly clear that the power to apply the prescribed method arises only where the Assessing Officer is not satisfied with the correctness of the claim of the assessee having regard to the accounts of the assessee. It is because the assessee is unable to establish the correctness of the claim in respect of the expenditure incurred in earning income which does not form part of the taxable income that the Assessing Officer is compelled to make a determination. The Learned Additional Solicitor General has placed before the Court material that would indicate that if a simplistic prorate disallowance were to be made, that would as a matter of fact have resulted in a disallowance of Rs.82 Crores on an expenditure of Rs.189.77 Crores. As opposed to this the disallowance under Rule 8D(2)(iii) is restricted to Rs.1.57 Crores. Before the legislature prescribed a uniform method, disputes had occurred between assessees and the department in regard to the method to be adopted in computing the expenditure relatable to the earning ofincome. In this background, if the legislature considered it appropriate to prescribe a particular method that legislative choice cannot be held to be arbitrary or oppressive. Thirdly, sub sections (2) and (3) and the proviso to Section 14A contain sufficient safeguards that would ensure a reasonable exercise of power. Apart from the safeguards to which a reference has been made earlier, the proviso stipulates that nothing contained in the Section shall empower the Assessing Officer to reassess under Section 147; or enhance the assessment or reduce the refund already made; or otherwise increase the liability of the assessee under Section 154, for any assessment year beginning on or before 1 April 2001.60. In the affidavit in reply that has been filed on behalf of the Revenue an explanation has been provided of the rationale underlying Rule 8D. In the written submissions which have been filed by the Additional Solicitor General it has been stated, with reference to Rule 8D(2)(ii) that since funds are fungible, it would be difficult to allocate the actual quantum of borrowed funds that have been used for making tax free investments. It is only the interest on borrowed funds that would be apportioned andthe amount of expenditure by way of interest that will be taken (asin the formula) will exclude any expenditure by way of interest which is directly attributable to any particular income or receipt (for exampleany aspect of the assessees business such as plant/machinery etc.). As regards Rule 8D(2)(iii) it has been submitted that some mechanism or formula had to be adopted for attributing part of the administrative /managerial expenses to tax exempt investment income. The administrative expenses attributable to tax free investment income have a fixed component and a variable component. A view was taken that the disallowance should also be linked to the value of the investment rather than the amount of exempt income. Under Portfolio Management Schemes (PMS) the fee charged ranges between 2 and 2.5% of the portfolio value which would be inclusive of a profit element for the portfolio manager. While the fixed administrative expenses were excluded, on the ground that in the case of a large corporate tax payer they would be spread over a large number of voluminous activities, the variable expenses were computed atpercent of the value of the investment. The justification that has been offered in support of the rationale for Rule 8D cannot be regarded as being capricious, perverse or arbitrary. Applying the tests formulated by the Supreme Court it is not possible for this Court to hold that there is writ on the statute or on the subordinate legislation perversity, caprice or irrationality. There is certainly no63. The fundamental principle of law is that Parliament has plenary power to legislate, on matters falling within its legislative competence and that power extends to the enactment of legislation with prospective and retrospective effect. Legislative competence of Parliament to enact the law is not in dispute. Law raises a presumption that an amendment which affects substantive rights and obligations is intended by the legislature to have prospective effect. On the other hand, amendments on matters of procedure are presumed to be retrospective so as to apply to pending cases. These are, however, presumptions which can be out weighed by the language of an amending statute. That is because the legislature has plenary power to legislate both prospectively and retrospectively. Therefore whether an amending provision is to operate with prospective or retrospective effect has to be determined on the language and ambit of the statutory provision. Amendments which are clarificatory or declaratory of the position in law, as the legislature intended it always to be, are regarded as being retrospective. Hence, when the legislature steps in by amending the law to set right an incorrect judicial interpretation, an inference can be drawn that the amendment was intended to be retrospective. An amendment which is inserted to remedy unintended consequences and to make a provision workable or which supplies an obvious omission and is required to be read into a section to give it reasonable interpretation has been treated as retrospective in operation.64. These principles emerge from the precedent on the subject :(i) In Income Tax Officer v. M.C.Ponnoose (1970) 75 ITR 174 ), the Supreme Court dealt with a case where Section 2(44) containing the definition of the expressionRecovery Officer was substituted by the Finance Act of 1963 and it was provided that the new definition shall be and shall be deemed always to have been substituted. As amended, Clause (ii) of Section 2(44) empowered the State Government to authorize by notification certain land revenue officers to exercise the powers of a tax recovery officer. The State Government issued a notification dated 14 August 1963 which was published in the gazette on 20 August 1963 authorizing various revenue officers to exercise the powers of the Tax Recovery Officer. The notification stated that it shall come into force on 1 April 1962. The Tahsildar had effected an attachment subsequent to 1 April 1962 but prior to 14 August 1963. The Supreme Court held thus:Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or | 1 | 25,745 | 5,412 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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incurred in the earning of that income would have to be disallowed. That is exactly a matter which the Assessing Officer has to determine. Whether or not any expenditure was incurred by the assessee in relation to the earning of non-taxable income falls within the domain of the Assessing Officer. The basis on which the Tribunal had come to its decision for Assessment Years 1998-99, 1999-00 and 2001-02 would not conclude that question.72. The precedents on which reliance has been placed by the assessee would have now to be analyzed. The Supreme Court in its judgment in Radhasoami Satsang (supra) held that res judicata does not apply to income tax proceedings since each assessment year is a unit. However, where a fundamental aspect permeating through different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging that order, it would not be appropriate to allow the position to be changed in a subsequent year, in the absence of any material change justifying the Revenue to take a different view of the matter. Moreover, in the concluding part of the judgment the Supreme Court has held that this decision is confined to the facts of the case and may not be treated as an authority on aspects which have been decided for general application at page 329. The decision of the Supreme Court in Munjal Sales Corporation (Supra) turned purely on the facts of the case. The Supreme Court noted that the opening balance as on 1 April 1994 was Rs.1.91 Crores whereas the loan given to a sister concern was a small amount of Rs.5 lacs. The profits earned by the assessee during the relevant year were held to be sufficient to cover the loan of Rs.5 lacs. In the decision of the Division Bench of this Court in Reliance Utilities (supra) the Division Bench has held that if there be interest free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest free funds available. The decision of the Division Bench turned on a finding of fact by the Tribunal that there were sufficient interest free funds available in that case. The judgment in Reliance Utilities shows that there were interest free owned funds available and not merely reserves. In East India Pharmaceutical Works Ltd. v. Commissioner of Income Tax (1997) 224 ITR 627 ) the Supreme Court in the facts of the case refused to draw any such presumption. In the case of the assessee, the learned Additional Solicitor General has submitted that the reference is made only to reserves and there is no mention of interest free funds. It has been urged that reserves are shown on the liabilities side of the balance-sheet and are represented by a variety of assets on the assets side. These assets could be fixed or non liquid assets and hence not investible. The real enquiry is whether there are interest free funds available on the assets side and in the absence of sufficient proof of available interest free funds, no such presumption can be drawn. Moreover, it has been urged that after the introduction of Section 14A(1), no such presumption can in any event be drawn, since Parliament expressly requires apportionment. We recapitulate our conclusions on this point thus:a) The ITAT had recorded a finding in the earlier assessments that the investments in shares and mutual funds have been made out of own funds and not out of borrowed funds and that there is no nexus between the investments and the borrowings. However, in none of those decisions was the disallowability of expenses incurred in relation to exempt income earned out of investments made out of own funds considered. Moreover, under Section 14A, expenditure incurred in relation to exempt income can be disallowed only if the assessing officer is not satisfied with the correctness of the expenditure claimed by the assessee. In the present case, no such exercise has been carried out and, therefore, the Tribunal was justified in remanding the matter.b) Section 14A was introduced by the Finance Act 2001 with retrospective effect from 1 April 1962. However, in view of the proviso to that Section, the disallowance thereunder could be effectively made from assessment year 2001-2002 onwards. The fact that the Tribunal failed to consider the applicability of Section 14A in its proper perspective, for assessment year 2001-2002 would not bar the Tribunal from considering disallowance under Section 14A in assessment year 2002-2003.c) The decisions reported in Sridev Enterprises (supra), Munjal Sales Corporation (supra) and Radhasoami Satsang (supra) holding that there must be consistency and definiteness in the approach of the revenue would not apply to the facts of the present case, because of the material change introduced by Section 14A by way of statutory disallowance in certain cases. Therefore, the decisions of the Tribunal in the earlier years would have no relevance in considering disallowance in assessment year 2002-2003 in the light of Section 14A of the Act.73. For the reasons which we have indicated, we have come to the conclusion that under Section 14A(1) it is for the Assessing Officer to determine as to whether the assessee had incurred any expenditure in relation to the earning of income which does not form part of the total income under the Act and if so to quantify the extent of the disallowance. The Assessing Officer would have to arrive at his determination after furnishing an opportunity to the assessee to produce its accounts and to place on the record all relevant material in support of the circumstances which are considered to be relevant and germane. For this purpose and in light of our observations made earlier in this section of the judgment, we deem it appropriate and proper to remand the proceedings back to the Assessing Officer for a fresh determination.Conclusion :
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on an expenditure of Rs.189.77 Crores. As opposed to this the disallowance under Rule 8D(2)(iii) is restricted to Rs.1.57 Crores. Before the legislature prescribed a uniform method, disputes had occurred between assessees and the department in regard to the method to be adopted in computing the expenditure relatable to the earning ofincome. In this background, if the legislature considered it appropriate to prescribe a particular method that legislative choice cannot be held to be arbitrary or oppressive. Thirdly, sub sections (2) and (3) and the proviso to Section 14A contain sufficient safeguards that would ensure a reasonable exercise of power. Apart from the safeguards to which a reference has been made earlier, the proviso stipulates that nothing contained in the Section shall empower the Assessing Officer to reassess under Section 147; or enhance the assessment or reduce the refund already made; or otherwise increase the liability of the assessee under Section 154, for any assessment year beginning on or before 1 April 2001.60. In the affidavit in reply that has been filed on behalf of the Revenue an explanation has been provided of the rationale underlying Rule 8D. In the written submissions which have been filed by the Additional Solicitor General it has been stated, with reference to Rule 8D(2)(ii) that since funds are fungible, it would be difficult to allocate the actual quantum of borrowed funds that have been used for making tax free investments. It is only the interest on borrowed funds that would be apportioned andthe amount of expenditure by way of interest that will be taken (asin the formula) will exclude any expenditure by way of interest which is directly attributable to any particular income or receipt (for exampleany aspect of the assessees business such as plant/machinery etc.). As regards Rule 8D(2)(iii) it has been submitted that some mechanism or formula had to be adopted for attributing part of the administrative /managerial expenses to tax exempt investment income. The administrative expenses attributable to tax free investment income have a fixed component and a variable component. A view was taken that the disallowance should also be linked to the value of the investment rather than the amount of exempt income. Under Portfolio Management Schemes (PMS) the fee charged ranges between 2 and 2.5% of the portfolio value which would be inclusive of a profit element for the portfolio manager. While the fixed administrative expenses were excluded, on the ground that in the case of a large corporate tax payer they would be spread over a large number of voluminous activities, the variable expenses were computed atpercent of the value of the investment. The justification that has been offered in support of the rationale for Rule 8D cannot be regarded as being capricious, perverse or arbitrary. Applying the tests formulated by the Supreme Court it is not possible for this Court to hold that there is writ on the statute or on the subordinate legislation perversity, caprice or irrationality. There is certainly no63. The fundamental principle of law is that Parliament has plenary power to legislate, on matters falling within its legislative competence and that power extends to the enactment of legislation with prospective and retrospective effect. Legislative competence of Parliament to enact the law is not in dispute. Law raises a presumption that an amendment which affects substantive rights and obligations is intended by the legislature to have prospective effect. On the other hand, amendments on matters of procedure are presumed to be retrospective so as to apply to pending cases. These are, however, presumptions which can be out weighed by the language of an amending statute. That is because the legislature has plenary power to legislate both prospectively and retrospectively. Therefore whether an amending provision is to operate with prospective or retrospective effect has to be determined on the language and ambit of the statutory provision. Amendments which are clarificatory or declaratory of the position in law, as the legislature intended it always to be, are regarded as being retrospective. Hence, when the legislature steps in by amending the law to set right an incorrect judicial interpretation, an inference can be drawn that the amendment was intended to be retrospective. An amendment which is inserted to remedy unintended consequences and to make a provision workable or which supplies an obvious omission and is required to be read into a section to give it reasonable interpretation has been treated as retrospective in operation.64. These principles emerge from the precedent on the subject :(i) In Income Tax Officer v. M.C.Ponnoose (1970) 75 ITR 174 ), the Supreme Court dealt with a case where Section 2(44) containing the definition of the expressionRecovery Officer was substituted by the Finance Act of 1963 and it was provided that the new definition shall be and shall be deemed always to have been substituted. As amended, Clause (ii) of Section 2(44) empowered the State Government to authorize by notification certain land revenue officers to exercise the powers of a tax recovery officer. The State Government issued a notification dated 14 August 1963 which was published in the gazette on 20 August 1963 authorizing various revenue officers to exercise the powers of the Tax Recovery Officer. The notification stated that it shall come into force on 1 April 1962. The Tahsildar had effected an attachment subsequent to 1 April 1962 but prior to 14 August 1963. The Supreme Court held thus:Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or
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Yogesh Madhav Andhale Vs. State of Maharashtra | as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. In Cross-examination she has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in the cross-examination that "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence of PW-3 Shashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence of PW-8 Kavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have been cross-examined at length, nothing of substance has been elicited in the cross-examination, which would in any manner affect their credibility.14. The learned Counsel for Appellant Yogesh has urged before us that statement of Kavita was recorded on 16th i.e. 4 days after the incident and therefore, the Trial Court was in error in placing implicit reliance on the testimony of PW-8 Kavita. The learned APP has supported the findings arrived at by the Trial Court.According to PW-3 Kavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness. PW-8 Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence of PW-8 Kavita is amply corroborated by the evidence of PW-3 Shashikant who had also fled and had gone to his village where he was informed by PW-8 Kavita about the incident. Thus, the evidence of PW-8 Kavita as well as the evidence of PW-3 Shashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3 Yogesh.15. The learned Counsel for the Appellants have also urged before us that the test identification parade in which PW-3 Shashikant has identified Accused Nos.1 and 6 is vitiated as there are several infirmities in the test identification parade.According to us, even if the test identification parade is vitiated, PW-3 Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath, PW-3 Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus, PW-3 Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is not affected.16. The learned Counsel for Accused No.6 has urged before us that Accused No.6 has undergone approximately two and half years of imprisonment and therefore, he be released on the period of imprisonment already undergone by him. In the light of the evidence of the prosecution witnesses and in the light of the fact that Accused No.6 had abducted deceased Eknath knowing well that deceased Eknath was likely to be subjected to assault and grievous injuries being caused to him, does not merit any consideration from the Court of his release from the period of imprisonment already undergone by him. In our opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court. | 0[ds]6. Prosecution has examinedDagadu, father of deceased Eknath. He deposes about being informed on 12.12.2010 that his son Eknath had been killed and his dead body was kept at the Sassoon Hospital, Pune. He accordingly rushed to Pune and reached Sassoon Hospital on 13.12.2010 at about 6.30 a.m. and identified the dead body of his son. He had thereafter lodged his report at Exhibit 79.7. Prosecution has examinedShashikant Kokatikar, a friend of deceased Eknath, who deposes that he was also employed and was working in the Concentric Heldex Company at Lonikand.Kavita, his cousin who was residing at Sanaswadi.Shashikant was also residing at Sanaswadi in the Chairmanvasti. Deceased Eknath was also residing in the Chairmanvasti in a room which was adjoining to the room of Shashikant. One Sanjay Jadhav was room mate ofShashikant. Shashikant further deposes that Accused No.1 Sharad was also residing at Chairmanvasti and was employed as a Security Guard with Johndear Company and was residing in the room opposite the room ofShashikant. According to Shashikant, his relations with Accused No.1 Sharad were cordial and Accused No.1 Sharad was residing alongwith his wife Accused No.2 Seema. Deceased Eknath had informed Shashikant that Accused No.2 Seema, wife of Accused No.1 Sharad, was friendly with deceased Eknath and Eknath had often talked with Seema on mobile. Shashikant told Eknath to immediately stop talking to Seema. Shashikant also inquired from Eknath as to how he had been able to secure the mobile number of Seema and Eknath had informed him that he had taken the mobile number of Seema fromKavita. Sometimes, deceased Eknath used to call Seema from the mobile ofShashikant. In July 2010, deceased Eknath had informed Shashikant that he had received a telephone call from Seema and he had gone to the room of Seema twice.In October 2010, Shashikant vacated the room in Chairmanvasti and shifted to Kanadevasti alongwith his cousinKavita. In December 2010, he alone shifted to Tulapurphata vasti. On 11.12.2010, he had gone to the Company at 6.00 a.m. and he had learnt that deceased Eknath had been assaulted and was taken away on a motorcycle from the gate of the Company. At about 8.15 a.m. he learnt that the person who had been assaulted and taken away was deceased Eknath and therefore, immediately telephoned Eknath on his mobile. Deceased Eknath had informed him that he was at Sanaswadi and was being assaulted. While deceased Eknath was talking withShashikant, the mobile phone was snatched from him and the person who had snatched the mobile asked Shashikant as to why he had called. That person also inquired from Shashikant as to where he was and Shashikant replied that he was in the Concentric Heldex Company. That person then asked him to come immediately to Sanaswadi but Shashikant informed him that since he was on duty, he could not come. That person then threatened Shashikant that he would be taken in the same manner like Eknath. Shashikant identified the voice of Accused No.1 Sharad and therefore, took leave of half day and went to his room and took his baggage and fled to Kolhapur.On reaching Kolhapur he metKavita, who informed him that on 11.12.2010, Accused No.1 Sharad alongwith Accused No.2 Seema and one more lady and 2 to 3 other persons had come to her house and had inquired the whereabouts of Shashikant. The accused had asked Kavita as to why she had given the mobile number of Seema to deceased Eknath. Kavita further disclosed to him that the accused had assaulted her and then had taken her to the place where deceased Eknath was brought and in her presence, Eknath was asked as to how he had obtained the mobile number of Seema. Shashikant learnt on the next day that Eknath had been killed. He has admitted that his statement was recorded by the Police on 16.12.2010.8. Inhe has admitted that he was acquainted with deceased Eknath since 5 months prior to his death. He has admitted that deceased Eknath was unmarried. Shashikant admitted that he had not disclosed to anyone about the telephone talk between Eknath and Seema. Shashikant has admitted that he used to often talk withSantosh on telephone. He has denied the suggestion that deceased Eknath had not informed him on telephone that he was at Sanaswadi and was being assaulted.9. Prosecution has examinedVijay, who was also an employee working in Concentric Heldex Company and who deposes that he knew deceased Eknath. According toVijay, he and deceased Eknath came out of the Company after performing the duty from 10.00 p.m. to 6.00 a.m. on 11.12.2010. According to Vijay, he and Eknath then boarded the bus which was parked near the gate of the Company. At that time one person came in the bus and took Eknath alongwith him. That person had a strong physique and was wearing a blackish or bluish jerkin. That person took deceased Eknath near another person who was standing in front of the bus. He thereafter heard the cries of Eknath as "Save Save" and therefore, alighted alongwith the other workers from the bus and went near Eknath. He noticed the two persons assaulting Eknath with a wooden log. Vijay therefore questioned those persons as to why they were beating Eknath and those persons informed him that it was their private affair and Vijay should not interfere. The assailants then took Eknath on a motorcycle towards the Nagar Road. Vijay informed the said incident to the Assistant Manager Sunil Aher. On 12.12.2010, the Police arrived for inquiry and at that time he learnt that the dead body of Eknath was found near the Toll Naka near the Nilgiri forest. He has identified the said persons as Accused Nos.1 and 6. He deposes that on 5.3.2010 he identified the Accused Nos.1 and 6 in the test identification parade.10. Inhe has admitted that after finishing the 3rd shift, normally 30 to 40 persons come out of the Company. He has admitted that his relations with deceased Eknath were friendly as Eknath was aHe has admitted that deceased Eknath was wearing the Company uniform. He has admitted inthat at about 5 to 10 minutes, Accused Nos.1 and 6 again returned for taking the mobile of deceased Eknath which was with one Kailas Bhosale,in the bus. An omission has been elicited that he had not stated in his previous statement about hearing the cries of deceased Eknath as "Save Save". He has denied the suggestion that the accused were shown to him by the Police prior to the test identification parade.11. Prosecution has examinedKavita, a cousin ofShashikant, who deposes that on 5.4.2010 she alongwith her husband came for residing at Pune. Her husband Ravindra Shinde was employed in the Global Company in the House Keeping Department and she was residing in Chairmanvasti, Sansaswadi, Pune. On 27.5.2010, her husband met with an accident and since his leg was fractured, her husband did not attend the duty for 3 months. Deceased Eknath, who was also residing in the same chawl used to visit the house for meeting her husband Ravindra.Kavita has admitted that she knew Accused No.2 Ashwini @ Seema, wife of Accused No.1 Sharad. She has also claimed that she knew Accused No.5 Sunita Andhale, wife of Accused No.3 Yogesh as both of them were residing near her house. Accused No.1 Sharad Shelke was employed as a Security Guard. According toKavita, Accused No.2 Seema used to inquire about deceased Eknath and she used to seek details as to where he was employed and whether Kavita was knowing him and where Eknath was residing. Kavita had informed her that she knew deceased Eknath as he used to visit her husband and she also knew that he was resident of Kolhapur.After some days, Kavita left the room at Chairmanvasti and went to reside in the chawl of one Vijay Kande. On 11.12.2010 at about 8.15 a.m. Accused No.2 Seema, Accused No.5 Sunita Andhale, Accused No.1 Sharad, Accused No.3 Yogesh and 3 other persons came to her room and started assaulting her. Accused were alleging that Kavita had given the mobile phone number of Accused No.2 Seema to deceased Eknath. Kavita denied to have given the mobile number of Accused No.2 Seema to deceased Eknath. All the accused then dragged her near the Sakshi Samiksha Building which was situated nearby. Kavita noticed deceased Eknath was lying there and was unconscious. Deceased Eknath was wearing banian, underwear and black socks. Three other persons were also standing there. Accused No.1 Sharad and Accused No.3 Yogesh and the other three persons then started assaulting Eknath by giving kicks and fists blows. One of the unknown assailants was armed with a stick in his hand and was hitting the stick on the ground in order to frighten Eknath. Kavita therefore asked deceased Eknath to tell the accused the truth as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. Inshe has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in thethat "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence ofShashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence ofKavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have beenat length, nothing of substance has been elicited in thewhich would in any manner affect theirKavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness.Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence ofKavita is amply corroborated by the evidence ofShashikant who had also fled and had gone to his village where he was informed byKavita about the incident. Thus, the evidence ofKavita as well as the evidence ofShashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3to us, even if the test identification parade is vitiated,Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath,Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus,Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is notour opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court.17. Thus, after considering the rival submissions, in our opinion, the Criminal Appeals filed by the Appellants are without any merit and therefore, deserve to be dismissed. | 0 | 4,279 | 2,458 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. In Cross-examination she has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in the cross-examination that "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence of PW-3 Shashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence of PW-8 Kavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have been cross-examined at length, nothing of substance has been elicited in the cross-examination, which would in any manner affect their credibility.14. The learned Counsel for Appellant Yogesh has urged before us that statement of Kavita was recorded on 16th i.e. 4 days after the incident and therefore, the Trial Court was in error in placing implicit reliance on the testimony of PW-8 Kavita. The learned APP has supported the findings arrived at by the Trial Court.According to PW-3 Kavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness. PW-8 Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence of PW-8 Kavita is amply corroborated by the evidence of PW-3 Shashikant who had also fled and had gone to his village where he was informed by PW-8 Kavita about the incident. Thus, the evidence of PW-8 Kavita as well as the evidence of PW-3 Shashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3 Yogesh.15. The learned Counsel for the Appellants have also urged before us that the test identification parade in which PW-3 Shashikant has identified Accused Nos.1 and 6 is vitiated as there are several infirmities in the test identification parade.According to us, even if the test identification parade is vitiated, PW-3 Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath, PW-3 Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus, PW-3 Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is not affected.16. The learned Counsel for Accused No.6 has urged before us that Accused No.6 has undergone approximately two and half years of imprisonment and therefore, he be released on the period of imprisonment already undergone by him. In the light of the evidence of the prosecution witnesses and in the light of the fact that Accused No.6 had abducted deceased Eknath knowing well that deceased Eknath was likely to be subjected to assault and grievous injuries being caused to him, does not merit any consideration from the Court of his release from the period of imprisonment already undergone by him. In our opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court.
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that she knew deceased Eknath as he used to visit her husband and she also knew that he was resident of Kolhapur.After some days, Kavita left the room at Chairmanvasti and went to reside in the chawl of one Vijay Kande. On 11.12.2010 at about 8.15 a.m. Accused No.2 Seema, Accused No.5 Sunita Andhale, Accused No.1 Sharad, Accused No.3 Yogesh and 3 other persons came to her room and started assaulting her. Accused were alleging that Kavita had given the mobile phone number of Accused No.2 Seema to deceased Eknath. Kavita denied to have given the mobile number of Accused No.2 Seema to deceased Eknath. All the accused then dragged her near the Sakshi Samiksha Building which was situated nearby. Kavita noticed deceased Eknath was lying there and was unconscious. Deceased Eknath was wearing banian, underwear and black socks. Three other persons were also standing there. Accused No.1 Sharad and Accused No.3 Yogesh and the other three persons then started assaulting Eknath by giving kicks and fists blows. One of the unknown assailants was armed with a stick in his hand and was hitting the stick on the ground in order to frighten Eknath. Kavita therefore asked deceased Eknath to tell the accused the truth as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. Inshe has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in thethat "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence ofShashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence ofKavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have beenat length, nothing of substance has been elicited in thewhich would in any manner affect theirKavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness.Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence ofKavita is amply corroborated by the evidence ofShashikant who had also fled and had gone to his village where he was informed byKavita about the incident. Thus, the evidence ofKavita as well as the evidence ofShashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3to us, even if the test identification parade is vitiated,Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath,Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus,Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is notour opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court.17. Thus, after considering the rival submissions, in our opinion, the Criminal Appeals filed by the Appellants are without any merit and therefore, deserve to be dismissed.
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DIGAMBER Vs. KACHRU DEAD THR LRS | R. BANUMATHI, J.1. This appeal arises out of the judgment dated 13.01.2005 passed by the High Court of Bombay at Aurangabad Bench in Writ Petition No.1389 of 1989 whereby the High Court held that the predecessors in title of the appellants namely Vasudeo and Chandu cannot take advantage of Section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950.2. Kisan Punde, predecessor in title of the respondents namely Vithal, Tukaram, Kachru and Madan (erstwhile respondents No.1 to 4) was the owner of the agricultural land. The suit land was owned by Kisan Punde/father of respondents No.1 to 4 herein and the land was mortgaged to one Vasudeorao for Rs.200/- in 1941 and which was further mortgaged to Chandu Narsingh Pardeshi/father of appellants in 1 REPORTABLEthe year 1942. Possession of the suit land was given to Vasudeorao who gave possession to the father of the appellants. Appellants are thus the mortgagees of the suit land admeasuring 29 acres and 4 gunthas situated at Dhondalgaon, Aurangabad and they are in possession since 1942 vide mortgage deed dated 25.02.1942. Chandu/father of appellants has alienated 5 acres of land to respondents Bakru s/o Rangnath and Sheelabai w/o Uttamrao Deshpande.3. Aggrieved by such alienation, sons of Kisan namely Vithal, Tukaram, Kachru and Madan filed petition before the Additional Collector, Aurangabad for termination of the mortgage and restoration of possession under Section 10 of the Prevention of Agricultural Lands Alienation Act, 1939 read with Section 103 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The said application was allowed ex- parte on 27.07.1984. The said order was challenged before the Additional Commissioner. The Additional Commissioner in appeal remanded the case to the Additional Collector on 12.03.1986 with a direction to decide the matter afresh after giving opportunity of hearing to both the parties.4. The Additional Collector after consideration of evidence placed before him, by order dated 14.05.1988, recorded a finding that respondents No.1 to 4 – sons of Kisan are entitled to have possession of the suit property as per Section 10 of the 1939 Act and allowed the application filed by sons of Kisan. Revision filed by the appellants before Additional Commissioner was dismissed vide order dated 30.03.1989 confirming the order of the Additional Collector.5. Aggrieved by the order of Additional Commissioner, appellants filed the writ petition. The said Writ Petition No.1389 of 1989 filed by the appellants before the High Court was dismissed vide impugned order dated 13.01.2005 holding that the proceedings initiated by the sons of Kisan namely Vithal, Tukaram, Kachru and Madan is maintainable. The High Court held that Section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 excludes the mortgagee in possession to be termed as ?deemed tenant?. Aggrieved by the above order, appellants have preferred this appeal. Respondents No.1, 2 and 6 were deleted from the array of parties at the risk of the appellants vide order of this Court dated 23.08.2011.6. We have heard learned counsel appearing on behalf of the parties and perused the materials on record.7. Mr. Babasaheb Govindrao Kale representing the purchasers (respondents No.1 to 9) and Mr. Devidaas Madan Punde for original owner (representing respondents No. 10 to 17) are personally present in the Court. | 1[ds]from the parties in appeal, all the concerned parties viz. Barku Raghunath Raut, Janabai Barku Raut, Shriram Kashinath Wakle, Annapurna Shriram Wakle, Babasaheb Shriram Wakle, Kushinath Eknath Kale, Rajendra Eknath Kale, Vimalbai Babasaheb Kale, Yogesh Babasaheb Kale, Devidas Madan Punde, Kailas Madan Punde, Bhimabai Madan Punde, Indubai Surybhan Tathe, Sindhubai Dadasaheb Pawar, Dnyaneshwar Sarjaram Pawar and Gayabai Machindra Pawar have filed their affidavits sworn in by them individually stating that they have amicably settled the matter and that they have entered into a Memo of Compromise. They have stated that in terms of Compromise Memo (Annexure-A3) and Sketch (Annexure-A5), the appeal may be disposed of.9. As per the terms of Compromise Memo, the following is the present Family Holdings of the Suit Land i.e. 25 acres and the same reads asAs per the Memo of Compromise, how the lands are to be distributed among the parties as shown by way of Chart of allotment of land is asabove suit land is divided into plots and allotted as indicated in the chart are marked in the map/sketch filed (Annexure-A5). The persons who are parties to the settlement of the matter have also filed individual affidavits endorsing the compromise entered into between the parties. | 1 | 584 | 236 | ### Instruction:
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R. BANUMATHI, J.1. This appeal arises out of the judgment dated 13.01.2005 passed by the High Court of Bombay at Aurangabad Bench in Writ Petition No.1389 of 1989 whereby the High Court held that the predecessors in title of the appellants namely Vasudeo and Chandu cannot take advantage of Section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950.2. Kisan Punde, predecessor in title of the respondents namely Vithal, Tukaram, Kachru and Madan (erstwhile respondents No.1 to 4) was the owner of the agricultural land. The suit land was owned by Kisan Punde/father of respondents No.1 to 4 herein and the land was mortgaged to one Vasudeorao for Rs.200/- in 1941 and which was further mortgaged to Chandu Narsingh Pardeshi/father of appellants in 1 REPORTABLEthe year 1942. Possession of the suit land was given to Vasudeorao who gave possession to the father of the appellants. Appellants are thus the mortgagees of the suit land admeasuring 29 acres and 4 gunthas situated at Dhondalgaon, Aurangabad and they are in possession since 1942 vide mortgage deed dated 25.02.1942. Chandu/father of appellants has alienated 5 acres of land to respondents Bakru s/o Rangnath and Sheelabai w/o Uttamrao Deshpande.3. Aggrieved by such alienation, sons of Kisan namely Vithal, Tukaram, Kachru and Madan filed petition before the Additional Collector, Aurangabad for termination of the mortgage and restoration of possession under Section 10 of the Prevention of Agricultural Lands Alienation Act, 1939 read with Section 103 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The said application was allowed ex- parte on 27.07.1984. The said order was challenged before the Additional Commissioner. The Additional Commissioner in appeal remanded the case to the Additional Collector on 12.03.1986 with a direction to decide the matter afresh after giving opportunity of hearing to both the parties.4. The Additional Collector after consideration of evidence placed before him, by order dated 14.05.1988, recorded a finding that respondents No.1 to 4 – sons of Kisan are entitled to have possession of the suit property as per Section 10 of the 1939 Act and allowed the application filed by sons of Kisan. Revision filed by the appellants before Additional Commissioner was dismissed vide order dated 30.03.1989 confirming the order of the Additional Collector.5. Aggrieved by the order of Additional Commissioner, appellants filed the writ petition. The said Writ Petition No.1389 of 1989 filed by the appellants before the High Court was dismissed vide impugned order dated 13.01.2005 holding that the proceedings initiated by the sons of Kisan namely Vithal, Tukaram, Kachru and Madan is maintainable. The High Court held that Section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 excludes the mortgagee in possession to be termed as ?deemed tenant?. Aggrieved by the above order, appellants have preferred this appeal. Respondents No.1, 2 and 6 were deleted from the array of parties at the risk of the appellants vide order of this Court dated 23.08.2011.6. We have heard learned counsel appearing on behalf of the parties and perused the materials on record.7. Mr. Babasaheb Govindrao Kale representing the purchasers (respondents No.1 to 9) and Mr. Devidaas Madan Punde for original owner (representing respondents No. 10 to 17) are personally present in the Court.
### Response:
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### Explanation:
from the parties in appeal, all the concerned parties viz. Barku Raghunath Raut, Janabai Barku Raut, Shriram Kashinath Wakle, Annapurna Shriram Wakle, Babasaheb Shriram Wakle, Kushinath Eknath Kale, Rajendra Eknath Kale, Vimalbai Babasaheb Kale, Yogesh Babasaheb Kale, Devidas Madan Punde, Kailas Madan Punde, Bhimabai Madan Punde, Indubai Surybhan Tathe, Sindhubai Dadasaheb Pawar, Dnyaneshwar Sarjaram Pawar and Gayabai Machindra Pawar have filed their affidavits sworn in by them individually stating that they have amicably settled the matter and that they have entered into a Memo of Compromise. They have stated that in terms of Compromise Memo (Annexure-A3) and Sketch (Annexure-A5), the appeal may be disposed of.9. As per the terms of Compromise Memo, the following is the present Family Holdings of the Suit Land i.e. 25 acres and the same reads asAs per the Memo of Compromise, how the lands are to be distributed among the parties as shown by way of Chart of allotment of land is asabove suit land is divided into plots and allotted as indicated in the chart are marked in the map/sketch filed (Annexure-A5). The persons who are parties to the settlement of the matter have also filed individual affidavits endorsing the compromise entered into between the parties.
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Ram Sewak Yadav Vs. Hussain Kamil Kidwai & Ors | oral evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scruting of ballot papers, the allegations contained in the various paragraphs wold be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do.11. Reliance was placed both before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali, 22 Ele. LR 288 (SC) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In Bhim Sens case, 22 Ele LR 288 (SC) a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency. The principal ground in support of the petition was that it was incumbent upon the returning officer to go into each case of double voting in order to reject one of the two votes cast in contravention of S. 63(1) of the Representation of the People Act, and that the returning officer having failed to discharge his duty to reject ballot papers cast in contravention of S. 63 the petitioner believed that the successful candidate "could receive many void votes". The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in case like the one before the Court, definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do not think that Bhim Sens case, 22 Ele. LR 288 (SC) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sens case, 22 Ele. LR 288 (SC) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged b the defeated candidate that there had been contravention of the provisions of S. 63(1) of the cl. by the returning officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words "alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegation of material facts and without disclosing a prima facie case in support of the claim made.12. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles. | 1[ds]6. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under theCode of Civil Procedure when trying a suit. But the power which the Civil Court may exercise in the trial of suits is confined to the narrow limits of O. 11.Code of Civil Procedure. Inspection of documents under O. 11.Code of Civil Procedure may be ordered under R. 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under R. 18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under O. 11Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers : that power is clearly implicit in Ss. 100(1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from O. 11Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss. 94 and 128(1).There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground the there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of S. 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application inspection must beapplicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words "alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegation of material facts and without disclosing a prima facie case in support of the claim made.12. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles. | 1 | 4,560 | 781 | ### Instruction:
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oral evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scruting of ballot papers, the allegations contained in the various paragraphs wold be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do.11. Reliance was placed both before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali, 22 Ele. LR 288 (SC) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In Bhim Sens case, 22 Ele LR 288 (SC) a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency. The principal ground in support of the petition was that it was incumbent upon the returning officer to go into each case of double voting in order to reject one of the two votes cast in contravention of S. 63(1) of the Representation of the People Act, and that the returning officer having failed to discharge his duty to reject ballot papers cast in contravention of S. 63 the petitioner believed that the successful candidate "could receive many void votes". The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in case like the one before the Court, definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do not think that Bhim Sens case, 22 Ele. LR 288 (SC) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sens case, 22 Ele. LR 288 (SC) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged b the defeated candidate that there had been contravention of the provisions of S. 63(1) of the cl. by the returning officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words "alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegation of material facts and without disclosing a prima facie case in support of the claim made.12. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles.
### Response:
1
### Explanation:
6. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under theCode of Civil Procedure when trying a suit. But the power which the Civil Court may exercise in the trial of suits is confined to the narrow limits of O. 11.Code of Civil Procedure. Inspection of documents under O. 11.Code of Civil Procedure may be ordered under R. 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under R. 18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under O. 11Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers : that power is clearly implicit in Ss. 100(1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from O. 11Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss. 94 and 128(1).There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground the there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of S. 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application inspection must beapplicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words "alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegation of material facts and without disclosing a prima facie case in support of the claim made.12. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles.
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JIT RAM NOW DECEASED THROUGH LRS Vs. SATNAM SINGH | Uday Umesh Lalit, J.1. Leave granted.2. This Appeal is directed against the judgment and order dated 28.03.2019 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No.3809 of 2013 (O&M).3. One Banta, father of Jit Ram and Sibo, died on 02.07.1992. Sibo, though married, was not staying with her husband, but used to reside with her father Banta. After the death of Banta, Sibo filed Civil Suit No.143 of 1993 for declaration that she had become the owner and was in possession of land admeasuring 5 kanals out of land admeasuring 9 kanals 14 marlas owned and possessed by Banta on the basis of Will dated 26.06.1992 executed by Banta. Sibo also sought a decree for permanent injunction to restrain Jit Ram from interfering with her possession and from alienating the land or any portion thereof. The Suit was dismissed by the Additional Civil Judge (Senior Division), Garhshankar, by his judgment and decree dated 28.04.1998. It was held that the Will, on the basis of which the claim was raised, was highly suspicious and that Sibo had failed to prove her case.4. The aforesaid judgment was challenged by Satnam Singh, a relation of Sibo and Jit Ram, by filing First Appeal in the court of the Additional District Judge, Hoshiarpur. It was submitted that with the consent of Banta he had erected a kachha structure in the land in question and that he was in occupation of that structure in his own right. The contentions were rejected and the First Appeal was dismissed by the Lower Appellate Court by its judgment and order dated 14.01.2003. No further challenge was raised and thus, the decree became final as against Sibo and Satnam Singh, the Respondent herein.5. Thereafter, Civil Suit No.293 of 2003 was filed by Jit Ram against the Respondent for possession of portion of the property over which that kachha structure marked as ‘ABCD? in the site plan was situate. The matter was contested by the Respondent by filing his written statement submitting inter alia that by virtue of a Will executed by Sibo in favour of him, the Respondent had an independent interest in the property. A plea of adverse possession was also taken in the alternative. The Trial Court dismissed said Suit by its judgment and decree dated 11.04.2011 holding inter alia that the Respondent had perfected his title by adverse possession and the Suit was barred by limitation.6. Jit Ram, being aggrieved, preferred Civil Appeal No. 45 of 2011 in the Court of Additional District Judge, Hoshiarpur, which was allowed by Judgment and Decree dated 19.07.2013. The Appellate Court found that the claim of Sibo having been dismissed in the earlier round, she could not have conferred any title with respect to the property by a Will in favour of the Respondent. It was also found that the possession of the Respondent was purely permissive and that the claim on the ground of adverse possession was completely untenable.7. The Respondent, being aggrieved, filed Regular Second Appeal No.3809 of 2013 (O&M) in the High Court. Jit Ram having expired during the pendency of said Appeal, his heirs were substituted in his place. By its Judgment and Order dated 28.03.2019 said Second Appeal was allowed by the High Court. The High Court approved the findings of the Appellate Court insofar as it was held that the Respondent could not have succeeded to the suit property on the basis of any will executed by Sibo. However, the finding as regards issue of adverse possession was reversed and the finding of the Trial Court was restored. It was observed that the Respondent had remained in open and hostile possession of the Suit property which he had constructed in the year 1989.8. In this Appeal we have heard Mr. O.P. Bhadani, learned Advocate for the Appellant and Ms. Tina Garg, learned Advocate for the Respondent.9. The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD? and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding. In our view, the High Court clearly erred in accepting the Second Appeal.10. The fact however remains that the structure was put up by the Respondent. Pursuant to the interim direction issued by this Court the pictures of the structure have been shown to the Court. The structure is completely dilapidated and in our view the value of the structure may not have been more than Rs.5,000/-. However, considering the fact that the money was spent by the Respondent in the year 1989, in our view, ends of justice would be met if the Appellants are directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards the cost of the structure. | 1[ds]9. The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD? and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding. In our view, the High Court clearly erred in accepting the Second Appeal.10. The fact however remains that the structure was put up by the Respondent. Pursuant to the interim direction issued by this Court the pictures of the structure have been shown to the Court. The structure is completely dilapidated and in our view the value of the structure may not have been more than Rs.5,000/-. However, considering the fact that the money was spent by the Respondent in the year 1989, in our view, ends of justice would be met if the Appellants are directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards the cost of the structure. | 1 | 929 | 215 | ### Instruction:
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Uday Umesh Lalit, J.1. Leave granted.2. This Appeal is directed against the judgment and order dated 28.03.2019 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No.3809 of 2013 (O&M).3. One Banta, father of Jit Ram and Sibo, died on 02.07.1992. Sibo, though married, was not staying with her husband, but used to reside with her father Banta. After the death of Banta, Sibo filed Civil Suit No.143 of 1993 for declaration that she had become the owner and was in possession of land admeasuring 5 kanals out of land admeasuring 9 kanals 14 marlas owned and possessed by Banta on the basis of Will dated 26.06.1992 executed by Banta. Sibo also sought a decree for permanent injunction to restrain Jit Ram from interfering with her possession and from alienating the land or any portion thereof. The Suit was dismissed by the Additional Civil Judge (Senior Division), Garhshankar, by his judgment and decree dated 28.04.1998. It was held that the Will, on the basis of which the claim was raised, was highly suspicious and that Sibo had failed to prove her case.4. The aforesaid judgment was challenged by Satnam Singh, a relation of Sibo and Jit Ram, by filing First Appeal in the court of the Additional District Judge, Hoshiarpur. It was submitted that with the consent of Banta he had erected a kachha structure in the land in question and that he was in occupation of that structure in his own right. The contentions were rejected and the First Appeal was dismissed by the Lower Appellate Court by its judgment and order dated 14.01.2003. No further challenge was raised and thus, the decree became final as against Sibo and Satnam Singh, the Respondent herein.5. Thereafter, Civil Suit No.293 of 2003 was filed by Jit Ram against the Respondent for possession of portion of the property over which that kachha structure marked as ‘ABCD? in the site plan was situate. The matter was contested by the Respondent by filing his written statement submitting inter alia that by virtue of a Will executed by Sibo in favour of him, the Respondent had an independent interest in the property. A plea of adverse possession was also taken in the alternative. The Trial Court dismissed said Suit by its judgment and decree dated 11.04.2011 holding inter alia that the Respondent had perfected his title by adverse possession and the Suit was barred by limitation.6. Jit Ram, being aggrieved, preferred Civil Appeal No. 45 of 2011 in the Court of Additional District Judge, Hoshiarpur, which was allowed by Judgment and Decree dated 19.07.2013. The Appellate Court found that the claim of Sibo having been dismissed in the earlier round, she could not have conferred any title with respect to the property by a Will in favour of the Respondent. It was also found that the possession of the Respondent was purely permissive and that the claim on the ground of adverse possession was completely untenable.7. The Respondent, being aggrieved, filed Regular Second Appeal No.3809 of 2013 (O&M) in the High Court. Jit Ram having expired during the pendency of said Appeal, his heirs were substituted in his place. By its Judgment and Order dated 28.03.2019 said Second Appeal was allowed by the High Court. The High Court approved the findings of the Appellate Court insofar as it was held that the Respondent could not have succeeded to the suit property on the basis of any will executed by Sibo. However, the finding as regards issue of adverse possession was reversed and the finding of the Trial Court was restored. It was observed that the Respondent had remained in open and hostile possession of the Suit property which he had constructed in the year 1989.8. In this Appeal we have heard Mr. O.P. Bhadani, learned Advocate for the Appellant and Ms. Tina Garg, learned Advocate for the Respondent.9. The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD? and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding. In our view, the High Court clearly erred in accepting the Second Appeal.10. The fact however remains that the structure was put up by the Respondent. Pursuant to the interim direction issued by this Court the pictures of the structure have been shown to the Court. The structure is completely dilapidated and in our view the value of the structure may not have been more than Rs.5,000/-. However, considering the fact that the money was spent by the Respondent in the year 1989, in our view, ends of justice would be met if the Appellants are directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards the cost of the structure.
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9. The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD? and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding. In our view, the High Court clearly erred in accepting the Second Appeal.10. The fact however remains that the structure was put up by the Respondent. Pursuant to the interim direction issued by this Court the pictures of the structure have been shown to the Court. The structure is completely dilapidated and in our view the value of the structure may not have been more than Rs.5,000/-. However, considering the fact that the money was spent by the Respondent in the year 1989, in our view, ends of justice would be met if the Appellants are directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards the cost of the structure.
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Mangulu Sahu Ramahari Sahu Vs. Sales Tax Officer, Ganjam | Hegde, J.1. This is an appeal by Special Leave arising from the Order of the Orissa High Court summarily dismissing the Writ Petition under Article 227 of the Constitution. The question that arose for decision in that application was whether chillies and lemons were `vegetables within the meaning of the Orissa Sales Tax Act, 1947. The Sales Tax Officer following the decision of the Orissa High Court in Dhadi Sahu v. Commr. of Sales Tax, Orissa, ILR (1961) Cut 175 came to the conclusion that they were not vegetables. In view of the decision in question, the appellant instead of going up in appeal against the order of the Assessment Authority, went straight to the High Court in a Writ Petition under Article 227 of the Constitution, as there was no purpose in his going up in appeal to the authorities under the Sales Tax Act in view of the High Court decision. They were bound by the decision of the High Court. As mentioned earlier, the High Court summarily dismissed the Writ Petition evidently following its earlier decision.2. The primary question for our consideration is whether chillies and lemons are vegetables as contemplated by the Orissa Sales Tax Act. The Orissa High Court in Dhadi Sahus case (supra) had taken the view that before an item can be considered as vegetable, it should be the principal item of food.It also examined the botanical meaning of that word. The view taken by that court is wholly wrong. This Court had occasion to consider the meaning of expression `vegetables in Ramavatar Budhaiprasad v. Asstt. Sales Tax Officer, Akola, (1961) 12 STC 286 = (AIR 1961 SC 1325 ). Therein this Court observed that the word `vegetables must be construed neither in a technical sense nor from the botanical point of view, it should be understood as in common parlance. A word which is not defined in the Act but which is a word of every day use must be construed in its popular sense. In that case, this Court took the view that the word `vegetable should be understood as denoting the class of vegetables which are grown in kitchen garden or in a farm and are used for the tables. There can be no dispute that both chillies and lemons are grown in kitchen gardens or at any rate in farms and they are used for the tables. Mr. Mehta, appearing for the State of Orissa contended that in Orissa chillies and lemons are not used as articles of food. We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables.In that view it is not necessary for us to go into the question whether at any rate they are fruits, sales or purchases of which are exempt from sales tax. | 1[ds]2. The primary question for our consideration is whether chillies and lemons are vegetables as contemplated by the Orissa Sales Tax Act. The Orissa High Court in Dhadi Sahus case (supra) had taken the view that before an item can be considered as vegetable, it should be the principal item of food.It also examined the botanical meaning of that word. The view taken by that court is wholly wrong. This Court had occasion to consider the meaning of expression `vegetables in Ramavatar Budhaiprasad v. Asstt. Sales Tax Officer, Akola, (1961) 12 STC 286 = (AIR 1961 SC 1325 ). Therein this Court observed that the word `vegetables must be construed neither in a technical sense nor from the botanical point of view, it should be understood as in common parlance. A word which is not defined in the Act but which is a word of every day use must be construed in its popular sense. In that case, this Court took the view that the word `vegetable should be understood as denoting the class of vegetables which are grown in kitchen garden or in a farm and are used for the tables. There can be no dispute that both chillies and lemons are grown in kitchen gardens or at any rate in farms and they are used for the tables.Mr. Mehta, appearing for the State of Orissa contended that in Orissa chillies and lemons are not used as articles of food.We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables.In that view it is not necessary for us to go into the question whether at any rate they are fruits, sales or purchases of which are exempt from sales tax. | 1 | 555 | 360 | ### 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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Hegde, J.1. This is an appeal by Special Leave arising from the Order of the Orissa High Court summarily dismissing the Writ Petition under Article 227 of the Constitution. The question that arose for decision in that application was whether chillies and lemons were `vegetables within the meaning of the Orissa Sales Tax Act, 1947. The Sales Tax Officer following the decision of the Orissa High Court in Dhadi Sahu v. Commr. of Sales Tax, Orissa, ILR (1961) Cut 175 came to the conclusion that they were not vegetables. In view of the decision in question, the appellant instead of going up in appeal against the order of the Assessment Authority, went straight to the High Court in a Writ Petition under Article 227 of the Constitution, as there was no purpose in his going up in appeal to the authorities under the Sales Tax Act in view of the High Court decision. They were bound by the decision of the High Court. As mentioned earlier, the High Court summarily dismissed the Writ Petition evidently following its earlier decision.2. The primary question for our consideration is whether chillies and lemons are vegetables as contemplated by the Orissa Sales Tax Act. The Orissa High Court in Dhadi Sahus case (supra) had taken the view that before an item can be considered as vegetable, it should be the principal item of food.It also examined the botanical meaning of that word. The view taken by that court is wholly wrong. This Court had occasion to consider the meaning of expression `vegetables in Ramavatar Budhaiprasad v. Asstt. Sales Tax Officer, Akola, (1961) 12 STC 286 = (AIR 1961 SC 1325 ). Therein this Court observed that the word `vegetables must be construed neither in a technical sense nor from the botanical point of view, it should be understood as in common parlance. A word which is not defined in the Act but which is a word of every day use must be construed in its popular sense. In that case, this Court took the view that the word `vegetable should be understood as denoting the class of vegetables which are grown in kitchen garden or in a farm and are used for the tables. There can be no dispute that both chillies and lemons are grown in kitchen gardens or at any rate in farms and they are used for the tables. Mr. Mehta, appearing for the State of Orissa contended that in Orissa chillies and lemons are not used as articles of food. We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables.In that view it is not necessary for us to go into the question whether at any rate they are fruits, sales or purchases of which are exempt from sales tax.
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1
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2. The primary question for our consideration is whether chillies and lemons are vegetables as contemplated by the Orissa Sales Tax Act. The Orissa High Court in Dhadi Sahus case (supra) had taken the view that before an item can be considered as vegetable, it should be the principal item of food.It also examined the botanical meaning of that word. The view taken by that court is wholly wrong. This Court had occasion to consider the meaning of expression `vegetables in Ramavatar Budhaiprasad v. Asstt. Sales Tax Officer, Akola, (1961) 12 STC 286 = (AIR 1961 SC 1325 ). Therein this Court observed that the word `vegetables must be construed neither in a technical sense nor from the botanical point of view, it should be understood as in common parlance. A word which is not defined in the Act but which is a word of every day use must be construed in its popular sense. In that case, this Court took the view that the word `vegetable should be understood as denoting the class of vegetables which are grown in kitchen garden or in a farm and are used for the tables. There can be no dispute that both chillies and lemons are grown in kitchen gardens or at any rate in farms and they are used for the tables.Mr. Mehta, appearing for the State of Orissa contended that in Orissa chillies and lemons are not used as articles of food.We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables.In that view it is not necessary for us to go into the question whether at any rate they are fruits, sales or purchases of which are exempt from sales tax.
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Maharashtra State Electricity Distribution Company Ltd Vs. M/s. Datar Switchgear Limited & Others | the judgments.We find that the Arbitral Tribunal has dealt with this aspect and held that the contract objects were custom built in the following manner:“55. Respondents submitted that the Claimants did not make any efforts to mitigate the loss suffered. The submission is without any merit for more than one reason. In the first instance, the contract objects manufactured in pursuance of the orders of the Respondents were custom built i.e. to the specifications laid down by the Respondents and these contract objects cannot be disposed in open market. Datar deposed with reference to Exh. C 16 that efforts were made to sell the contract objects stranded in the factory to other Electricity Boards but those efforts did not succeed. It was contended by the Respondents that the claimants should have dismantled the stranded contract objects and sold the components thereof. The submission is only required to be slated to be rejected. Once an electronic instrument is dismantled, then the value almost becomes nil. In any event, the Claimants have established that efforts were made to mitigate the loss.”61) The learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate the loses.RE : WAIVER62) The argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by the appellant, in the following words:“18... It was then contended that the Claimants had waived the right to receive the lists of locations from the Respondents. By reference to clause 5.1 of the work order, it was submitted that the Claimants were to commence installation within four months from (a) the date of the work order; (b) opening of Letter of Credit and (c) on receipt of complete list of locations, whichever is later. It was contended that the Claimants were entitled to wait till all the lists were supplied to installation, but as the Claimants commenced installation even though the entire lists were not supplied, it should be concluded that the Claimants have waived their right. The submission is desperate and wholly unfair. The Respondents were in a hurry to complete the installation within a period of 20 months with an object to save the large amount lost due to loss of energy. Merely because the Claimants acted in a reasonable manner and did not insist upon the terms of the contract, it is absurd to suggest that the Claimants waived their right to complain about non-supply of lists of locations. It was then submitted that the Claimants had installed contract objects on the oral instructions and on the basis of chits issued by some of the Officers of the Respondents and that was contrary to the terms of the work order which provided that installation should be only on locations, the lists of which are given in accordance with the format at Annexure ‘E’ to the work order. It was also submitted that on 155 locations at Jalgaon, Dhule and Aurangabad, the lists were received by the Claimants from Authorities who were not competent to issue such lists. The submission has no merit because while undertaking such a huge project, the parties were not keen on strict compliance of each and every term and condition of the contract. Such an instance would have defeated the contract at once because the contract had to be carried out over a large area and with the interaction of large number of people. These factors cannot establish that the claimants have waived their right to complaint about the failure to supply lists of location...”63) Mr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide it afresh.RE: ORDER ON CHAMBER SUMMONS64) Three chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects. | 0[ds]41) We find adequate force in the aforesaid submission of Mr. Dada. Let us first take note of these findings:FINDINGS OF FACTS :42) Reasoning contained in the Award reveals following salient findings returned by the ArbitralThe appellant prevented respondent No.2 from performing the contract.(ii) Respondent No.2 was ready and willing to perform the contract all throughout.(iii) The appellant chose not to examine any of its Superintending Engineers who werefor giving DTC locations to respondent No.2 and, as found by the Arbitral Tribunal, they were the kingpins of each circle for performance of the contract.(iv) There is considerable merit in the submission of respondent No.2 that the Minutes of the Meeting dated 24.06.1998 is a fabricated document.(v) It is not possible to accede to the submission of the appellant that respondent No.2 had adequate lists of locations available and still failed to install the contract objects.(vi) It is obvious that there is something seriously wrong in the working of the appellant. Once a letter is listed in the affidavit of documents, it is surprising how the letter was not traceable. Be that as it may, the fact remains that prior to the date of termination of contract, at least in three Circles, the appellant had directed stoppage of installation work.(vii) It is unfortunate that the Head Office of the appellant lacked control over the field offices and which ultimately led to the failure of the project. It is futile to even suggest that the breach was not a fundamental one.(viii) Respondent No.2 was ready and willing to perform their part of the contract while the appellant committed a breach by failure to supply DTC locations as per the terms of the contract. (ix) Respondent No.2 invested Rs.163 crores in the project.(x) The appellant failed to prove that deductions effected in the Performance Certificates were proper.(xi) The appellant indulged in tampering the commissioning reports produced on record. The attempt does not behove to a statutory body and requires to be deprecated. The attempt made by the appellant by producing documents which are tampered with and which are not genuine indicates that the appellant was willing to go to any extent to make allegations against respondent No.2.(xii) The appellant did not make available large number of documents disclosed in the affidavit of documents on the ground that the same are not available.(xiii) Counter claim of the appellant is misconceived and is nothing short of counter blast to the claim made against respondent No.2.(xiv) It was the appellant and appellant alone who had committed fundamental breaches of the terms of the work order.(xv) The appellant has raised untenable and unsustainable defences which led to considerable delay in concluding the proceedings. These are findings of facts based upon the material evidence that emerged on the record of theCategorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as respondent No.2 is concerned, it was always ready and willing to perform its contractual obligations, but was prevented by the appellant from such performance. Another specific finding which is returned by the Arbitral Tribunal is that the appellant had not given the list of locations and, therefore, its submission that respondent No.2 had adequate lists of locations available but still failed to install the contract objects was not acceptable. In fact, on this count, the Arbitral Tribunal has commented upon the working of the appellant itself and expressed its dismay about lack of control by the Head Office of the appellant over the field offices which led to the failure of the contract. These are findings of facts which are arrived at by the Arbitral Tribunal after appreciating the evidence and documents on record. From these findings it stands established that there is a fundamental breach on the part of the appellant in carrying out its obligations, with no fault of respondent No.2 which had invested whooping amount of Rs.163 crores in the project. A perusal of the award reveals that the Tribunal investigated the conduct of entire transaction between the parties pertaining to the work order, including withholding of DTC locations, allegations and counter allegations by the parties concerning installed objects. The arbitrators did not focus on a particular breach qua particular number of objects/class of objects. Respondent No.2 is right in its submission that the fundamental breach, by its very nature, pervades the entire contract and once acted committed, the contract as a whole stands abrogated. It is on the aforesaid basis that the Arbitral Tribunal has come to the conclusion that the termination of contract by respondent No.2 was in order and valid. The proposition of law that the Arbitral Tribunal is the master of evidence and the findings of fact which are arrived at by the arbitrators on the basis of evidence on record are not to be scrutinised as if the Court was sitting in appeal now stands settled by catena of judgments pronounced by this Court without any exception thereto ((See – Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , and S. Munishamappa v. B. Venkatarayappa & Ors., (1981) 3 SCC 260 ).44) At this stage, we may deal with the contention of the appellant to the effect that the arbitrators have themselves recorded a finding that the LC was still in operation and had not expired and, therefore, the finding of the Tribunal that the contract was terminated validly was self contradictory.45) Though this contention appears to be attractive in the first blush, we find no substance in the same on deeper examination thereof. It was rightly contended by Mr. Dada that the Arbitral Tribunal has held that since the contract was terminated on 19.02.1999, the appellant was not required to renew the LC. In other words, since there was no contract in existence after 19.02.1999, there could not be aIt was argued that respondent No.2 should have installed objects at least under categoryeven if there was breach on the part of the appellant in supplying locations for categories3. This was refuted by learned senior counsel appearing for respondent No.2 on the round that the Arbitral Tribunal had specifically considered and rejected this argument and the approach of the arbitrators is even upheld by the learned Single Judge as well as the Division Bench of the HighWe agree with the contention of respondent No.2 that these are pure findings of facts and there is no perversity therein. It may, however, be pointed out that out of 12555category objects under the work order, 9515 objects were to be installed in Kolhapur Zone, i.e. 76% of the said category. Vide letter dated 14.07.1997, the Chief Engineer, Kolhapur Zone admittedly directed respondent No.2 to first complete new installation3) and only thereafter take up installation under categoryThe locations forfrom Kolhapur were admittedly never furnished. Therefore, this contention of the appellant also warrants a rejection.52) The award of the Arbitral Tribunal having been affirmed by the learned Single Judge as well as the Division Bench of the High Court, that too after dealing with each and every argument raised by the appellant in detail, which is negatived, we hold that Mr. Dada is correct in his argument that there is no question of law which is involved herein and the only attempt of the appellant was tothe matter afresh, which wasWe see substance in the contention of respondent No.2 and are of the opinion that the appellant cannot now turn around and raise objection to the award of damages which are measured having regard to the loss suffered by respondent No.2 in terms of lease rent for reasonable period for which it would have been entitled to otherwise.55) That apart, we also find that the Arbitral Tribunal, while awarding the damages, has relied upon the judgment of this Court in Union of India & Ors. v. Sugauli Sugar Works (P) Ltd. (1976) 3In the instant case, applying the aforesaid principle, the Arbitral Tribunal, for the purpose of classification, considered a 30% reduction in lease rent to compute damages for installed objects, 50% reduction in lease rent to compute damages for manufactured but uninstalled objects and the bare cost of raw materials for the objects not manufactured. No pendente lite interest was awarded, though the proceedings went on for five and a half years. Thus, the Arbitral Tribunal awarded almost the same amount as was invested by respondent No.2 for the project. Interest was awarded only @ 10% per annum from the date of the award as opposed to the prevailing bank rate of about 21%.The aforesaid being a reasonable and plausible measure adopted by the Arbitral Tribunal for awarding the damages, there is no question of interdicting with theIn the aforesaid backdrop, we agree with the approach of the High Court in spelling out the proposition of law that once it is established that the party was justified in terminating the contract on account of fundamental breach thereof, then the said innocent party is entitled to claim damages for the entire contract, i.e. for the part which is performed and also for the part of the contract which it was prevented fromWe, thus, do not find any infirmity in the manner in which damages are awarded in favour of respondentThe learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate theThe argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by theMr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide itThree chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects. | 0 | 17,344 | 2,174 | ### Instruction:
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the judgments.We find that the Arbitral Tribunal has dealt with this aspect and held that the contract objects were custom built in the following manner:“55. Respondents submitted that the Claimants did not make any efforts to mitigate the loss suffered. The submission is without any merit for more than one reason. In the first instance, the contract objects manufactured in pursuance of the orders of the Respondents were custom built i.e. to the specifications laid down by the Respondents and these contract objects cannot be disposed in open market. Datar deposed with reference to Exh. C 16 that efforts were made to sell the contract objects stranded in the factory to other Electricity Boards but those efforts did not succeed. It was contended by the Respondents that the claimants should have dismantled the stranded contract objects and sold the components thereof. The submission is only required to be slated to be rejected. Once an electronic instrument is dismantled, then the value almost becomes nil. In any event, the Claimants have established that efforts were made to mitigate the loss.”61) The learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate the loses.RE : WAIVER62) The argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by the appellant, in the following words:“18... It was then contended that the Claimants had waived the right to receive the lists of locations from the Respondents. By reference to clause 5.1 of the work order, it was submitted that the Claimants were to commence installation within four months from (a) the date of the work order; (b) opening of Letter of Credit and (c) on receipt of complete list of locations, whichever is later. It was contended that the Claimants were entitled to wait till all the lists were supplied to installation, but as the Claimants commenced installation even though the entire lists were not supplied, it should be concluded that the Claimants have waived their right. The submission is desperate and wholly unfair. The Respondents were in a hurry to complete the installation within a period of 20 months with an object to save the large amount lost due to loss of energy. Merely because the Claimants acted in a reasonable manner and did not insist upon the terms of the contract, it is absurd to suggest that the Claimants waived their right to complain about non-supply of lists of locations. It was then submitted that the Claimants had installed contract objects on the oral instructions and on the basis of chits issued by some of the Officers of the Respondents and that was contrary to the terms of the work order which provided that installation should be only on locations, the lists of which are given in accordance with the format at Annexure ‘E’ to the work order. It was also submitted that on 155 locations at Jalgaon, Dhule and Aurangabad, the lists were received by the Claimants from Authorities who were not competent to issue such lists. The submission has no merit because while undertaking such a huge project, the parties were not keen on strict compliance of each and every term and condition of the contract. Such an instance would have defeated the contract at once because the contract had to be carried out over a large area and with the interaction of large number of people. These factors cannot establish that the claimants have waived their right to complaint about the failure to supply lists of location...”63) Mr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide it afresh.RE: ORDER ON CHAMBER SUMMONS64) Three chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects.
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that respondent No.2 should have installed objects at least under categoryeven if there was breach on the part of the appellant in supplying locations for categories3. This was refuted by learned senior counsel appearing for respondent No.2 on the round that the Arbitral Tribunal had specifically considered and rejected this argument and the approach of the arbitrators is even upheld by the learned Single Judge as well as the Division Bench of the HighWe agree with the contention of respondent No.2 that these are pure findings of facts and there is no perversity therein. It may, however, be pointed out that out of 12555category objects under the work order, 9515 objects were to be installed in Kolhapur Zone, i.e. 76% of the said category. Vide letter dated 14.07.1997, the Chief Engineer, Kolhapur Zone admittedly directed respondent No.2 to first complete new installation3) and only thereafter take up installation under categoryThe locations forfrom Kolhapur were admittedly never furnished. Therefore, this contention of the appellant also warrants a rejection.52) The award of the Arbitral Tribunal having been affirmed by the learned Single Judge as well as the Division Bench of the High Court, that too after dealing with each and every argument raised by the appellant in detail, which is negatived, we hold that Mr. Dada is correct in his argument that there is no question of law which is involved herein and the only attempt of the appellant was tothe matter afresh, which wasWe see substance in the contention of respondent No.2 and are of the opinion that the appellant cannot now turn around and raise objection to the award of damages which are measured having regard to the loss suffered by respondent No.2 in terms of lease rent for reasonable period for which it would have been entitled to otherwise.55) That apart, we also find that the Arbitral Tribunal, while awarding the damages, has relied upon the judgment of this Court in Union of India & Ors. v. Sugauli Sugar Works (P) Ltd. (1976) 3In the instant case, applying the aforesaid principle, the Arbitral Tribunal, for the purpose of classification, considered a 30% reduction in lease rent to compute damages for installed objects, 50% reduction in lease rent to compute damages for manufactured but uninstalled objects and the bare cost of raw materials for the objects not manufactured. No pendente lite interest was awarded, though the proceedings went on for five and a half years. Thus, the Arbitral Tribunal awarded almost the same amount as was invested by respondent No.2 for the project. Interest was awarded only @ 10% per annum from the date of the award as opposed to the prevailing bank rate of about 21%.The aforesaid being a reasonable and plausible measure adopted by the Arbitral Tribunal for awarding the damages, there is no question of interdicting with theIn the aforesaid backdrop, we agree with the approach of the High Court in spelling out the proposition of law that once it is established that the party was justified in terminating the contract on account of fundamental breach thereof, then the said innocent party is entitled to claim damages for the entire contract, i.e. for the part which is performed and also for the part of the contract which it was prevented fromWe, thus, do not find any infirmity in the manner in which damages are awarded in favour of respondentThe learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate theThe argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by theMr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide itThree chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects.
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Messrs. Godrej & Company, Bombay Vs. Commissioner Of Income-Tax, Bombay | to be. Nor can this amount be said to have been paid as compensation for the cancellation or cessation of the managing agency of the assessee firm; for the managing agency continued and, therefore, the decision of the Judicial Committee of the Privy Council in Commr. of Income-tax v. Shaw Wallace and Co., 59 Ind App 206: (AIR 1932 PC 138 ) cannot be invoked. It is, however, urged that for the purpose of rendering the sum paid as compensation to be regarded as a capital receipt, it is not necessary that the entire managing agency should be acquired. If the amount was paid as the price for the sterilisation of even a part of a capital asset which is the framework or entire structure of the assessees profit making apparatus, then the amount must also be regarded as a capital receipt, for, as said by Lord Wrenbury in Glenboig Union Fireclay Co. Ltd. v. Commrs. of Inland Revenue, (1928) 12 Tax Cas 427, "what is true of the whole must be equally true of part"-a principle which has been adopted by this Court in Commr. of Income-tax, Hyderabad, Deccan v. Vazir Sultan and Sons, Civil Appeal No. 340 of 1957, D/- 20-3-1959: (AIR 1959 SC 814 ). The learned Attorney General however, contends that this case is not governed by the decisions in Shaw Wallaces case 59 Ind App 206: (AIR 1932 PC 138 (supra) or Vazir Sultan and Sons case, Civil Appeal No. 340 of 1957, D/- 20-3-1959: (AIR 1959 SC 814 ) (supra) because in the present case there was no acquisition of the entire managing agency business or sterilisation of any part of the capital asset and the business structure or the profit-making apparatus, namely, the managing agency, remains unaffected. There is no destruction or sterilisation of any part of the business structure. The amount in question was paid in consideration of the assessee firm agreeing to continue to serve as the managing agent on a reduced remuneration and, therefore, it bears the same character as that of remuneration and, therefore, a revenue receipt. We do not accept this contention. If this argument were correct, then, on a parity of reasoning, our decision in Vazir Sultan and sons case, Civil Appeal No. 340 of 1957, D/20-3-1959: (AIR 1959 SC 814 ) (supra) would have been different, for, there also the agency continued as before except that the territories were reduced to their original extent. In that case also the agent agreed to continue to serve with the extent of his field of activity limited to the State of Hyderabad only. To regard such an agreement as a mere variation in the terms of remuneration is only to take a superficial view of the matter and to ignore the effect of such variation on what has been called the profit making apparatus. A managing agency yielding a remuneration calculated at the rate of 20 per cent, of the profits is not the same thing as a managing agency yielding a remuneration calculated at 10% of the profits.There is a distinct deterioration in the character and quality of the managing agency viewed as a profit making apparatus and this deterioration is of an enduring kind. The reduced remuneration having been separately provided, the sum of Rs. 7,50,000 must be regarded as having been paid as compensation for this injury to or deterioration of the managing agency just as the amounts paid in Glenboigs case, (1928) 12 Tax Cas 427 or Vazir Sultans case, (AIR 1959 SC 814 ) (supra) were held to be.This case is also very nearly covered by the majority decision of the English House of Lords in Hunter v. Dewhurst, (1932) 16 Tax Cas 605. It is true that in the later English cases of Prendergast v. Cameron, (1940) 23 Tax Cas 122 an Wales v. Tilley, (1942) 25 Tax Cas 136, the decision in (1932) 16 Tax Cas 605 (supra) was distinguished as being of an exceptional and special nature but those later decisions turned on the words used in R. I of Sch. E to the English Act. Further, they were cases of continuation of personal service on reduced remuneration simplicitor and not of acquisition, wholly or in part, of any managing agency viewed as a profit making apparatus and consequently the effect of the agreements in question under which the payment was made upon the profit-making apparatus did not come under consideration at all. On a construction of the agreements it was held that the payment made were simply remuneration paid in advance representing the difference between the higher rate of remuneration and the reduced remuneration and as as such a revenue receipt. The question of the character of the payment made for compensation for the acquisition, wholly or in part, of any managing agency or injury to or deterioration of the managing agency, as a profit making apparatus is covered by our decisions hereinbefore referred to. In the light of those decisions the sum of Rs. 7,50,000 was paid and received not to make up the difference between the higher remuneration and the reduced remuneration but was in reality paid and received as compensation for releasing the company from the onerous terms as to remuneration as it was in terms expressed to be. In other words, so far as the managed company was concerned, it was paid for securing immunity from the liability to pay higher remuneration to the assessee firm for the rest of the term of the managing agency and, therefore, a capital expenditure and so far as the assessee firm was concerned, it was received as compensation for the deterioration or injury to the managing agency by reason of the release of its rights to get higher remuneration and, therefore, a capital receipt within the decisions of this Court in the earlier cases referred to above.9. In the light of the above discussion it follows, therefore, that the answer to the referred question should be in the negative. | 1[ds]It is, therefore, necessary to approach the problem keeping in view the particular facts and circumstances in which it hasis true, as said by the High Court and as reiterated by the learned Attorney General, that the language used in the document is not decisive and the question has to be determined by a consideration of all the attending circumstances; nevertheless, the language cannot be ignored altogether but must be taken into consideration along with other relevant circumstances.8. This sum of Rs. 7,50,000 has undoubtedly not been paid as compensation for the termination or cancellation of an ordinary business contract which is a part of the dock-in-trade of the assessee and cannot, therefore, be regarded as income, as the amounts received by the assessee in 1956 SCR 223: ( (S) AIR 1956 SC 492 ) (supra) and in Commr. of Income-tax, Nagpur v. Jairam Valji, 1959-35 ITR 148 : (AIR 1959 SC 291 ) had been held to be. Nor can this amount be said to have been paid as compensation for the cancellation or cessation of the managing agency of the assessee firm; for the managing agency continued and, therefore, the decision of the Judicial Committee of the Privy Council in Commr. of Income-tax v. Shaw Wallace and Co., 59 Ind App 206: (AIR 1932 PC 138 ) cannot bethe light of those decisions the sum of Rs. 7,50,000 was paid and received not to make up the difference between the higher remuneration and the reduced remuneration but was in reality paid and received as compensation for releasing the company from the onerous terms as to remuneration as it was in terms expressed to be. In other words, so far as the managed company was concerned, it was paid for securing immunity from the liability to pay higher remuneration to the assessee firm for the rest of the term of the managing agency and, therefore, a capital expenditure and so far as the assessee firm was concerned, it was received as compensation for the deterioration or injury to the managing agency by reason of the release of its rights to get higher remuneration and, therefore, a capital receipt within the decisions of this Court in the earlier cases referred to above.9. In the light of the above discussion it follows, therefore, that the answer to the referred question should be in the negative. | 1 | 3,402 | 442 | ### Instruction:
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to be. Nor can this amount be said to have been paid as compensation for the cancellation or cessation of the managing agency of the assessee firm; for the managing agency continued and, therefore, the decision of the Judicial Committee of the Privy Council in Commr. of Income-tax v. Shaw Wallace and Co., 59 Ind App 206: (AIR 1932 PC 138 ) cannot be invoked. It is, however, urged that for the purpose of rendering the sum paid as compensation to be regarded as a capital receipt, it is not necessary that the entire managing agency should be acquired. If the amount was paid as the price for the sterilisation of even a part of a capital asset which is the framework or entire structure of the assessees profit making apparatus, then the amount must also be regarded as a capital receipt, for, as said by Lord Wrenbury in Glenboig Union Fireclay Co. Ltd. v. Commrs. of Inland Revenue, (1928) 12 Tax Cas 427, "what is true of the whole must be equally true of part"-a principle which has been adopted by this Court in Commr. of Income-tax, Hyderabad, Deccan v. Vazir Sultan and Sons, Civil Appeal No. 340 of 1957, D/- 20-3-1959: (AIR 1959 SC 814 ). The learned Attorney General however, contends that this case is not governed by the decisions in Shaw Wallaces case 59 Ind App 206: (AIR 1932 PC 138 (supra) or Vazir Sultan and Sons case, Civil Appeal No. 340 of 1957, D/- 20-3-1959: (AIR 1959 SC 814 ) (supra) because in the present case there was no acquisition of the entire managing agency business or sterilisation of any part of the capital asset and the business structure or the profit-making apparatus, namely, the managing agency, remains unaffected. There is no destruction or sterilisation of any part of the business structure. The amount in question was paid in consideration of the assessee firm agreeing to continue to serve as the managing agent on a reduced remuneration and, therefore, it bears the same character as that of remuneration and, therefore, a revenue receipt. We do not accept this contention. If this argument were correct, then, on a parity of reasoning, our decision in Vazir Sultan and sons case, Civil Appeal No. 340 of 1957, D/20-3-1959: (AIR 1959 SC 814 ) (supra) would have been different, for, there also the agency continued as before except that the territories were reduced to their original extent. In that case also the agent agreed to continue to serve with the extent of his field of activity limited to the State of Hyderabad only. To regard such an agreement as a mere variation in the terms of remuneration is only to take a superficial view of the matter and to ignore the effect of such variation on what has been called the profit making apparatus. A managing agency yielding a remuneration calculated at the rate of 20 per cent, of the profits is not the same thing as a managing agency yielding a remuneration calculated at 10% of the profits.There is a distinct deterioration in the character and quality of the managing agency viewed as a profit making apparatus and this deterioration is of an enduring kind. The reduced remuneration having been separately provided, the sum of Rs. 7,50,000 must be regarded as having been paid as compensation for this injury to or deterioration of the managing agency just as the amounts paid in Glenboigs case, (1928) 12 Tax Cas 427 or Vazir Sultans case, (AIR 1959 SC 814 ) (supra) were held to be.This case is also very nearly covered by the majority decision of the English House of Lords in Hunter v. Dewhurst, (1932) 16 Tax Cas 605. It is true that in the later English cases of Prendergast v. Cameron, (1940) 23 Tax Cas 122 an Wales v. Tilley, (1942) 25 Tax Cas 136, the decision in (1932) 16 Tax Cas 605 (supra) was distinguished as being of an exceptional and special nature but those later decisions turned on the words used in R. I of Sch. E to the English Act. Further, they were cases of continuation of personal service on reduced remuneration simplicitor and not of acquisition, wholly or in part, of any managing agency viewed as a profit making apparatus and consequently the effect of the agreements in question under which the payment was made upon the profit-making apparatus did not come under consideration at all. On a construction of the agreements it was held that the payment made were simply remuneration paid in advance representing the difference between the higher rate of remuneration and the reduced remuneration and as as such a revenue receipt. The question of the character of the payment made for compensation for the acquisition, wholly or in part, of any managing agency or injury to or deterioration of the managing agency, as a profit making apparatus is covered by our decisions hereinbefore referred to. In the light of those decisions the sum of Rs. 7,50,000 was paid and received not to make up the difference between the higher remuneration and the reduced remuneration but was in reality paid and received as compensation for releasing the company from the onerous terms as to remuneration as it was in terms expressed to be. In other words, so far as the managed company was concerned, it was paid for securing immunity from the liability to pay higher remuneration to the assessee firm for the rest of the term of the managing agency and, therefore, a capital expenditure and so far as the assessee firm was concerned, it was received as compensation for the deterioration or injury to the managing agency by reason of the release of its rights to get higher remuneration and, therefore, a capital receipt within the decisions of this Court in the earlier cases referred to above.9. In the light of the above discussion it follows, therefore, that the answer to the referred question should be in the negative.
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It is, therefore, necessary to approach the problem keeping in view the particular facts and circumstances in which it hasis true, as said by the High Court and as reiterated by the learned Attorney General, that the language used in the document is not decisive and the question has to be determined by a consideration of all the attending circumstances; nevertheless, the language cannot be ignored altogether but must be taken into consideration along with other relevant circumstances.8. This sum of Rs. 7,50,000 has undoubtedly not been paid as compensation for the termination or cancellation of an ordinary business contract which is a part of the dock-in-trade of the assessee and cannot, therefore, be regarded as income, as the amounts received by the assessee in 1956 SCR 223: ( (S) AIR 1956 SC 492 ) (supra) and in Commr. of Income-tax, Nagpur v. Jairam Valji, 1959-35 ITR 148 : (AIR 1959 SC 291 ) had been held to be. Nor can this amount be said to have been paid as compensation for the cancellation or cessation of the managing agency of the assessee firm; for the managing agency continued and, therefore, the decision of the Judicial Committee of the Privy Council in Commr. of Income-tax v. Shaw Wallace and Co., 59 Ind App 206: (AIR 1932 PC 138 ) cannot bethe light of those decisions the sum of Rs. 7,50,000 was paid and received not to make up the difference between the higher remuneration and the reduced remuneration but was in reality paid and received as compensation for releasing the company from the onerous terms as to remuneration as it was in terms expressed to be. In other words, so far as the managed company was concerned, it was paid for securing immunity from the liability to pay higher remuneration to the assessee firm for the rest of the term of the managing agency and, therefore, a capital expenditure and so far as the assessee firm was concerned, it was received as compensation for the deterioration or injury to the managing agency by reason of the release of its rights to get higher remuneration and, therefore, a capital receipt within the decisions of this Court in the earlier cases referred to above.9. In the light of the above discussion it follows, therefore, that the answer to the referred question should be in the negative.
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M/S ALAGU PHARMACY Vs. N MAGUDESWARI | be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree- sheet....”24. As the tenant did not surrender possession of the properties within the time mentioned in the compromise memo, the landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi Statute. This contention was accepted by the execution court, as well as by the High Court. This Court, after a reference to the 5 (1970) 3 SCC 181 provisions of Section 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other of the grounds mentioned in the section is established. This Court, further observed:“From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.”13. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others 6 it was stated:-“17. It will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant Sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds, is inherent in the public policy built into the statute (Bombay Rent Act). 6 (1974) 1 SCC 242 18. In Rasiklal Chunilal case, a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is no express provision in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem.19. Construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do. ….22. The mere fact that Order 23 Rule 3, of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act. ….27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”14. The common thread that runs through the aforesaid pronouncements of this Court is – in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. Moreover, the invalidity on that count can even be raised in execution. In the present case, the order dated 28.03.2014 did not remotely note that any particular ground under the Rent Act was made out. | 1[ds]10. The order passed by the appellate court shows that compromisewas brought about on 29.01.2014 that is even before the eviction petition was filed by the respondent. Further, said compromisewas addressed to the Inspector of Police, City Crime Branch. The appellate court had further observed that complaintand compromise Exh.P11 were not disputed by the respondent and no document in rebuttal was filed. The complaintproceeds on a premise that the lease deed dated 22.02.2012 was a forged document and there was no relationship ofbetween the parties. Yet an eviction petition was filed, seeking eviction of the appellants under the concerned Rent Act. There is an inherent contradiction in the stand adopted by the Respondent. In the circumstances, the assertion made by the appellants that pressure was exerted through the police and they were compelled to enter into compromise is prima facie acceptable. In Ajad Singh v. Chatra and Others, compromise recorded in Police Station inter alia was not found to be acceptable by this Court and the matter was remanded. It wasappellate court ought to have taken note of the fact that the said compromise was recorded in the Police Station and during the pendency of theis true that there was a delay of 604 days in filing the appeal, but in cases where there is reasonable doubt that police may have forced a party to enter into compromise, the process of Court ought to weigh in favour of a party who alleges to be victim of such pressure. It may be pertinent to note that the order passed by the High Court does not even deal with this aspect nor was any submission made that the assessment made by the appellate court was in any way incorrect or imperfect.11. Further, eviction petition was filed seeking eviction of the appellants under Section 10(2)(ii)(a), 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Said Sections are as under: (paraA landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied……. (ii) that the tenant has after the 23rd October 1945 without the written consent of the landlord(a) transferred his right under the lease or sublet the entire building or any portion thereof, if the lease does not confer on him any right to do so, or ….. .…. (3) ……. (c) A landlord who is occupying only a part of a building, whether residential ormay, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.The eviction in terms of the aforesaid provisions can be ordered only if the concerned Rent Controller or Court is satisfied that the ground seeking eviction is made out. It has been held by this Court that unless and until ground seeking eviction in terms of the concerned Rent Act is not made out, no eviction of a tenant can be ordered, even if the parties had entered into a compromise. For example, in K.K. Chari v. R.M. Seshadrithis Court considered its earlier decisions in three cases asThere are three decisions of this Court which require to be considered. In Bahadur Singh v. Muni Subrat Dassa decree for eviction passed on the basis of a compromise between the parties, was held, by this Court, to be a nullity as contravening Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952. The facts therein were astenant and the son of the landlord referred the disputes between them to arbitration. The landlord was not a party to this agreement. The arbitrators passed an award whereunder the tenant was to give vacant possession of the premises in favour of the landlord within a particular time. This award was made a decree of court. The landlord, who was neither a party to the award nor to the proceedings, which resulted in the award being made a decree of court, applied for eviction of the tenant on the basis of the award. The tenant resisted execution by raising various objections under Section 47 of the Code of Civil Procedure. One of the objections was that the decree for eviction based upon the award was a nullity as being opposed to the Delhi and Ajmer Rent Control Act, 1952. This Court held that the decree directing the tenant to deliver possession of the premises to the landlord was a nullity, as it was passed in contravention of Section 13(1) of the relevant statute. After quoting thethis Court further held that the decree for eviction passed according to an award, in a proceeding to which the landlord was not a party and without the court satisfying itself that a statutory ground of eviction existed, was a nullity and cannot be enforced in execution. It will be seen from this decision that the decree was held to be a nullity because the landlord was not a party thereto, and also because the court had not satisfied itself that a ground for eviction, as required by the statute, existed. This decision is certainly an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord. How exactly that satisfaction is to be expressed by the court or gathered from the materials, has not been laid down in this decision, as this court was not faced with such a problem.In Kaushalya Devi v. Shri K.L. Bansal 4 the question again rose under the same Delhi statute regarding the validity of a decree passed for eviction on compromise. The plaintiff therein filed a suit for eviction of the tenant on two grounds— (a) the premises were required for their own use; and (b)the tenant had committed default in payment of rent.22. The tenant filed a written statement denying both these allegations. He disputed the claim of the landlord regarding his requiring the premises for his own use bona fide and also the fact of his being in arrears. When the pleadings of the landlord and the tenant were in this state, both parties filed a compromise memo in and by which they agreed to the passing of a decree of eviction against the tenant. Representations to the same effect were also made by the counsel for both parties. The court passed the followingview of the statement of thecounsel and the written compromise, a decree is passed in favour of the plaintiff against thetenant did not vacate the premises within the time mentioned as per the compromise memo. On the other hand, 4 (1969) 1 SCC 59 he filed an application under Section 47 of the Civil Procedure Code pleading that the decree is void as being in contravention of Section 13 of the Delhi statute. The High Court held that the decree was a nullity, as the order was passed solely on the basis of the compromise without indicating that any of the statutory grounds mentioned in Section 13 existed. Following the decision in Bahadur Singh this Court upheld the order of the High Court. Here again, it will be seen that the manner in which thesatisfaction is to be expressed or gathered has not been dealt with.23. A similar question came up again before this Court in Ferozi Lal Jain v. Man Mal 5 . The landlord filed an application for eviction of the tenant on the ground that he had sublet the premises without obtaining his consent in writing. Subletting, without the consent of the landlord in writing, was one of the grounds, under Section 13(1) of the Delhi statute entitling a landlord to ask for eviction. The tenant denied the allegation that he had sublet the premises. Both the landlord and the tenant entered into a compromise and the court, after recording the same, passed the followingAs the tenant did not surrender possession of the properties within the time mentioned in the compromise memo, the landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi Statute. This contention was accepted by the execution court, as well as by the High Court. This Court, after a reference to the 5 (1970) 3 SCC 181 provisions of Section 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other of the grounds mentioned in the section is established. This Court, furtherthe facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others 6 it wasIt will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant Sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds, is inherent in the public policy built into the statute (Bombay Rent Act). 6 (1974) 1 SCC 242 18. In Rasiklal Chunilal case, a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is no express provision in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem.19. Construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do. ….22. The mere fact that Order 23 Rule 3, of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act. ….27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.The common thread that runs through the aforesaid pronouncements of this Court is – in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. Moreover, the invalidity on that count can even be raised in execution. In the present case, the order dated 28.03.2014 did not remotely note that any particular ground under the Rent Act was made out. | 1 | 4,553 | 2,563 | ### Instruction:
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be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree- sheet....”24. As the tenant did not surrender possession of the properties within the time mentioned in the compromise memo, the landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi Statute. This contention was accepted by the execution court, as well as by the High Court. This Court, after a reference to the 5 (1970) 3 SCC 181 provisions of Section 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other of the grounds mentioned in the section is established. This Court, further observed:“From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.”13. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others 6 it was stated:-“17. It will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant Sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds, is inherent in the public policy built into the statute (Bombay Rent Act). 6 (1974) 1 SCC 242 18. In Rasiklal Chunilal case, a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is no express provision in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem.19. Construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do. ….22. The mere fact that Order 23 Rule 3, of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act. ….27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”14. The common thread that runs through the aforesaid pronouncements of this Court is – in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. Moreover, the invalidity on that count can even be raised in execution. In the present case, the order dated 28.03.2014 did not remotely note that any particular ground under the Rent Act was made out.
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he had sublet the premises. Both the landlord and the tenant entered into a compromise and the court, after recording the same, passed the followingAs the tenant did not surrender possession of the properties within the time mentioned in the compromise memo, the landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi Statute. This contention was accepted by the execution court, as well as by the High Court. This Court, after a reference to the 5 (1970) 3 SCC 181 provisions of Section 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other of the grounds mentioned in the section is established. This Court, furtherthe facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others 6 it wasIt will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant Sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds, is inherent in the public policy built into the statute (Bombay Rent Act). 6 (1974) 1 SCC 242 18. In Rasiklal Chunilal case, a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is no express provision in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem.19. Construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do. ….22. The mere fact that Order 23 Rule 3, of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act. ….27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.The common thread that runs through the aforesaid pronouncements of this Court is – in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise. Moreover, the invalidity on that count can even be raised in execution. In the present case, the order dated 28.03.2014 did not remotely note that any particular ground under the Rent Act was made out.
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TATA POWER COMPANY LTD Vs. ADANI ELECTRICITY MUMBAI LTD | the cost of standby that was applicable in January 1998 i.e., Rs.24.75 crore per month, from its consumers through its tariff, viz. fixed charges and energy charges. This aspect has been dealt with in detail subsequently in this Order. Now, depending on the ratio of sharing of the standby cost determined by the Commission, the consumers of TPC and BSES will have to pay the cost applicable to their respective licensees, in the manner decided by the Commission. *** *** *** 225. The Commission is, however, of the view that the issue of whether the ratio should be applicable on the entire standby component or only on the incremental portion above Rs.24.75 crore, and the recovery of the same from the consumers, is a matter of tariff, which is within the Commissions jurisdiction as held by several Courts, including the High Court judgment on the appeal filed by TPC and BSES on the Commissions Order in the matter of sharing of standby charges. *** *** *** 237. While determining the Annual Revenue Requirement (ARR) of TPC in the separate case before it, the Commission is considering all the payments to be made to or by the respective Parties and the interest and delayed payment charges, and is restating the Clear Profit of BSES and TPC to reflect the true picture, in line with the Commissions decision on the issue of sharing of standby charges. This is being done from FY 1998-99, as the dispute arose during that year. The Commission has drawn from the available reserves and surpluses, wherever required, to ensure that TPC and BSES get their due Reasonable Return on a year-on-year basis, in line with the provisions of Schedule VI. Having ensured that the Clear Profit matches the Reasonable Return on a year-on-year basis, there is no requirement for any additional recovery of any amount from the Parties. The Utilities have to draw from their reserves, as would be elaborated by the Commission, to make the payments as directed by it. *** *** *** 239. Para 26 of the Supreme Court ruling states, inter alia, that After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future bills. 240. The Commission is of the view that interest should be recovered from all parties to the dispute for the amounts paid short vis-à-vis the actual payments due from each party, in accordance with the Commissions computations. The Commission believes that this approach is equitable to all the Parties concerned, and is appropriate in the light of the issues and circumstances of this matter which has been under dispute for such a long time. Hence, the Commission has computed the interest payable by BSES to TPC for delayed payments in FY 1998-99 and FY 1999-00, and the interest payable by TPC to BSES on the excess amounts deposited by aBSES with TPC for onward payment to MSEB. The Commission has considered the fact that the interest rate on delayed payments to MSEB is 18% for overdue over 6 months. However, in this instance, the payment liabilities as between TPC and BSES have been crystallized only now through this Order of the Commission. Moreover, the deposits made by BSES earlier were consequent to Court Orders and were not regular payments. Hence, taking into account the prevailing market interest rates (SBI PLR) in each of these years, the net (simple) interest payable by BSES works out to Rs.8.37 crore, as shown in the table below, which can be adjusted against the refund due to BSES from TPC. 31. The MERC directed sharing of standby charges payable to MSEB between TPC and BSES/REL on the basis of their respective peak load requirements and directed TPC to pay to BSES/REL a sum of Rs.315.30 crores within 15 days. It was also observed that the quantum of standby capacity is related to the larger unit size of the generation in either system. We have no hesitation to accept the majority opinion that standby facility provided by TPC was out of its own generating capacity and 90 percent of the times energy has been drawn by BSES/REL from TPC. Thus, there is no justification for TPC to claim 50:50 percent sharing of the standby charges in the facts of this case on consideration of various factors the decision has been reached. 32. It appears that there was no stay on the order passed by the APTEL by this Court. The plea of non-implementation of the order taken by TPC is not understandable. It was only the bank guarantee which was submitted by TPC, in addition, to deposit of a sum of Rs.227 crores with the Registrar General of this Court. The implementation of the order of the APTEL would mean that the determination made by it has been acted upon and corresponding liability factored into tariff has been passed on the customers and actual consumers and realised from them since there was no such interim stay on implementation of the order. We find force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out. 33. There is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors as noted above. 34. It may be relevant to mention here that I.A. No.59365 of 2019 and I.A. No. 59356 of 2019 have been filed for substitution of name of Reliance Energy Limited with the agreement of learned counsel for the parties, the name of Adani Electricity Mumbai Limited is substituted as respondent and as appellant in C.A. No. 415/2007 and C.A. No.3229/2007 respectively. | 0[ds]27. The main principles on the basis of which Agreement was to be reached between TPC and BSES/REL were settled. As per clause 2 of the Principles of Agreement, BSES/REL had to pay to TPC for 220 KV interconnection at Borivali at Rs.3.5 crores per month. The parties had agreed to cooperate in order to ensure that Government order dated 19.1.1998 is implemented in the spirit of it. A detailed power supply agreement was to be entered into by 21.4.1998. The agreement could not be executed as consensus with respect to several aspects could not be reached. The order dated 22.3.2000 has been set aside by the High Court, which order was not interfered with by this Court and the case was remitted for the decision to MERC, which is an expert body. The power was conferred upon the MERC vide notification dated 27.10.2000 under the provision of Section 22(2)(n) of Electricity Regulatory Commission Act, 1998, to adjudicate upon the disputes and differences between licensees and utilities. On 4.12.2000, BSES/REL had filed an application to MERC in respect of sharing of standby charges between BSES/REL and TPC. The prayers were made to regulate action and standby charges levied by them and to fix and determine the standby charges payable by them28. Ultimately, the APTEL by the impugned orders has decided the matter. The Chairman has held that liability to be in proportion of 2:1 tariff, whereas Judicial Member has concurred with the Technical Member when Technical Member differed with the opinion of Chairman, but the fact remains that MERC, as well as the APTEL, concurrently have not accepted the case of the TPC that standby charges should be borne in ratio of 50:50. The decisions of MERC, as well as the Technical and Judicial Members, are found to be correct while terming ratio as 23:77 with respect to BSES/REL and TPC respectively29. In view of the aforesaid facts and circumstances of the case and, in particular, several factors were required to be taken into consideration, on that basis aforesaid figure has been worked out. It has also been considered that electricity used to be purchased by BSES/REL from TPC to the aforesaid extent and the standby charges used to be realised which were factored in the tariff, which liability was ultimately passed on to the retail consumers. Even when the Principles of Agreement have been reached as to standby charges though it was subject to revision basis was fixed which could not have been departed from, it was on consideration of several aspects. The ratio had been appropriately worked out in the most equitable manner by applying the level playing field. Considering the standby charges of Rs.24.75 crores recovered by MSEB from TPC with effect fro 1.10.1996 and as per the Government order and Principles of Agreement Rs.3.5 crores was additionally being available and a difference of standby which was made to increase the liability Rs.24.75 crore per month to Rs.30.25 crores per month. Thus, the decision of the Technical and Judicial Members is found to be appropriate and reasonable while working out the percentage of the standby charges to be paid by BSES/REL to TPC for the period in question31. The MERC directed sharing of standby charges payable to MSEB between TPC and BSES/REL on the basis of their respective peak load requirements and directed TPC to pay to BSES/REL a sum of Rs.315.30 crores within 15 days. It was also observed that the quantum of standby capacity is related to the larger unit size of the generation in either system. We have no hesitation to accept the majority opinion that standby facility provided by TPC was out of its own generating capacity and 90 percent of the times energy has been drawn by BSES/REL from TPC. Thus, there is no justification for TPC to claim 50:50 percent sharing of the standby charges in the facts of this case on consideration of various factors the decision has been reached32. It appears that there was no stay on the order passed by the APTEL by this Court. The plea of non-implementation of the order taken by TPC is not understandable. It was only the bank guarantee which was submitted by TPC, in addition, to deposit of a sum of Rs.227 crores with the Registrar General of this Court. The implementation of the order of the APTEL would mean that the determination made by it has been acted upon and corresponding liability factored into tariff has been passed on the customers and actual consumers and realised from them since there was no such interim stay on implementation of the order. We find force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out33. There is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors as noted above34. It may be relevant to mention here that I.A. No.59365 of 2019 and I.A. No. 59356 of 2019 have been filed for substitution of name of Reliance Energy Limited with the agreement of learned counsel for the parties, the name of Adani Electricity Mumbai Limited is substituted as respondent and as appellant in C.A. No. 415/2007 and C.A. No.3229/2007 respectively. | 0 | 9,286 | 990 | ### Instruction:
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the cost of standby that was applicable in January 1998 i.e., Rs.24.75 crore per month, from its consumers through its tariff, viz. fixed charges and energy charges. This aspect has been dealt with in detail subsequently in this Order. Now, depending on the ratio of sharing of the standby cost determined by the Commission, the consumers of TPC and BSES will have to pay the cost applicable to their respective licensees, in the manner decided by the Commission. *** *** *** 225. The Commission is, however, of the view that the issue of whether the ratio should be applicable on the entire standby component or only on the incremental portion above Rs.24.75 crore, and the recovery of the same from the consumers, is a matter of tariff, which is within the Commissions jurisdiction as held by several Courts, including the High Court judgment on the appeal filed by TPC and BSES on the Commissions Order in the matter of sharing of standby charges. *** *** *** 237. While determining the Annual Revenue Requirement (ARR) of TPC in the separate case before it, the Commission is considering all the payments to be made to or by the respective Parties and the interest and delayed payment charges, and is restating the Clear Profit of BSES and TPC to reflect the true picture, in line with the Commissions decision on the issue of sharing of standby charges. This is being done from FY 1998-99, as the dispute arose during that year. The Commission has drawn from the available reserves and surpluses, wherever required, to ensure that TPC and BSES get their due Reasonable Return on a year-on-year basis, in line with the provisions of Schedule VI. Having ensured that the Clear Profit matches the Reasonable Return on a year-on-year basis, there is no requirement for any additional recovery of any amount from the Parties. The Utilities have to draw from their reserves, as would be elaborated by the Commission, to make the payments as directed by it. *** *** *** 239. Para 26 of the Supreme Court ruling states, inter alia, that After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future bills. 240. The Commission is of the view that interest should be recovered from all parties to the dispute for the amounts paid short vis-à-vis the actual payments due from each party, in accordance with the Commissions computations. The Commission believes that this approach is equitable to all the Parties concerned, and is appropriate in the light of the issues and circumstances of this matter which has been under dispute for such a long time. Hence, the Commission has computed the interest payable by BSES to TPC for delayed payments in FY 1998-99 and FY 1999-00, and the interest payable by TPC to BSES on the excess amounts deposited by aBSES with TPC for onward payment to MSEB. The Commission has considered the fact that the interest rate on delayed payments to MSEB is 18% for overdue over 6 months. However, in this instance, the payment liabilities as between TPC and BSES have been crystallized only now through this Order of the Commission. Moreover, the deposits made by BSES earlier were consequent to Court Orders and were not regular payments. Hence, taking into account the prevailing market interest rates (SBI PLR) in each of these years, the net (simple) interest payable by BSES works out to Rs.8.37 crore, as shown in the table below, which can be adjusted against the refund due to BSES from TPC. 31. The MERC directed sharing of standby charges payable to MSEB between TPC and BSES/REL on the basis of their respective peak load requirements and directed TPC to pay to BSES/REL a sum of Rs.315.30 crores within 15 days. It was also observed that the quantum of standby capacity is related to the larger unit size of the generation in either system. We have no hesitation to accept the majority opinion that standby facility provided by TPC was out of its own generating capacity and 90 percent of the times energy has been drawn by BSES/REL from TPC. Thus, there is no justification for TPC to claim 50:50 percent sharing of the standby charges in the facts of this case on consideration of various factors the decision has been reached. 32. It appears that there was no stay on the order passed by the APTEL by this Court. The plea of non-implementation of the order taken by TPC is not understandable. It was only the bank guarantee which was submitted by TPC, in addition, to deposit of a sum of Rs.227 crores with the Registrar General of this Court. The implementation of the order of the APTEL would mean that the determination made by it has been acted upon and corresponding liability factored into tariff has been passed on the customers and actual consumers and realised from them since there was no such interim stay on implementation of the order. We find force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out. 33. There is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors as noted above. 34. It may be relevant to mention here that I.A. No.59365 of 2019 and I.A. No. 59356 of 2019 have been filed for substitution of name of Reliance Energy Limited with the agreement of learned counsel for the parties, the name of Adani Electricity Mumbai Limited is substituted as respondent and as appellant in C.A. No. 415/2007 and C.A. No.3229/2007 respectively.
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27. The main principles on the basis of which Agreement was to be reached between TPC and BSES/REL were settled. As per clause 2 of the Principles of Agreement, BSES/REL had to pay to TPC for 220 KV interconnection at Borivali at Rs.3.5 crores per month. The parties had agreed to cooperate in order to ensure that Government order dated 19.1.1998 is implemented in the spirit of it. A detailed power supply agreement was to be entered into by 21.4.1998. The agreement could not be executed as consensus with respect to several aspects could not be reached. The order dated 22.3.2000 has been set aside by the High Court, which order was not interfered with by this Court and the case was remitted for the decision to MERC, which is an expert body. The power was conferred upon the MERC vide notification dated 27.10.2000 under the provision of Section 22(2)(n) of Electricity Regulatory Commission Act, 1998, to adjudicate upon the disputes and differences between licensees and utilities. On 4.12.2000, BSES/REL had filed an application to MERC in respect of sharing of standby charges between BSES/REL and TPC. The prayers were made to regulate action and standby charges levied by them and to fix and determine the standby charges payable by them28. Ultimately, the APTEL by the impugned orders has decided the matter. The Chairman has held that liability to be in proportion of 2:1 tariff, whereas Judicial Member has concurred with the Technical Member when Technical Member differed with the opinion of Chairman, but the fact remains that MERC, as well as the APTEL, concurrently have not accepted the case of the TPC that standby charges should be borne in ratio of 50:50. The decisions of MERC, as well as the Technical and Judicial Members, are found to be correct while terming ratio as 23:77 with respect to BSES/REL and TPC respectively29. In view of the aforesaid facts and circumstances of the case and, in particular, several factors were required to be taken into consideration, on that basis aforesaid figure has been worked out. It has also been considered that electricity used to be purchased by BSES/REL from TPC to the aforesaid extent and the standby charges used to be realised which were factored in the tariff, which liability was ultimately passed on to the retail consumers. Even when the Principles of Agreement have been reached as to standby charges though it was subject to revision basis was fixed which could not have been departed from, it was on consideration of several aspects. The ratio had been appropriately worked out in the most equitable manner by applying the level playing field. Considering the standby charges of Rs.24.75 crores recovered by MSEB from TPC with effect fro 1.10.1996 and as per the Government order and Principles of Agreement Rs.3.5 crores was additionally being available and a difference of standby which was made to increase the liability Rs.24.75 crore per month to Rs.30.25 crores per month. Thus, the decision of the Technical and Judicial Members is found to be appropriate and reasonable while working out the percentage of the standby charges to be paid by BSES/REL to TPC for the period in question31. The MERC directed sharing of standby charges payable to MSEB between TPC and BSES/REL on the basis of their respective peak load requirements and directed TPC to pay to BSES/REL a sum of Rs.315.30 crores within 15 days. It was also observed that the quantum of standby capacity is related to the larger unit size of the generation in either system. We have no hesitation to accept the majority opinion that standby facility provided by TPC was out of its own generating capacity and 90 percent of the times energy has been drawn by BSES/REL from TPC. Thus, there is no justification for TPC to claim 50:50 percent sharing of the standby charges in the facts of this case on consideration of various factors the decision has been reached32. It appears that there was no stay on the order passed by the APTEL by this Court. The plea of non-implementation of the order taken by TPC is not understandable. It was only the bank guarantee which was submitted by TPC, in addition, to deposit of a sum of Rs.227 crores with the Registrar General of this Court. The implementation of the order of the APTEL would mean that the determination made by it has been acted upon and corresponding liability factored into tariff has been passed on the customers and actual consumers and realised from them since there was no such interim stay on implementation of the order. We find force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out33. There is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors as noted above34. It may be relevant to mention here that I.A. No.59365 of 2019 and I.A. No. 59356 of 2019 have been filed for substitution of name of Reliance Energy Limited with the agreement of learned counsel for the parties, the name of Adani Electricity Mumbai Limited is substituted as respondent and as appellant in C.A. No. 415/2007 and C.A. No.3229/2007 respectively.
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SMRITI MADAN KANSAGRA Vs. PERRY KANSAGRA | our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court. 11. Insofar as the matter mentioned at placitum a is concerned, it is submitted by Mr. Divan, learned Senior Advocate that the Family Court and the High Court had granted certain reliefs to the appellant even while granting custody to the respondent. A comparative chart of the directions issued by the High Court and those in the Judgment has also been presented as under:- table 12. It is submitted that the entitlement of the appellant in terms of the order issued by the High Court was not under challenge before this Court. Neither any substantive appeal was filed by the respondent nor any cross objections were preferred and, as such, said entitlement could not be reduced or whittled down. It is submitted that the appellant was entitled in terms of the directions of the High Court, to have the temporary custody of Aditya throughout the winter and summer vacations. But, that entitlement is now reduced to only 50% of one of the vacations. 13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose. 14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya. 15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected. 16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date. 17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected. Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission. With regard to placitum c, the matter will be dealt with separately hereafter With regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for. 18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years. | 1[ds]7. We will deal with the matter mentioned at placitum a under the first segment after having dealt with other aspects under said segment.(i) With regard to the matter at placitum b, the learned counsel for the respondent has fairly accepted the suggestion.(ii) With regard to the matter at placitum c, as against 10 minutes a day, what has been granted is one hour over the week end. Thus, as against 70 minutes in a week, what has been granted is 60 minutes over the weekends which will be sufficiently long and a comprehensive interaction. It has also been directed that the child will be at liberty to speak to his mother, as and when he desires to do so. Therefore, in our view, the directions issued by this Court with regard to this issue do not call for any modification.Though, we accept the submission made by the learned counsel for the respondent, it is hereby clarified that paragraph 3 of the undertaking given by respondent dated 02.03.2020 to the High Court shall continue to be operative, in addition to the undertaking given to this Court.(iv) In the context of the matter mentioned against placitum e, it must be stated that this Court did not deem it appropriate to bind the paternal grandmother of Aditya, because of the various other directions issued in the Judgment, including the one requiring the respondent to obtain a Mirror Order.The High Court had not insisted upon furnishing of any Mirror Order and, therefore, the direction to have the affidavit of the grandmother who is an Indian citizen, was issued. However, the direction to obtain a Mirror Order was taken to be sufficient security by this Court, to take care of any apprehension that the respondent may not fulfil the obligations cast upon him by the Judgment.10. Having considered the rival submissions, in our view, the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court.13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose.14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya.15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected.16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date.17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected.Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission.With regard to placitum c, the matter will be dealt with separately hereafterWith regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for.18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years. | 1 | 4,902 | 1,356 | ### 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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our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court. 11. Insofar as the matter mentioned at placitum a is concerned, it is submitted by Mr. Divan, learned Senior Advocate that the Family Court and the High Court had granted certain reliefs to the appellant even while granting custody to the respondent. A comparative chart of the directions issued by the High Court and those in the Judgment has also been presented as under:- table 12. It is submitted that the entitlement of the appellant in terms of the order issued by the High Court was not under challenge before this Court. Neither any substantive appeal was filed by the respondent nor any cross objections were preferred and, as such, said entitlement could not be reduced or whittled down. It is submitted that the appellant was entitled in terms of the directions of the High Court, to have the temporary custody of Aditya throughout the winter and summer vacations. But, that entitlement is now reduced to only 50% of one of the vacations. 13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose. 14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya. 15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected. 16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date. 17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected. Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission. With regard to placitum c, the matter will be dealt with separately hereafter With regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for. 18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years.
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respondent to obtain a Mirror Order.The High Court had not insisted upon furnishing of any Mirror Order and, therefore, the direction to have the affidavit of the grandmother who is an Indian citizen, was issued. However, the direction to obtain a Mirror Order was taken to be sufficient security by this Court, to take care of any apprehension that the respondent may not fulfil the obligations cast upon him by the Judgment.10. Having considered the rival submissions, in our view, the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court.13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose.14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya.15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected.16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date.17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected.Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission.With regard to placitum c, the matter will be dealt with separately hereafterWith regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for.18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years.
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Pensioners' Assn.,Ex-Assam Oil.Offic&Ors Vs. Union Of India | no bearing on the merits of the present case since in that case the controversy was raised by those who were working on the appointed day as employees of the Assam Oil Company Limited and were taken over as the employees of the Indian Oil Corporation but had retired thereafter before December, 1994. That is to say the benefit of the revised formula of computation of the pension under the 1995 scheme was available to only those who had retired after December, 1994. It is submitted that no question relating to retirees prior to 14.10.1981 was involved in that decision. Therefore, deletion of the part of the scheme providing for those who were "retired from December, 1994 onwards" will cover only those employees who may have retired after the appointed day and before December, 1994. In the first place it may be indicated that the argument as advanced makes no difference on the merits as the embargo placed on availability of pensionary benefits according to the revised formula on the basis of the date of retirement has been removed. That is to say broadly the benefit of the revised formula would be available to those who had retired even prior to December, 1994. In absence of any such provision providing for application of the revised formula to those who "retired from December, 1994 onwards", the 1995 formula would be applicable to all members of the Scheme of 1983 irrespective of date of their retirement. It is the case of the respondents also that the revised formula of 1995 would be applicable to those who are members of the Scheme of 1983. We have already found that pensioners under the 1973 scheme would also become members of the 1983 scheme as per the provisions of the scheme of 1983 itself. We also notice that the submissions have been advanced on behalf of the respondents against the facts averred and narration made in the pension scheme of 1983. The entitlement of the petitioners for pensionary benefits according to the revised formula is in consonance with the facts and the provisions of Section 6 (1) and Section 12 (3) and (4) of the Act and the Pension Scheme of 1983. Any other interpretation would be against the facts and the meaning and the spirit of these provisions. 9. Respondents have placed reliance upon a decision reported in (1909) 8 SCC p. 30, V.Kasturi Vs. M.D. State Bank of India & Anr., to contend that an amendment enhancing the pension or providing for a new formula of computation of pension would not be applicable to the earlier retirees unless such provision is expressly made applicable to them. We, however, find that the above noted decision would be of no help to the respondents case since what has been held is that if a person is already getting pensionary benefits and an amendment is effected for upward increase in pension, such a retiree would be entitled for the enhanced benefit and the same could not be denied for the reason that he had already retired before the change came into effect. Certainly those who were not entitled for pension at all, could not be included in the fold of the pensioners to whom enhancement of pensionary benefit would be applicable. That is to say such benefit would be available to existing pensioners and not to those who were not entitled to pension at all nor they were getting the same. Besides the above, we have already found that the petitioners have been members of the scheme of pension of 1973 framed by their erstwhile employer Assam Oil Company Ltd. under which they had been getting their pension according to the rules framed to administer the pension fund. That is to say they were the members of the existing pension fund at the time of taking over of the undertaking by the central government. Pension fund also stood transferred and vested in the central government/successor company as would be evident from the averments made in the scheme framed in the year 1983. We have already discussed in detail how the pensioners of the specified company also became members of the scheme of 1983 which was made effective from 14.10.1981. There is no denial of the fact that the petitioners were still being paid their pensionary benefits. In such facts and circumstances the petitioners would be entitled for the benefit of the new formula introduced in 1995, rather that benefit could not be denied to the petitioners in the igh of the decision in the case of Kasturi (supra). Even according to the respondents the benefit of the new formula was available to those who were members of the 1983 scheme. Reliance placed on another decision of this Court reported in (1998) 6 SCC p. 328, Hariram Gupta Vs. State of U.P. would also not be applicable to the facts of the case in hand. It is not the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of any cut-off date excluding them or due to financial constraints of the like reasons. On the other hand, the case of the respondents is that the petitioners had no concern whatsoever with the successor company since they had retired prior to the appointed date; there was no pension fund for them nor the successor company had to do anything with their pensionary benefits since it was a case where annuities were purchased in their name from the LIC, therefore, it was a matter between the petitioners and the LIC. In view of the provisions of law which have been discussed in the earlier part of the judgment as well as factual position, the stand taken by the respondents is not sustainable. The petitioners were beneficiaries of the 1973 pension scheme and had also become the members of the 1983 scheme which made them entitled for the benefit of formula for revision of pension made effective from 1995. | 1[ds]The respondents submit that the Indian Oil Corporation (AOD) Staff Pension Funds Scheme, 1983 was not meant for the retires who had retired earlier as employees of the Assam Oil Company Ltd., viz. those who had never become the employees of the Indian Oil Corporation. Therefore, they were not the beneficiaries of the Scheme of 1963. The Annuity based benefit as in vogue prior to the taking over of the company, under the scheme of 1973, it continues and the petitioners are entitled to pensionary banefits based on annuity purchased on their behalf. It is further sought to be impressed that it was a kind of an arrangement between those employees in whose names annuities were purchased and the LIC. There was no pensionary fund or any other monies for the benefit of the retired employees covered under the Scheme of 1973. Thus the employees who had already retired before the appointed day could have no link with the successor company which had taken over after the retirement of the petitioners. In so far the employees who were in service of the Assam Oil Company Ltd. on the appointed day of taking over, a new Scheme was promulgated for them in the year 1983 creating a trust for the pensionary benefit of such employees. The retirees ofday are neither covered not have any concern with the scheme of 1983 and that being the position there is no occasion for them to take any benefit of the revision of pension inreading of the above provision makes it clear that the Central Government or the successor company cannot claim to have totally snapped all its connections with the retired employees of the oil companies on the company being taken over, as it would be clear from the later part of Section 6(1) that the liabilities of the Central Government or the successor company would include all borrowings, liability of payment of taxes if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India namely, the specified company i.e. the Assam Oil Company Limited. Thus, the liability of pension or pensionary benefits of the employees of the specified companies (Assam Oil Company Limited) cannot be said off in the manner tried to be done and canvassed by the respondents before us. The liabilities in relation to pension and pensionary benefits of the employees of the specified companies (Assam Oil Company Limited) are also very much taken over by the Central Government, or the successor company. We have already quoted Section 12 of the Act. To lay emphasis on(3) of Section 12 we would like to highlight that the Central Government or successor company after the appointed day shall constitute one or more trusts respect of the monies and other assets which are transferred or vested in government of the successor company having objects similar to the existing trust without prejudice to the existing rights of the beneficiaries of the trust.It is, therefore, clear from the scheme of 1973 that it has been framed by the then employers for the pensionary benefits of its employees. All details about entitlement,mode and manner of payment and different claims in different circumstances are all provided for in the rules framed under the Scheme. Pension could be reduced or stopped in terms of the scheme. In Certain eventualities the amount could even be forfeited to the fund. The manner in which the pension is to be calculated is also detailed in the rules. Therefore, to say that the pensionary benefit was an arrangement between the employee and the LIC, may not be correct. The erstwhile employer, namely the Assam Oil Company Ltd., did not act merely as a mediator in facilitating purchase of annuity for the employees. The scheme provided the manner in which the pensionary fund was to be raised and the manner in which it was to be disbursed and paid as pension. It provided all other details by which the objective to provide pensionary benefits to its employees was sought to be achieved. By no means it can be said that it was a matter exclusively between the employee and the LIC and nothing beyondis thus clear from what has been quoted above that the Pension Scheme 1983, has been framed and promulgated in pursuance of(3) of Section 12 of the Act and it is in respect of employees who were working and taken over as employees of the successor company with effect from the appointed day as well as those who were in receipt of pension or other pensionary benefits. It further mentions that the existing fund stood transferred and vested in Corporation with effect from 14th October, 1981 free from any trust constituted by the Assam Oil Company Limited in respect thereof. The fund as existed on the appointed day stood transferred and vested in the Central Government/successor company. We have already seen that the fund which was existing on that date, as constituted under the Scheme of 1973 was for the pensionary benefits of employees in service or retired before 14.10.1981. As per requirement of law under Section 12(3) of the Act, the objects of the 1983 Scheme are similar to the objects of the existing fund namely, the fund o 1973. The pension fund 1983 has been made effective from 14.10.1981. The fund then existing as constituted by the Assam Oil Company Limited stood transferred and vested in the successor company on the own showing of the respondents. It is totally incorrect to say that there existed no fund for pensionary benefits of the petitioners viz. retired employees of the Assam Oil Company Limited or that it did not vest in the successor company. The Trust Deed of 1983 does not talk of any partial transfer and vesting of the existing fund. further examination of the scheme shows that the working of the staff pension Fund Rules of Indian Oil Corporation Limited (AOD) is similar to the scheme of 1973 and the rules framed thereunder. The term transferred employee has been defined under rule 2(i) providing that the word transferred employee means an employee of the Assam Oil Company Limited who was on or before the appointed day a member of the existing fund and in respect of whom the money is lying to the credit in existing fund stood transferred or vested in the Corporation under Section 12(1) of the Act. The petitioners were undoubtedly the members of the existing fund namely, the fund created under the Scheme of 1973 for pensionary benefits of the employees of the company and which fund was existing on the appointed day. Therefore, under the definition of transferred employee the pensioners receiving pensionary benefit from the existing fund as on 14.10.1981 shall also be treated as transferred employees for the purposes of the Scheme of 1983 and further in the definition of the term member an employee of the Corporation includes a transferred employee. A perusal of the further details of the working of the Scheme of 1983 also shows that it functions in the same manner as did the 1973 Scheme i.e. by purchasing annuity from the LIC. Almost all the conditions are similar to that of the earlier scheme. The petitioners who have been the pensioner members of the 1973 Scheme on the appointed day cannot be deprived of the pensionary benefits of the corporation being very much the members of the scheme of 1983. That being the position the benefit of revised pension scheme of 1995 could not be denied tois not the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of anydate excluding them or due to financial constraints of the like reasons. On the other hand, the case of the respondents is that the petitioners had no concern whatsoever with the successor company since they had retired prior to the appointed date; there was no pension fund for them nor the successor company had to do anything with their pensionary benefits since it was a case where annuities were purchased in their name from the LIC, therefore, it was a matter between the petitioners and the LIC. In view of the provisions of law which have been discussed in the earlier part of the judgment as well as factual position, the stand taken by the respondents is not sustainable. The petitioners were beneficiaries of the 1973 pension scheme and had also become the members of the 1983 scheme which made them entitled for the benefit of formula for revision of pension made effective from 1995. | 1 | 5,549 | 1,550 | ### Instruction:
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no bearing on the merits of the present case since in that case the controversy was raised by those who were working on the appointed day as employees of the Assam Oil Company Limited and were taken over as the employees of the Indian Oil Corporation but had retired thereafter before December, 1994. That is to say the benefit of the revised formula of computation of the pension under the 1995 scheme was available to only those who had retired after December, 1994. It is submitted that no question relating to retirees prior to 14.10.1981 was involved in that decision. Therefore, deletion of the part of the scheme providing for those who were "retired from December, 1994 onwards" will cover only those employees who may have retired after the appointed day and before December, 1994. In the first place it may be indicated that the argument as advanced makes no difference on the merits as the embargo placed on availability of pensionary benefits according to the revised formula on the basis of the date of retirement has been removed. That is to say broadly the benefit of the revised formula would be available to those who had retired even prior to December, 1994. In absence of any such provision providing for application of the revised formula to those who "retired from December, 1994 onwards", the 1995 formula would be applicable to all members of the Scheme of 1983 irrespective of date of their retirement. It is the case of the respondents also that the revised formula of 1995 would be applicable to those who are members of the Scheme of 1983. We have already found that pensioners under the 1973 scheme would also become members of the 1983 scheme as per the provisions of the scheme of 1983 itself. We also notice that the submissions have been advanced on behalf of the respondents against the facts averred and narration made in the pension scheme of 1983. The entitlement of the petitioners for pensionary benefits according to the revised formula is in consonance with the facts and the provisions of Section 6 (1) and Section 12 (3) and (4) of the Act and the Pension Scheme of 1983. Any other interpretation would be against the facts and the meaning and the spirit of these provisions. 9. Respondents have placed reliance upon a decision reported in (1909) 8 SCC p. 30, V.Kasturi Vs. M.D. State Bank of India & Anr., to contend that an amendment enhancing the pension or providing for a new formula of computation of pension would not be applicable to the earlier retirees unless such provision is expressly made applicable to them. We, however, find that the above noted decision would be of no help to the respondents case since what has been held is that if a person is already getting pensionary benefits and an amendment is effected for upward increase in pension, such a retiree would be entitled for the enhanced benefit and the same could not be denied for the reason that he had already retired before the change came into effect. Certainly those who were not entitled for pension at all, could not be included in the fold of the pensioners to whom enhancement of pensionary benefit would be applicable. That is to say such benefit would be available to existing pensioners and not to those who were not entitled to pension at all nor they were getting the same. Besides the above, we have already found that the petitioners have been members of the scheme of pension of 1973 framed by their erstwhile employer Assam Oil Company Ltd. under which they had been getting their pension according to the rules framed to administer the pension fund. That is to say they were the members of the existing pension fund at the time of taking over of the undertaking by the central government. Pension fund also stood transferred and vested in the central government/successor company as would be evident from the averments made in the scheme framed in the year 1983. We have already discussed in detail how the pensioners of the specified company also became members of the scheme of 1983 which was made effective from 14.10.1981. There is no denial of the fact that the petitioners were still being paid their pensionary benefits. In such facts and circumstances the petitioners would be entitled for the benefit of the new formula introduced in 1995, rather that benefit could not be denied to the petitioners in the igh of the decision in the case of Kasturi (supra). Even according to the respondents the benefit of the new formula was available to those who were members of the 1983 scheme. Reliance placed on another decision of this Court reported in (1998) 6 SCC p. 328, Hariram Gupta Vs. State of U.P. would also not be applicable to the facts of the case in hand. It is not the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of any cut-off date excluding them or due to financial constraints of the like reasons. On the other hand, the case of the respondents is that the petitioners had no concern whatsoever with the successor company since they had retired prior to the appointed date; there was no pension fund for them nor the successor company had to do anything with their pensionary benefits since it was a case where annuities were purchased in their name from the LIC, therefore, it was a matter between the petitioners and the LIC. In view of the provisions of law which have been discussed in the earlier part of the judgment as well as factual position, the stand taken by the respondents is not sustainable. The petitioners were beneficiaries of the 1973 pension scheme and had also become the members of the 1983 scheme which made them entitled for the benefit of formula for revision of pension made effective from 1995.
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### Explanation:
we would like to highlight that the Central Government or successor company after the appointed day shall constitute one or more trusts respect of the monies and other assets which are transferred or vested in government of the successor company having objects similar to the existing trust without prejudice to the existing rights of the beneficiaries of the trust.It is, therefore, clear from the scheme of 1973 that it has been framed by the then employers for the pensionary benefits of its employees. All details about entitlement,mode and manner of payment and different claims in different circumstances are all provided for in the rules framed under the Scheme. Pension could be reduced or stopped in terms of the scheme. In Certain eventualities the amount could even be forfeited to the fund. The manner in which the pension is to be calculated is also detailed in the rules. Therefore, to say that the pensionary benefit was an arrangement between the employee and the LIC, may not be correct. The erstwhile employer, namely the Assam Oil Company Ltd., did not act merely as a mediator in facilitating purchase of annuity for the employees. The scheme provided the manner in which the pensionary fund was to be raised and the manner in which it was to be disbursed and paid as pension. It provided all other details by which the objective to provide pensionary benefits to its employees was sought to be achieved. By no means it can be said that it was a matter exclusively between the employee and the LIC and nothing beyondis thus clear from what has been quoted above that the Pension Scheme 1983, has been framed and promulgated in pursuance of(3) of Section 12 of the Act and it is in respect of employees who were working and taken over as employees of the successor company with effect from the appointed day as well as those who were in receipt of pension or other pensionary benefits. It further mentions that the existing fund stood transferred and vested in Corporation with effect from 14th October, 1981 free from any trust constituted by the Assam Oil Company Limited in respect thereof. The fund as existed on the appointed day stood transferred and vested in the Central Government/successor company. We have already seen that the fund which was existing on that date, as constituted under the Scheme of 1973 was for the pensionary benefits of employees in service or retired before 14.10.1981. As per requirement of law under Section 12(3) of the Act, the objects of the 1983 Scheme are similar to the objects of the existing fund namely, the fund o 1973. The pension fund 1983 has been made effective from 14.10.1981. The fund then existing as constituted by the Assam Oil Company Limited stood transferred and vested in the successor company on the own showing of the respondents. It is totally incorrect to say that there existed no fund for pensionary benefits of the petitioners viz. retired employees of the Assam Oil Company Limited or that it did not vest in the successor company. The Trust Deed of 1983 does not talk of any partial transfer and vesting of the existing fund. further examination of the scheme shows that the working of the staff pension Fund Rules of Indian Oil Corporation Limited (AOD) is similar to the scheme of 1973 and the rules framed thereunder. The term transferred employee has been defined under rule 2(i) providing that the word transferred employee means an employee of the Assam Oil Company Limited who was on or before the appointed day a member of the existing fund and in respect of whom the money is lying to the credit in existing fund stood transferred or vested in the Corporation under Section 12(1) of the Act. The petitioners were undoubtedly the members of the existing fund namely, the fund created under the Scheme of 1973 for pensionary benefits of the employees of the company and which fund was existing on the appointed day. Therefore, under the definition of transferred employee the pensioners receiving pensionary benefit from the existing fund as on 14.10.1981 shall also be treated as transferred employees for the purposes of the Scheme of 1983 and further in the definition of the term member an employee of the Corporation includes a transferred employee. A perusal of the further details of the working of the Scheme of 1983 also shows that it functions in the same manner as did the 1973 Scheme i.e. by purchasing annuity from the LIC. Almost all the conditions are similar to that of the earlier scheme. The petitioners who have been the pensioner members of the 1973 Scheme on the appointed day cannot be deprived of the pensionary benefits of the corporation being very much the members of the scheme of 1983. That being the position the benefit of revised pension scheme of 1995 could not be denied tois not the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of anydate excluding them or due to financial constraints of the like reasons. On the other hand, the case of the respondents is that the petitioners had no concern whatsoever with the successor company since they had retired prior to the appointed date; there was no pension fund for them nor the successor company had to do anything with their pensionary benefits since it was a case where annuities were purchased in their name from the LIC, therefore, it was a matter between the petitioners and the LIC. In view of the provisions of law which have been discussed in the earlier part of the judgment as well as factual position, the stand taken by the respondents is not sustainable. The petitioners were beneficiaries of the 1973 pension scheme and had also become the members of the 1983 scheme which made them entitled for the benefit of formula for revision of pension made effective from 1995.
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Ajay Pandit @ Jagdish Dayabhai Patel&Anr Vs. State Of Maharashtra | effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction….Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases” 29. Again in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220 ; this Court held as follows: “The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.” 30. Later, in Allauddin Mian & ors. v. State of Bihar; (1989) 3 SCC 5 , this Court also considered the effect of non-compliance of Section 235(2) Cr.P.C. and held that the provision is mandatory. The operative portion of the judgment reads as follows: “The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.” 31. Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held as follows: “On finding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.” 32. This Court in a recent judgment in Rajesh Kumar (supra) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expression “hearing the accused” under Section 235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. 33. In our view, the principles laid down in the above cited judgments squarely applies on the question of awarding of sentence and we find from the records that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of the show-cause-notice. What was the nature of show cause notice? The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) Cr.P.C. | 1[ds]33. In our view, the principles laid down in the above cited judgments squarely applies on the question of awarding of sentence and we find from the records that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of theWhat was the nature of show cause notice? The nature of thewas whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) Cr.P.C.In Santa Singh (supra), this Court has extensively dealt with the nature and scope of Section 235(2) Cr.P.C. stating that such a provision was introduced in consonance with the modern trends in penology and sentencing procedures. The Court noticed today more than ever before, sentencing has become a delicate task, requiring anapproach and calling for skills and talents very much different from those ordinarily expected of lawyers. In Santa Singh, (supra) the Court found that the requirements of Section 235(2) were not complied with, inasmuch as no opportunity was given to the appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him. The Court noticed in that case the Sessions Court chose to inflict death sentence on the accused and the possibility could not be ruled out that if the accused had been given an opportunity to produce material and make submissions on the question of sentence, as contemplated by Section 235(2), he might have been in a position to persuade the Sessions Court to impose a lesser penalty of life imprisonment. The Court, therefore, held the breach of the mandatory requirement of Section 235(2) could not, in the circumstances, be ignored as inconsequential and it can vitiate the sentence of death imposed by the Sessions Court. The Court, therefore, allowed the appeal and set aside the sentence of death and remanded the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the accused to be heard. Further, in Santa Singh, the Court also held ashearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.The above issue again came up before this Court in Dagdu & ors. v. State of Maharashtra; (1977) 3 SCC 68 ; wherein the three Judges Bench, referring to the judgment in Santa Singh, held asCourt on convicting an accused must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that court to remedy the breach by giving a hearing to the accused on the question offurther held asa proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction….Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal ofAgain in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220 ; this Court held asobligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.Later, in Allauddin Mian & ors. v. State of Bihar; (1989) 3 SCC 5 , this Court also considered the effect ofof Section 235(2) Cr.P.C. and held that the provision is mandatory. The operative portion of the judgment reads asrequirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced(2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held asfinding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.This Court in a recent judgment in Rajesh Kumar (supra) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expressionunder Section 235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. | 1 | 6,756 | 1,550 | ### Instruction:
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effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction….Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases” 29. Again in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220 ; this Court held as follows: “The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.” 30. Later, in Allauddin Mian & ors. v. State of Bihar; (1989) 3 SCC 5 , this Court also considered the effect of non-compliance of Section 235(2) Cr.P.C. and held that the provision is mandatory. The operative portion of the judgment reads as follows: “The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.” 31. Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held as follows: “On finding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.” 32. This Court in a recent judgment in Rajesh Kumar (supra) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expression “hearing the accused” under Section 235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. 33. In our view, the principles laid down in the above cited judgments squarely applies on the question of awarding of sentence and we find from the records that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of the show-cause-notice. What was the nature of show cause notice? The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) Cr.P.C.
### Response:
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### Explanation:
inflict death sentence on the accused and the possibility could not be ruled out that if the accused had been given an opportunity to produce material and make submissions on the question of sentence, as contemplated by Section 235(2), he might have been in a position to persuade the Sessions Court to impose a lesser penalty of life imprisonment. The Court, therefore, held the breach of the mandatory requirement of Section 235(2) could not, in the circumstances, be ignored as inconsequential and it can vitiate the sentence of death imposed by the Sessions Court. The Court, therefore, allowed the appeal and set aside the sentence of death and remanded the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the accused to be heard. Further, in Santa Singh, the Court also held ashearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.The above issue again came up before this Court in Dagdu & ors. v. State of Maharashtra; (1977) 3 SCC 68 ; wherein the three Judges Bench, referring to the judgment in Santa Singh, held asCourt on convicting an accused must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that court to remedy the breach by giving a hearing to the accused on the question offurther held asa proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction….Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal ofAgain in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220 ; this Court held asobligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.Later, in Allauddin Mian & ors. v. State of Bihar; (1989) 3 SCC 5 , this Court also considered the effect ofof Section 235(2) Cr.P.C. and held that the provision is mandatory. The operative portion of the judgment reads asrequirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced(2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held asfinding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.This Court in a recent judgment in Rajesh Kumar (supra) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expressionunder Section 235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence.
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Manik & Another Vs. State of Maharashtra | the deceased.21. Dr.Raut (PW5) states that he found the following five external injuries on the body of the deceased Babasaheb, which were antemortem.i) CLW infraorbital right eye (laterally), having size 2 cm. x 1 cm bony deep.ii) CLW right zygomatic area, having size 2 cm. x 1 cm. bony deep.iii) CLW right temporal region, having size 3 cm. x 2 cm. depressed fracture.iv) CLW occipital area having size 2 cm x 1 cm. bony deep.v) Contusion at right clavicle lateral end, having size 3 cm. x 3 cm.He states that the probable cause of death of the deceased Babasaheb was due to head injury. Accordingly, he prepared the memorandum of post mortem (Exh.36). It has come in his cross-examination that if a person falls into a well, the abovereferred injuries found on the body of the deceased Babasaheb, as mentioned in column no.17 of the memorandum (Exh.36) of post mortem, are possible.22. It has come in the evidence of Baban (PW-1) (Exh.27), that the police prepared panchanama (Exh.28) in respect of the well, where the dead body of the deceased Babasaheb was found lying. The work of digging and construction of the said well was in progress, as seen from the contents of the spot panchanama (Exh.28). The informant as well as Vijubai (PW-3) admit that there was no parapet wall around the mouth of that well. The construction material was lying near the said well. As stated above, the A.D. report was lodged, wherein, it has been specifically mentioned that the deceased Babasaheb was in the habit of consuming liquor and he might have fallen into the said well under the influence of liquor. If these circumstances, coupled with the medical evidence is considered, the possibility of the deceased Babasaheb falling into the well accidentally cannot be ruled out.23. Indisputably, the informant visited the spot of the incident i.e. the well where the dead body of Babasaheb was lying, on 17-03-2004 at about 09.00 a.m. along with his son-in-law namely Ashok Tilak. It has come in the cross-examination of A.P.I. Citikar (PW6)( Exh.39) and A.P.I. Mane (PW7)( Exh.41) who conducted the investigation into the present crime, that A.D. No.04/2004 was registered in respect of the deceased Babasaheb on the ground that he had fallen down into the well under the influence of liquor and died. The prosecution has withheld the evidence of Ashok Tilak, who had lodged the A.D. Report, on the basis of which A.D.NO.04/2004 was registered. Any way, the informant was very much with Ashok Tilak at that time, however, the informant did not raise any suspicion against anybody behind the death of Babasaheb at that time or even when the police visited the spot of the incident for conducting inquiry in respect of A.D. No.04/2004 on that day. It is only on 28-03-2004 that the informant went to Police Station Chaklamba and lodged report (Exh.31) against the appellants alleging that they committed murder of the deceased Babasaheb. There is absolutely no explanation given by the informant for the delay in lodging the F.I.R. (Exh.31).24. In the present case, the evidence of the informant and Vijubai (PW-3) in respect of the last seen together, as stated above, is not at all believable. Moreover, no motive has been attributed and established by the informant, Vijubai (PW-3) and Tatyaram (PW-4) in their evidence against the appellants for causing the death of Babasaheb. The facts and circumstances of the case as well as the medical evidence show the possibility of the deceased Babasaheb falling down into the well accidentally and suffering injuries, to which he succumbed. There is unexplained delay of about 3 days in lodging the F.I.R., which is fatal to the prosecution in view of the judgment in the case of Ramaiah alias Rama Vs. State of Karnataka, AIR 2014 SC 3388 , cited by the learned counsel for the appellants.25. There is absolutely no evidence coming either through the informant or Vijubai (PW-3) or Tatyaram (PW-4) attributing any motive on the part of the appellants to commit the murder of the deceased Babasaheb.26. The learned Assistant Public Prosecutor cited the case of Om Prakash v. State of Uttaranchal, (2003)1 SCC 648 , wherein, after considering various incriminating circumstances connecting the accused, he was held guilty for the offence punishable under Section 302 of the I.P.C. It was observed that correctness of conviction cannot be touched on the touchstone of lack of motive when evidence establishes beyond reasonable doubt the guilt of the accused. No such circumstances are established against the present appellants. Therefore, the said ruling would be of no help to the prosecution.27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside. | 1[ds]27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside. | 1 | 4,344 | 258 | ### Instruction:
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the deceased.21. Dr.Raut (PW5) states that he found the following five external injuries on the body of the deceased Babasaheb, which were antemortem.i) CLW infraorbital right eye (laterally), having size 2 cm. x 1 cm bony deep.ii) CLW right zygomatic area, having size 2 cm. x 1 cm. bony deep.iii) CLW right temporal region, having size 3 cm. x 2 cm. depressed fracture.iv) CLW occipital area having size 2 cm x 1 cm. bony deep.v) Contusion at right clavicle lateral end, having size 3 cm. x 3 cm.He states that the probable cause of death of the deceased Babasaheb was due to head injury. Accordingly, he prepared the memorandum of post mortem (Exh.36). It has come in his cross-examination that if a person falls into a well, the abovereferred injuries found on the body of the deceased Babasaheb, as mentioned in column no.17 of the memorandum (Exh.36) of post mortem, are possible.22. It has come in the evidence of Baban (PW-1) (Exh.27), that the police prepared panchanama (Exh.28) in respect of the well, where the dead body of the deceased Babasaheb was found lying. The work of digging and construction of the said well was in progress, as seen from the contents of the spot panchanama (Exh.28). The informant as well as Vijubai (PW-3) admit that there was no parapet wall around the mouth of that well. The construction material was lying near the said well. As stated above, the A.D. report was lodged, wherein, it has been specifically mentioned that the deceased Babasaheb was in the habit of consuming liquor and he might have fallen into the said well under the influence of liquor. If these circumstances, coupled with the medical evidence is considered, the possibility of the deceased Babasaheb falling into the well accidentally cannot be ruled out.23. Indisputably, the informant visited the spot of the incident i.e. the well where the dead body of Babasaheb was lying, on 17-03-2004 at about 09.00 a.m. along with his son-in-law namely Ashok Tilak. It has come in the cross-examination of A.P.I. Citikar (PW6)( Exh.39) and A.P.I. Mane (PW7)( Exh.41) who conducted the investigation into the present crime, that A.D. No.04/2004 was registered in respect of the deceased Babasaheb on the ground that he had fallen down into the well under the influence of liquor and died. The prosecution has withheld the evidence of Ashok Tilak, who had lodged the A.D. Report, on the basis of which A.D.NO.04/2004 was registered. Any way, the informant was very much with Ashok Tilak at that time, however, the informant did not raise any suspicion against anybody behind the death of Babasaheb at that time or even when the police visited the spot of the incident for conducting inquiry in respect of A.D. No.04/2004 on that day. It is only on 28-03-2004 that the informant went to Police Station Chaklamba and lodged report (Exh.31) against the appellants alleging that they committed murder of the deceased Babasaheb. There is absolutely no explanation given by the informant for the delay in lodging the F.I.R. (Exh.31).24. In the present case, the evidence of the informant and Vijubai (PW-3) in respect of the last seen together, as stated above, is not at all believable. Moreover, no motive has been attributed and established by the informant, Vijubai (PW-3) and Tatyaram (PW-4) in their evidence against the appellants for causing the death of Babasaheb. The facts and circumstances of the case as well as the medical evidence show the possibility of the deceased Babasaheb falling down into the well accidentally and suffering injuries, to which he succumbed. There is unexplained delay of about 3 days in lodging the F.I.R., which is fatal to the prosecution in view of the judgment in the case of Ramaiah alias Rama Vs. State of Karnataka, AIR 2014 SC 3388 , cited by the learned counsel for the appellants.25. There is absolutely no evidence coming either through the informant or Vijubai (PW-3) or Tatyaram (PW-4) attributing any motive on the part of the appellants to commit the murder of the deceased Babasaheb.26. The learned Assistant Public Prosecutor cited the case of Om Prakash v. State of Uttaranchal, (2003)1 SCC 648 , wherein, after considering various incriminating circumstances connecting the accused, he was held guilty for the offence punishable under Section 302 of the I.P.C. It was observed that correctness of conviction cannot be touched on the touchstone of lack of motive when evidence establishes beyond reasonable doubt the guilt of the accused. No such circumstances are established against the present appellants. Therefore, the said ruling would be of no help to the prosecution.27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside.
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27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside.
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State Of U.P Vs. Smt. Sarjoo Devi & Ors | of the Gaon Sabha to ejectment from the land, on payment of such compensation as ma y be prescribed."4. A conjoint reading of the provisions of these two sections would show that the Chairman, member or society of a committee referred to in section 121 can make an application to the Collector for ejectment of a person only if the land of which he is in possession is of the description specified in section 212 i.e. (1) if it was recorded as customary pasture land or (2) if it was a customary common pasture land. The evidence adduced in the case does not at all show that the suit land was recorded as customary pasture land nor does it show that it was in fact customary common pasture land. On the contrary, the appellants own record clearly negatives its-case. In Exhibits 2 and 45 which are copies of settlement Khatoni of 1323 Fasli, the land in question is clearly recorded as Parti with long thatching grass. Again in Khatoni of 1357 Fasli (1950 A.D.), the land is recorded as "Parti tit for cultivation". The courts below were, therefore, perfectly right in holding that there is no evidence to support the appellants contention that the land in question was either recorded as customary common pasture land or had ever been used as customary pasture land or pasture land in any year. Manifestly therefore, the Sub Divisional Officer, Khalilabad acted without jurisdiction and the impugned order passed by him directing the ejectment of the respondent No. 1 was wholly illegal, ineffective, null and void and not it all binding on respondent No. 1.Point No. 2:-The second point urged by Mr, Dixit is also devoid of substance. Even a cursory glance at sub-section (7) of section 212-A of the U.P. Z.A. and L.R. Act reproduced above is enough to show that the order passed by the Sub Divisional Officer, Khalilabad, under section 212-A is not final and it is open to the party against whom the order of ejectment is passed to institute a suit to establish the right claimed by it. It is only when the suit instituted by the person sought to be ejected fails that the order of ejectment becomes conclusive. The aforesaid order passed by the Sub Divisional Officer, Khalilabad cannot, therefore, be held to, be final and the suit brought by respondent No. 1 to establish her right was clearly maintainable.5. Point No. 3:-For a decision of this point, it is essential to refer to sections 3(14) and 19 of the U.P. Z.A. and L.R. Act, which read as follows:"3 (14). Land (except in sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.""19. All land held or deemed to have been held on the data immediately preceding the date of vesting by any person as(i) (ii) (iii) (iv) hereditary tenant(v)(vi)(vii)(viii)(iX)shall, have in cases provided for in clause (d) of sub-section (1) of section 18, be deemed to be settled by the State Government with such person who shall, subject to the provisions of this Act, be entitled except as provided in sub-section (2) of section 18, to take or retain, possession as a sirdar thereof.."6. A bare perusal of the definition of the word "land as contained in section 3(14) of the U.P. Z.A. and L.R. Act which is reproduced above would show that it is not necessary for the land to fall within the purview of this definition that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement of the definition is, in our opinion, amply satisfied if the land is either held or occupied for purposes connected with agriculture. The world "held" occurring in the above definition, which is a pa pple. of the word "hold" is of wide import. In the Unabridged Edition of "The Random House Dictionary of the English Language", t he word "hold" has been inter alia stated to mean "to have the ownership or use of; keep as ones own." In The Dictionary of English Law by Earl Jowitt (1959 Edition), the word "hold" has been interpreted as meaning "to have as tenant".In Strouds Judicial Dictionary (Fourth Edition), the distinction between holding and occupation is sought to be brought out by quoting the following observations by Littledale, J. in R. v. Ditcheat (9 B & C 108.)."There is a material difference between a holding and an occupation. A person may hold, though he does not occupy. A tenant is a person who holds of another; he does not necessarily occupy.In Websters New Twentieth Century Dictionary (Second Edition), it is stated that in legal parlance, the word "held" means to possess by legal titled. Relying upon this connotation, this Court in Budhan Singh & Anr. v. Nabi Bux & Anr. ([1970] 2 S.C.R. 10.), interpreted the word "held" in section. 9 of the U.P. Z.A. and L.R. Act as meaning possession by legal title."7. In the instant case, it has been concurrently found by the courts below on the basis of evidence adduced in the case that the land in question was let out to respondent No. 1 by the aforesaid intermediaries in May, 1950 (1357 Fasli) for growing crops; that she brought a substantial portion thereof under cultivation, paid rent to Girdhar Das and Purshottam Das in 1951 and 1952 proper receipts; that she has been regularly paying revenue to the appellant and that she has all along lawfully continued to hold the land for purposes connected with agriculture. It is also established from the appellants own revenue record that respondent No. 1 was holding the land as a hereditary tenant on the date immediately preceding the date of vesting. There is, therefore, no manner of doubt that she fulfilled all the requisite conditions and became a sirdar of the land on the date of vesting under section 19 of the U.P. Z.A. and L.R. Act.8. | 0[ds]conjoint reading of the provisions of these two sections would show that the Chairman, member or society of a committee referred to in section 121 can make an application to the Collector for ejectment of a person only if the land of which he is in possession is of the description specified in section 212 i.e. (1) if it was recorded as customary pasture land or (2) if it was a customary common pasture land. The evidence adduced in the case does not at all show that the suit land was recorded as customary pasture land nor does it show that it was in fact customary common pasture land. On the contrary, the appellants own record clearly negatives its-case. In Exhibits 2 and 45 which are copies of settlement Khatoni of 1323 Fasli, the land in question is clearly recorded as Parti with long thatching grass. Again in Khatoni of 1357 Fasli (1950 A.D.), the land is recorded as "Parti tit for cultivation". The courts below were, therefore, perfectly right in holding that there is no evidence to support the appellants contention that the land in question was either recorded as customary common pasture land or had ever been used as customary pasture land or pasture land in any year. Manifestly therefore, the Sub Divisional Officer, Khalilabad acted without jurisdiction and the impugned order passed by him directing the ejectment of the respondent No. 1 was wholly illegal, ineffective, null and void and not it all binding on respondent No.he second point urged by Mr, Dixit is also devoid of substance. Even a cursory glance at sub-section (7) of section 212-A of the U.P. Z.A. and L.R. Act reproduced above is enough to show that the order passed by the Sub Divisional Officer, Khalilabad, under section 212-A is not final and it is open to the party against whom the order of ejectment is passed to institute a suit to establish the right claimed by it. It is only when the suit instituted by the person sought to be ejected fails that the order of ejectment becomes conclusive. The aforesaid order passed by the Sub Divisional Officer, Khalilabad cannot, therefore, be held to, be final and the suit brought by respondent No. 1 to establish her right was clearlybare perusal of the definition of the word "land as contained in section 3(14) of the U.P. Z.A. and L.R. Act which is reproduced above would show that it is not necessary for the land to fall within the purview of this definition that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement of the definition is, in our opinion, amply satisfied if the land is either held or occupied for purposes connected with agriculture. The world "held" occurring in the above definition, which is a pa pple. of the word "hold" is of wide import. In the Unabridged Edition of "The Random House Dictionary of the English Language", t he word "hold" has been inter alia stated to mean "to have the ownership or use of; keep as ones own." In The Dictionary of English Law by Earl Jowitt (1959 Edition), the word "hold" has been interpreted as meaning "to have as tenant".In Strouds Judicial Dictionary (Fourth Edition), the distinction between holding and occupation is sought to be brought out by quoting the following observations by Littledale, J. in R.v. Ditcheat (9 B & Cthe instant case, it has been concurrently found by the courts below on the basis of evidence adduced in the case that the land in question was let out to respondent No. 1 by the aforesaid intermediaries in May, 1950 (1357 Fasli) for growing crops; that she brought a substantial portion thereof under cultivation, paid rent to Girdhar Das and Purshottam Das in 1951 and 1952 proper receipts; that she has been regularly paying revenue to the appellant and that she has all along lawfully continued to hold the land for purposes connected with agriculture. It is also established from the appellants own revenue record that respondent No. 1 was holding the land as a hereditary tenant on the date immediately preceding the date of vesting. There is, therefore, no manner of doubt that she fulfilled all the requisite conditions and became a sirdar of the land on the date of vesting under section 19 of the U.P. Z.A. and L.R. Act. | 0 | 3,426 | 836 | ### Instruction:
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of the Gaon Sabha to ejectment from the land, on payment of such compensation as ma y be prescribed."4. A conjoint reading of the provisions of these two sections would show that the Chairman, member or society of a committee referred to in section 121 can make an application to the Collector for ejectment of a person only if the land of which he is in possession is of the description specified in section 212 i.e. (1) if it was recorded as customary pasture land or (2) if it was a customary common pasture land. The evidence adduced in the case does not at all show that the suit land was recorded as customary pasture land nor does it show that it was in fact customary common pasture land. On the contrary, the appellants own record clearly negatives its-case. In Exhibits 2 and 45 which are copies of settlement Khatoni of 1323 Fasli, the land in question is clearly recorded as Parti with long thatching grass. Again in Khatoni of 1357 Fasli (1950 A.D.), the land is recorded as "Parti tit for cultivation". The courts below were, therefore, perfectly right in holding that there is no evidence to support the appellants contention that the land in question was either recorded as customary common pasture land or had ever been used as customary pasture land or pasture land in any year. Manifestly therefore, the Sub Divisional Officer, Khalilabad acted without jurisdiction and the impugned order passed by him directing the ejectment of the respondent No. 1 was wholly illegal, ineffective, null and void and not it all binding on respondent No. 1.Point No. 2:-The second point urged by Mr, Dixit is also devoid of substance. Even a cursory glance at sub-section (7) of section 212-A of the U.P. Z.A. and L.R. Act reproduced above is enough to show that the order passed by the Sub Divisional Officer, Khalilabad, under section 212-A is not final and it is open to the party against whom the order of ejectment is passed to institute a suit to establish the right claimed by it. It is only when the suit instituted by the person sought to be ejected fails that the order of ejectment becomes conclusive. The aforesaid order passed by the Sub Divisional Officer, Khalilabad cannot, therefore, be held to, be final and the suit brought by respondent No. 1 to establish her right was clearly maintainable.5. Point No. 3:-For a decision of this point, it is essential to refer to sections 3(14) and 19 of the U.P. Z.A. and L.R. Act, which read as follows:"3 (14). Land (except in sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.""19. All land held or deemed to have been held on the data immediately preceding the date of vesting by any person as(i) (ii) (iii) (iv) hereditary tenant(v)(vi)(vii)(viii)(iX)shall, have in cases provided for in clause (d) of sub-section (1) of section 18, be deemed to be settled by the State Government with such person who shall, subject to the provisions of this Act, be entitled except as provided in sub-section (2) of section 18, to take or retain, possession as a sirdar thereof.."6. A bare perusal of the definition of the word "land as contained in section 3(14) of the U.P. Z.A. and L.R. Act which is reproduced above would show that it is not necessary for the land to fall within the purview of this definition that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement of the definition is, in our opinion, amply satisfied if the land is either held or occupied for purposes connected with agriculture. The world "held" occurring in the above definition, which is a pa pple. of the word "hold" is of wide import. In the Unabridged Edition of "The Random House Dictionary of the English Language", t he word "hold" has been inter alia stated to mean "to have the ownership or use of; keep as ones own." In The Dictionary of English Law by Earl Jowitt (1959 Edition), the word "hold" has been interpreted as meaning "to have as tenant".In Strouds Judicial Dictionary (Fourth Edition), the distinction between holding and occupation is sought to be brought out by quoting the following observations by Littledale, J. in R. v. Ditcheat (9 B & C 108.)."There is a material difference between a holding and an occupation. A person may hold, though he does not occupy. A tenant is a person who holds of another; he does not necessarily occupy.In Websters New Twentieth Century Dictionary (Second Edition), it is stated that in legal parlance, the word "held" means to possess by legal titled. Relying upon this connotation, this Court in Budhan Singh & Anr. v. Nabi Bux & Anr. ([1970] 2 S.C.R. 10.), interpreted the word "held" in section. 9 of the U.P. Z.A. and L.R. Act as meaning possession by legal title."7. In the instant case, it has been concurrently found by the courts below on the basis of evidence adduced in the case that the land in question was let out to respondent No. 1 by the aforesaid intermediaries in May, 1950 (1357 Fasli) for growing crops; that she brought a substantial portion thereof under cultivation, paid rent to Girdhar Das and Purshottam Das in 1951 and 1952 proper receipts; that she has been regularly paying revenue to the appellant and that she has all along lawfully continued to hold the land for purposes connected with agriculture. It is also established from the appellants own revenue record that respondent No. 1 was holding the land as a hereditary tenant on the date immediately preceding the date of vesting. There is, therefore, no manner of doubt that she fulfilled all the requisite conditions and became a sirdar of the land on the date of vesting under section 19 of the U.P. Z.A. and L.R. Act.8.
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conjoint reading of the provisions of these two sections would show that the Chairman, member or society of a committee referred to in section 121 can make an application to the Collector for ejectment of a person only if the land of which he is in possession is of the description specified in section 212 i.e. (1) if it was recorded as customary pasture land or (2) if it was a customary common pasture land. The evidence adduced in the case does not at all show that the suit land was recorded as customary pasture land nor does it show that it was in fact customary common pasture land. On the contrary, the appellants own record clearly negatives its-case. In Exhibits 2 and 45 which are copies of settlement Khatoni of 1323 Fasli, the land in question is clearly recorded as Parti with long thatching grass. Again in Khatoni of 1357 Fasli (1950 A.D.), the land is recorded as "Parti tit for cultivation". The courts below were, therefore, perfectly right in holding that there is no evidence to support the appellants contention that the land in question was either recorded as customary common pasture land or had ever been used as customary pasture land or pasture land in any year. Manifestly therefore, the Sub Divisional Officer, Khalilabad acted without jurisdiction and the impugned order passed by him directing the ejectment of the respondent No. 1 was wholly illegal, ineffective, null and void and not it all binding on respondent No.he second point urged by Mr, Dixit is also devoid of substance. Even a cursory glance at sub-section (7) of section 212-A of the U.P. Z.A. and L.R. Act reproduced above is enough to show that the order passed by the Sub Divisional Officer, Khalilabad, under section 212-A is not final and it is open to the party against whom the order of ejectment is passed to institute a suit to establish the right claimed by it. It is only when the suit instituted by the person sought to be ejected fails that the order of ejectment becomes conclusive. The aforesaid order passed by the Sub Divisional Officer, Khalilabad cannot, therefore, be held to, be final and the suit brought by respondent No. 1 to establish her right was clearlybare perusal of the definition of the word "land as contained in section 3(14) of the U.P. Z.A. and L.R. Act which is reproduced above would show that it is not necessary for the land to fall within the purview of this definition that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement of the definition is, in our opinion, amply satisfied if the land is either held or occupied for purposes connected with agriculture. The world "held" occurring in the above definition, which is a pa pple. of the word "hold" is of wide import. In the Unabridged Edition of "The Random House Dictionary of the English Language", t he word "hold" has been inter alia stated to mean "to have the ownership or use of; keep as ones own." In The Dictionary of English Law by Earl Jowitt (1959 Edition), the word "hold" has been interpreted as meaning "to have as tenant".In Strouds Judicial Dictionary (Fourth Edition), the distinction between holding and occupation is sought to be brought out by quoting the following observations by Littledale, J. in R.v. Ditcheat (9 B & Cthe instant case, it has been concurrently found by the courts below on the basis of evidence adduced in the case that the land in question was let out to respondent No. 1 by the aforesaid intermediaries in May, 1950 (1357 Fasli) for growing crops; that she brought a substantial portion thereof under cultivation, paid rent to Girdhar Das and Purshottam Das in 1951 and 1952 proper receipts; that she has been regularly paying revenue to the appellant and that she has all along lawfully continued to hold the land for purposes connected with agriculture. It is also established from the appellants own revenue record that respondent No. 1 was holding the land as a hereditary tenant on the date immediately preceding the date of vesting. There is, therefore, no manner of doubt that she fulfilled all the requisite conditions and became a sirdar of the land on the date of vesting under section 19 of the U.P. Z.A. and L.R. Act.
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N.E. Horo Vs. Jahanara Jaipal Singh | special ceremonies are performed.21. Even in the account given by S. C. Roy as well as by P. W. 4 a Munda male is ex-communicated for marrying a non-Munda girl but such ex-communication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non-Munda then no question of ex-communication arises. Thus several inroads appear to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was ex-communicated or outcasted because he had married a non-Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.22. Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence its proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become members of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda womans marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is note-worthy that a Hinduised Munda and a Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. | 0[ds]7. It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non-joinder of necessary parties. When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded. The Court directed that they be added as parties. Shri Bodra who was one of the contesting parties was consequently impleaded as a party. Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted. Bodras name was therefore deleted. The argument raised before the High Court was that Bodra being a necessary party to the petition under Clause (b) of Section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in Paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected. No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub-section (7) of Section 123 of the Act. The contention that the petition was not maintainable was consequently rejected.On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the election petitioner with the late Shri Jaipal Singh had not been disputed. The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe. According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired. The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri Jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The Court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe.As regards the first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of S. 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do no consider that such a point can be allowed to be agitated for the first time before thisto him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is "A tribe is a collection of families bearing a common name, speaking a common dialect, occupying or professing to occupy a common territory and is not usually endogamous though originally it might have been so". "Endogamy is an essential feature of the tribe though inter-tribal marriages are breaking the limits of endogamy. It is further of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions. Tribal customs and practices which established social life lose their value and the choice of leader and of mate is guided by different considerations". The Munda tribe cannot be said to be immune from the above process of change in their social organisation. Changes in their belief, customs, tradition and practices have taken place under the influence of Hinduism, and Christianity, and on account of the impact of Western education, urbanisation, industrialisation and improved means of communication. The sense of individualism and lack of love for the traditional code of conduct and social taboos are stated to be apparent among the emerging urban-industrial oriented adivasi communities.Our attention has been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endogamous birth alone can confer the status of membership of the tribal community. In V. V. Giri v. D. Suri, 21 ELR 188 = (AIR 1959 SC 1318 ), one of the questions raised was whether respondent No. 1 in that case had ceased to be a member of the Scheduled Tribe at the material time because he had become a Kshatriya. This Court observed that it was essential to bear in mind the broad and recognised features of the hierarchical social structure prevalent amongst the Hindus. It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non-Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances.19. The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopaedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopaedia Britannica, Vol. 15. And the Encyclopaedia of Religion and Ethics by James Hastings, Vol. IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or sect was concerned, the process of Munda assimilation to the larger Indian society facilitated by improved communications and the introduction of formal system of deduction was being accellerated under the independent Government of India. In Encyclopaedia Britannica. Vol. 15 in the Chapter relating to Mundas it is also mentioned. "The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to be come fully participating members of Indian society". (page 991). Similarly in the Encyclopaedia of Religion and ethics by James Hastings, Vol. IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity. Referring to the Chapter in Reids book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction. The High Court further relied on the decision in Wilson Read v. C. S. Booth, AIR 1958 SC 128 in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case. It was said that the whole object of reserving a seat for a particular tribe was to afford the community, as a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation. Thus the conduct of the community which had been given the right of special representation, the manner and how the community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Schedule Tribe. The High Court was alive to the fact - and this point of distinction has been greatly emphasised by Mr. Anthony - that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound.20. It appears to us, on a full consideration of the entire material, that the following matters stand established in the presentThe Mundas are endogamous and inter-marriage with non-Mundas is normally prohibited.(2) That a Munda mala along with his family on marrying a non-Munda girl is often ex-communicated or out casted.(3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies.(4) That such marriages have been and are being sanctioned by the Parha Panchayat.(5) That where a Munda male and his family are outcasted for marrying a non-Munday they are admitted to the tribe after certain special ceremonies are performed.Even in the account given by S. C. Roy as well as by P. W. 4 a Munda male is ex-communicated for marrying a non-Munda girl but such ex-communication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non-Munda then no question of ex-communication arises. Thus several inroads appear to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was ex-communicated or outcasted because he had married a non-Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.22. Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence its proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become members of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda womans marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is note-worthy that a Hinduised Munda and a Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. | 0 | 7,903 | 3,064 | ### Instruction:
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special ceremonies are performed.21. Even in the account given by S. C. Roy as well as by P. W. 4 a Munda male is ex-communicated for marrying a non-Munda girl but such ex-communication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non-Munda then no question of ex-communication arises. Thus several inroads appear to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was ex-communicated or outcasted because he had married a non-Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.22. Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence its proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become members of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda womans marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is note-worthy that a Hinduised Munda and a Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.
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certain special ceremonies are performed.Even in the account given by S. C. Roy as well as by P. W. 4 a Munda male is ex-communicated for marrying a non-Munda girl but such ex-communication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non-Munda then no question of ex-communication arises. Thus several inroads appear to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was ex-communicated or outcasted because he had married a non-Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.22. Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence its proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become members of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda womans marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is note-worthy that a Hinduised Munda and a Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.
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Assam Sillimanite Limited and Another Vs. Union of India and Others | Act The State under Clause (b) of Article 39 is required to direct its policy towards securing that the ownership and the control of material resources of the community are so distributed as best to subserve the common good. The purpose sought to be achieved by the enactment is the augmentation of the supplies of refractories to meet the essential requirements of the iron and steel industry. It cannot be disputed that iron and steel industry is crucial in the development process. With the expansion of iron and steel industries, the requirement of the necessary ingredients are bound to grow and the plants for manufacture of such ingredients have necessarily to be harnessed to meet such requirements. The key words material resources of the community and distribution occurring in Clause (2) of Article 39 have been interpreted in the earlier decisions of this Court 32. In State of Karnataka v. Ranganatha Reddy (supra), the Karnataka Contract Carriages Acquisition Act, 1976 for nationalisation of contract carriages in the State was challenged on the ground that there is no real and substantial nexus between the purpose of the acquisition and securing the principles specified in Article 39. The Court said at page 515 thus: "And material resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Every thing of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community....nationalisation of transport as a distributive process for the good of the community." 33. In State of Tamil Nadu v. Abu Kavur Bai (supra), it was held that material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical resources but also movable or immovable properties, such as the vehicles, tools, implements and the workshop etc. It was also held that the nationalisation of the transport would undoubtedly be a distribution for the common good of the people and would be clearly covered by Clause (b) of Article 39. 34. In Sanjeev Coke Manufacturing Company (supra), the constitutional validity of Coking Coals Mines (Nationalisation) Act, 1972 and the Coal Mines (Taking Over of Management) Act, 1973 was under challenge. The Court said that when Article 39(b) refers to material resources of the community, it does not refer only to resources owned by the community as a whole but it refers also to resources owned by individual members of the community. The Court also held that the expression material resources of the community is not confined to natural resources; it is not confined to resources owned by the public; it means and includes all resources, natural and man-made, public and private-owned. 35. Therefore, all things which are capable of producing wealth for the community would be material resources. The conservation of the essential ingredients necessary for the crucial iron and steel industry by nationalisation is only in implementation of the policy declared in Clause (b) of Article 39. 36. In the recent decision of this Court in Tinsukhia Electric Supply Company (supra), the Tinsukhia Electric Supply Undertaking (Acquisition) Act, 1973 was challenged as unconstitutional. The contention that the Act was entitled to the protection under Article 31C was upheld pointing out that electric energy generated by the supplier companies constitute material resources of the community within the scope and meaning of Article 39(b) and having regard to the true nature and purpose of the legislation the objects of the legislation have a direct and reasonable nexus with the objective of distributing the material resources so as to subserve the common good. 37. The Act is declared to have been enacted for giving effect to the policy of the State towards securing principles specified in Clause (b) of Article 39. The Preamble of the Act refers to the necessity to augment the supply of refractories to meet the essential requirements to the iron and steel industry. It further states that special type of refractories including high aluminum refractories needed by the iron and steel industry may be manufactured at the Refractory Plant of Assam Sillimanite Limited and such manufacture will enable the country to progressively reduce the import of such special type of refractories. The Act purports to have been enacted for acquiring the plant for the purpose of augmenting the supplies of refractories to meet the essential requirements of the iron and steel industry. 38. We are, therefore, of the view that the plant as well as the manufactured refractories constitute material resources of the community and the take over of the plant to augment the supplies of refractories to meet the essential requirements of the iron and steel industry in public interest ensures distribution as best to subserve the common good. The impugned Act which is intended to augment the production and supply of refractories to meet the essential requirements of the crucial iron and steel industry is a measure towards implementation of the policy contained in Clause (b) of Article 39. There is, therefore, direct and rational nexus between the objective of the enactment and the principles contained in that Article. The Act in this view is entitled to the protection under Article 31C. 39. An argument has been advanced on behalf of the appellant-company that if the compensation is not only illusory but producing negative result, then the protection of Article 31C is not available to the impugned legislation. We find no merit in this argument. When Article 31C is attracted, the argument in regard to the alleged illusory nature of the amount does not survive at all for consideration. If once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said article expressly excludes not only Articles 14 and 19 but also 31. When Article 31C comes in, Article 31 goes out. 40. | 0[ds]The extent and scope of judicial review ofwhere there is a declaration under Article 31C of the Constitution which enjoins that no law containing a declaration that it is for giving effect to such a policy shall be called in question in any Court on the plea that it does not give effect to such a policy has been considered in Kesavanandai v. State ofSCC 225. On an analysis of the majority judgment therein Sabyasachi Mukharji, J. (as he then was) observed in Tinsukhia Electric Supply Company casethat the declaration in Article 31C does not exclude the jurisdiction of the Court to determine whether the law is for giving effect to the policy of the State towards securing the principles specified in39(b) and (c). Mathew, J. had observed in Kesavanandai v. State ofSCC 225that in order to decide whether a law gives effect to the policy of the State towards securing the directive principles specified in Article 39(b) or (c), a Court will have to examine the pith and substance, the true nature and character of the law as also its design and the subjectmatter dealt with by it together with its object and scope. If a law passed ostensibly to give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorised object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of theIt is, therefore, necessary notwithstanding the declaration contained in Section 30 of the Act, to consider whether there is a nexus between the Act and the policy of the State declared in Article 39(b) or (c). The test to determine whether the law is enacted for giving effect to a directive is to determine whether there is real and rational connection between the law andWe shall therefore examine the provisions of the Act for the purpose of satisfying whether the Act furthers the policy stated in(b) of Article 39 as declared in theThe State under(b) of Article 39 is required to direct its policy towards securing that the ownership and the control of material resources of the community are so distributed as best to subserve the common good. The purpose sought to be achieved by the enactment is the augmentation of the supplies of refractories to meet the essential requirements of the iron and steel industry. It cannot be disputed that iron and steel industry is crucial in theprocess. With the expansion of iron and steel industries, the requirement of the necessary ingredients are bound to grow and the plants for manufacture of such ingredients have necessarily to be harnessed to meet such requirements. The key words material resources of the community and distribution occurring in(2) of Article 39 have been interpreted in the earlier decisions of thisIn State of Karnataka v. Ranganatha Reddythe Karnataka Contract Carriages Acquisition Act, 1976 for nationalisation of contract carriages in the State was challenged on the ground that there is no real and substantial nexus between the purpose of the acquisition and securing the principles specified in Article 39. The Court said at page 515 thus1 andmaterial resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting materialneeds, not merely public possessions.of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community....y innationalisation of transport as a distributiveood of the community."v. Abu Kavur Bai [it was held that material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical resources but also movable or immovable properties, such as the vehicles, tools, implements and theetc. It was also held that the nationalisation of the transport would undoubtedly be a distribution for the common good of the people and would be clearly covered by(b) of ArticleIn Sanjeev Coke Manufacturing Companythe constitutional validity of Coking Coals Mines (Nationalisation) Act, 1972 and the Coal Mines (Taking Over of Management) Act, 1973 was under challenge. The Court said that when Article 39(b) refers to material resources of the community, it does not refer only to resources owned by the community as a whole but it refers also to resources ownedl members of the community. The Court also held that the expression material resources of the community is not confined to natural resources; it is not confined to resources owned by the public; it means and includes all resources, natural andpublic and privateTherefore, all things which are capable of producing wealth for the community would be material resources. The conservation of the essential ingredients necessary for the crucial iron and steel industry by nationalisation ison of the policy declared in(b) of ArticleIn the recent decision of this Court in Tinsukhia Electric Supply Companythe Tinsukhia Electric Supply Undertaking (Acquisition) Act, 1973 was challenged as unconstitutional. The contention that the Act was entitled to the protection under Article 31C was upheld pointing out that electric energy generated by the supplier companies constitute material resources of the community within the scope and meaning of Article 39(b) and having regard to the true nature and purpose of the legislation the objects of the legislation have a direct and reasonable nexus with the objective of distributing the material resources so as to subserve the commonThe Act is declared to have been enacted for giving effect to the policy of the State towards securing principles specified in(b) of Article39. The Preamble of the Act refers to the necessity to augment the supply of refractories to meet the essential requirementsof the iron and steel industry. Itfurther states that special type of refractories including highrefractories needed by the iron and steel industry may be manufactured at the Refractory Plant of Assam Sillimanite Limited and such manufacture will enable the country to progressively reduce the import of such special type of refractories. The Act purports to have been enacted for acquiring the plant for the purpose of augmenting the supplies of refractories to meet the essential requirements of the iron. We are, therefore, of the view that the plant as well as the manufactured refractories constitute material resources of the community and theof the plant to augment the supplies of refractories to meet the essential requirements of the iron and steelic interest ensures distribution as best to subserve the common good. The impugned Act which is intended to augment the production and supply of refractories to meet the essential requirements of the crucial iron and steel industry is a measure towards implementation of the policy contained in(b) of Article39. There is, therefore, direct and rational nexus between the objective of the enactment and the principles contained in thatThe Act in this view is entitled to the protection under ArticleAn argument has been advanced on behalf of thethat if the compensation is not only illusory but producing negative result, then the protection of Article 31C is not availableto the impugnedlegislation. We find no merit in this argument. When Article 31C is attracted, the argument in regard to the alleged illusory nature of the amount does not survive at all for consideration. If once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said article expressly excludes not only Articles 14 and 19 but also 31. When Article 31C comes in, Article 31 goes out | 0 | 5,869 | 1,370 | ### 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:
Act The State under Clause (b) of Article 39 is required to direct its policy towards securing that the ownership and the control of material resources of the community are so distributed as best to subserve the common good. The purpose sought to be achieved by the enactment is the augmentation of the supplies of refractories to meet the essential requirements of the iron and steel industry. It cannot be disputed that iron and steel industry is crucial in the development process. With the expansion of iron and steel industries, the requirement of the necessary ingredients are bound to grow and the plants for manufacture of such ingredients have necessarily to be harnessed to meet such requirements. The key words material resources of the community and distribution occurring in Clause (2) of Article 39 have been interpreted in the earlier decisions of this Court 32. In State of Karnataka v. Ranganatha Reddy (supra), the Karnataka Contract Carriages Acquisition Act, 1976 for nationalisation of contract carriages in the State was challenged on the ground that there is no real and substantial nexus between the purpose of the acquisition and securing the principles specified in Article 39. The Court said at page 515 thus: "And material resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Every thing of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community....nationalisation of transport as a distributive process for the good of the community." 33. In State of Tamil Nadu v. Abu Kavur Bai (supra), it was held that material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical resources but also movable or immovable properties, such as the vehicles, tools, implements and the workshop etc. It was also held that the nationalisation of the transport would undoubtedly be a distribution for the common good of the people and would be clearly covered by Clause (b) of Article 39. 34. In Sanjeev Coke Manufacturing Company (supra), the constitutional validity of Coking Coals Mines (Nationalisation) Act, 1972 and the Coal Mines (Taking Over of Management) Act, 1973 was under challenge. The Court said that when Article 39(b) refers to material resources of the community, it does not refer only to resources owned by the community as a whole but it refers also to resources owned by individual members of the community. The Court also held that the expression material resources of the community is not confined to natural resources; it is not confined to resources owned by the public; it means and includes all resources, natural and man-made, public and private-owned. 35. Therefore, all things which are capable of producing wealth for the community would be material resources. The conservation of the essential ingredients necessary for the crucial iron and steel industry by nationalisation is only in implementation of the policy declared in Clause (b) of Article 39. 36. In the recent decision of this Court in Tinsukhia Electric Supply Company (supra), the Tinsukhia Electric Supply Undertaking (Acquisition) Act, 1973 was challenged as unconstitutional. The contention that the Act was entitled to the protection under Article 31C was upheld pointing out that electric energy generated by the supplier companies constitute material resources of the community within the scope and meaning of Article 39(b) and having regard to the true nature and purpose of the legislation the objects of the legislation have a direct and reasonable nexus with the objective of distributing the material resources so as to subserve the common good. 37. The Act is declared to have been enacted for giving effect to the policy of the State towards securing principles specified in Clause (b) of Article 39. The Preamble of the Act refers to the necessity to augment the supply of refractories to meet the essential requirements to the iron and steel industry. It further states that special type of refractories including high aluminum refractories needed by the iron and steel industry may be manufactured at the Refractory Plant of Assam Sillimanite Limited and such manufacture will enable the country to progressively reduce the import of such special type of refractories. The Act purports to have been enacted for acquiring the plant for the purpose of augmenting the supplies of refractories to meet the essential requirements of the iron and steel industry. 38. We are, therefore, of the view that the plant as well as the manufactured refractories constitute material resources of the community and the take over of the plant to augment the supplies of refractories to meet the essential requirements of the iron and steel industry in public interest ensures distribution as best to subserve the common good. The impugned Act which is intended to augment the production and supply of refractories to meet the essential requirements of the crucial iron and steel industry is a measure towards implementation of the policy contained in Clause (b) of Article 39. There is, therefore, direct and rational nexus between the objective of the enactment and the principles contained in that Article. The Act in this view is entitled to the protection under Article 31C. 39. An argument has been advanced on behalf of the appellant-company that if the compensation is not only illusory but producing negative result, then the protection of Article 31C is not available to the impugned legislation. We find no merit in this argument. When Article 31C is attracted, the argument in regard to the alleged illusory nature of the amount does not survive at all for consideration. If once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said article expressly excludes not only Articles 14 and 19 but also 31. When Article 31C comes in, Article 31 goes out. 40.
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0
### Explanation:
declaration contained in Section 30 of the Act, to consider whether there is a nexus between the Act and the policy of the State declared in Article 39(b) or (c). The test to determine whether the law is enacted for giving effect to a directive is to determine whether there is real and rational connection between the law andWe shall therefore examine the provisions of the Act for the purpose of satisfying whether the Act furthers the policy stated in(b) of Article 39 as declared in theThe State under(b) of Article 39 is required to direct its policy towards securing that the ownership and the control of material resources of the community are so distributed as best to subserve the common good. The purpose sought to be achieved by the enactment is the augmentation of the supplies of refractories to meet the essential requirements of the iron and steel industry. It cannot be disputed that iron and steel industry is crucial in theprocess. With the expansion of iron and steel industries, the requirement of the necessary ingredients are bound to grow and the plants for manufacture of such ingredients have necessarily to be harnessed to meet such requirements. The key words material resources of the community and distribution occurring in(2) of Article 39 have been interpreted in the earlier decisions of thisIn State of Karnataka v. Ranganatha Reddythe Karnataka Contract Carriages Acquisition Act, 1976 for nationalisation of contract carriages in the State was challenged on the ground that there is no real and substantial nexus between the purpose of the acquisition and securing the principles specified in Article 39. The Court said at page 515 thus1 andmaterial resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting materialneeds, not merely public possessions.of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community....y innationalisation of transport as a distributiveood of the community."v. Abu Kavur Bai [it was held that material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical resources but also movable or immovable properties, such as the vehicles, tools, implements and theetc. It was also held that the nationalisation of the transport would undoubtedly be a distribution for the common good of the people and would be clearly covered by(b) of ArticleIn Sanjeev Coke Manufacturing Companythe constitutional validity of Coking Coals Mines (Nationalisation) Act, 1972 and the Coal Mines (Taking Over of Management) Act, 1973 was under challenge. The Court said that when Article 39(b) refers to material resources of the community, it does not refer only to resources owned by the community as a whole but it refers also to resources ownedl members of the community. The Court also held that the expression material resources of the community is not confined to natural resources; it is not confined to resources owned by the public; it means and includes all resources, natural andpublic and privateTherefore, all things which are capable of producing wealth for the community would be material resources. The conservation of the essential ingredients necessary for the crucial iron and steel industry by nationalisation ison of the policy declared in(b) of ArticleIn the recent decision of this Court in Tinsukhia Electric Supply Companythe Tinsukhia Electric Supply Undertaking (Acquisition) Act, 1973 was challenged as unconstitutional. The contention that the Act was entitled to the protection under Article 31C was upheld pointing out that electric energy generated by the supplier companies constitute material resources of the community within the scope and meaning of Article 39(b) and having regard to the true nature and purpose of the legislation the objects of the legislation have a direct and reasonable nexus with the objective of distributing the material resources so as to subserve the commonThe Act is declared to have been enacted for giving effect to the policy of the State towards securing principles specified in(b) of Article39. The Preamble of the Act refers to the necessity to augment the supply of refractories to meet the essential requirementsof the iron and steel industry. Itfurther states that special type of refractories including highrefractories needed by the iron and steel industry may be manufactured at the Refractory Plant of Assam Sillimanite Limited and such manufacture will enable the country to progressively reduce the import of such special type of refractories. The Act purports to have been enacted for acquiring the plant for the purpose of augmenting the supplies of refractories to meet the essential requirements of the iron. We are, therefore, of the view that the plant as well as the manufactured refractories constitute material resources of the community and theof the plant to augment the supplies of refractories to meet the essential requirements of the iron and steelic interest ensures distribution as best to subserve the common good. The impugned Act which is intended to augment the production and supply of refractories to meet the essential requirements of the crucial iron and steel industry is a measure towards implementation of the policy contained in(b) of Article39. There is, therefore, direct and rational nexus between the objective of the enactment and the principles contained in thatThe Act in this view is entitled to the protection under ArticleAn argument has been advanced on behalf of thethat if the compensation is not only illusory but producing negative result, then the protection of Article 31C is not availableto the impugnedlegislation. We find no merit in this argument. When Article 31C is attracted, the argument in regard to the alleged illusory nature of the amount does not survive at all for consideration. If once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said article expressly excludes not only Articles 14 and 19 but also 31. When Article 31C comes in, Article 31 goes out
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Lakshmi Achi And Others Vs. T.V.V. Kailasa Thevar And Others | principal Act and in as much as the claim of defendant No. 1 under that provision had been negatived both by the District judge and the High Court on previous applications made by defendant No. 1, it was not open to him to make fresh claim under the same provision. Learned counsel has also submitted that the provisions of the amending Act, 1948 have no application in the present case and therefore no new right has been given to defendant No. 1.The crucial point for decision in connection with the arguments stated above is whether the decree in the present case is a decree passed before the commencement of the principal Act or after its commencement. It is indeed true that the District Judge passed a preliminary decree on May 15, 1937 and a final decree on January 28, 1938. These decrees, however, were superseded by the preliminary decree which the High Court passed on March 25, 1942. As this court pointed out in Ramaswami Ayyangars case (supra), a preliminary decree was drawn up in accordance with the judgment of the High Court by which the amount due from defendants 2 to 7 was scaled down while so far as defendant No. 1 was concerned, the decree of the trial Judge was affirmed subject to a slight modification regarding the rate of interest. The decree passed on March 25, 1942 was a preliminary decree in as much as it directed that in default of the payment of the amounts directed to be paid by the decree, the mortgaged properties would be sold. When no payments were made as directed by the preliminary decree of the High Court a final decree in terms of the same was passed by the District Judge himself on September 25, 1943. This was the decree which was put in execution. It is well settled that where an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree; see Jowad Hussain v. Gendan Singh [A.I.R. 1926 P.C. 93.]. In that decision the Privy Council quoted with approval the following observations of Banerjee, J. made in Gajadhar Singh v. Kishan Jiwan Lal [(1917) I.L.R. 39 All. 641.]."It seems to me that this rule - the rule regulating application for final decree in mortgage actions - contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause." The principle that the appellate order is the operative order after the appeal is disposed of, which is the basis of the rule that the decree of the lower court merges in the decree of the appellate court, has been approved by this court in The Collector of Customs, Calcutta v. The East India Commercial Co. Ltd., [[1963] 2 S.C.R. 563.]. We are therefore of the view that the operative decree in the present case was the preliminary decree made by the High Court on March 25, 1942 which was made final on September 25, 1943. That being the position, the present is a case to which sub-s. (2) of s. 19 is attracted as also the provisions of s. 16 of the amending Act of 1948. Sub-s. (2) of s. 19 read with cl. (iii) of s. 16 entitles defendant No. 1 (respondent No. 1 herein) to claim the benefit of the principal Act, even though his earlier applications prior to the amending Act of 1948 were rejected. Sub-s. (2) of s. 19 read with s. 16 creates a new right in favour of respondent No. 1 and that right cannot be defeated on the principle of res judicata. The true scope and effect of s. 16 was considered by this court in Narayanan Chettiar v. Annamalai Chettiar [[1959] Supp. 1 S.C.R. 237.]. Referring to cl. (iii) of s. 16 this court said :"Clause (iii), it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had not been executed or satisfied in full before January 25, 1949 : this means that though a final decree or order for repayment of the debt had been passed before January 25, 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has not been executed or satisfied in full before the aforesaid date. It should be remembered in this connection that the word debt in the Act has a very comprehensive connotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise etc. It is, therefore, clear that the word debt includes a decretal debt." In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejected. 9. We have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act. | 0[ds]In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejectedWe have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act. | 0 | 4,356 | 199 | ### 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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principal Act and in as much as the claim of defendant No. 1 under that provision had been negatived both by the District judge and the High Court on previous applications made by defendant No. 1, it was not open to him to make fresh claim under the same provision. Learned counsel has also submitted that the provisions of the amending Act, 1948 have no application in the present case and therefore no new right has been given to defendant No. 1.The crucial point for decision in connection with the arguments stated above is whether the decree in the present case is a decree passed before the commencement of the principal Act or after its commencement. It is indeed true that the District Judge passed a preliminary decree on May 15, 1937 and a final decree on January 28, 1938. These decrees, however, were superseded by the preliminary decree which the High Court passed on March 25, 1942. As this court pointed out in Ramaswami Ayyangars case (supra), a preliminary decree was drawn up in accordance with the judgment of the High Court by which the amount due from defendants 2 to 7 was scaled down while so far as defendant No. 1 was concerned, the decree of the trial Judge was affirmed subject to a slight modification regarding the rate of interest. The decree passed on March 25, 1942 was a preliminary decree in as much as it directed that in default of the payment of the amounts directed to be paid by the decree, the mortgaged properties would be sold. When no payments were made as directed by the preliminary decree of the High Court a final decree in terms of the same was passed by the District Judge himself on September 25, 1943. This was the decree which was put in execution. It is well settled that where an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree; see Jowad Hussain v. Gendan Singh [A.I.R. 1926 P.C. 93.]. In that decision the Privy Council quoted with approval the following observations of Banerjee, J. made in Gajadhar Singh v. Kishan Jiwan Lal [(1917) I.L.R. 39 All. 641.]."It seems to me that this rule - the rule regulating application for final decree in mortgage actions - contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause." The principle that the appellate order is the operative order after the appeal is disposed of, which is the basis of the rule that the decree of the lower court merges in the decree of the appellate court, has been approved by this court in The Collector of Customs, Calcutta v. The East India Commercial Co. Ltd., [[1963] 2 S.C.R. 563.]. We are therefore of the view that the operative decree in the present case was the preliminary decree made by the High Court on March 25, 1942 which was made final on September 25, 1943. That being the position, the present is a case to which sub-s. (2) of s. 19 is attracted as also the provisions of s. 16 of the amending Act of 1948. Sub-s. (2) of s. 19 read with cl. (iii) of s. 16 entitles defendant No. 1 (respondent No. 1 herein) to claim the benefit of the principal Act, even though his earlier applications prior to the amending Act of 1948 were rejected. Sub-s. (2) of s. 19 read with s. 16 creates a new right in favour of respondent No. 1 and that right cannot be defeated on the principle of res judicata. The true scope and effect of s. 16 was considered by this court in Narayanan Chettiar v. Annamalai Chettiar [[1959] Supp. 1 S.C.R. 237.]. Referring to cl. (iii) of s. 16 this court said :"Clause (iii), it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had not been executed or satisfied in full before January 25, 1949 : this means that though a final decree or order for repayment of the debt had been passed before January 25, 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has not been executed or satisfied in full before the aforesaid date. It should be remembered in this connection that the word debt in the Act has a very comprehensive connotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise etc. It is, therefore, clear that the word debt includes a decretal debt." In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejected. 9. We have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act.
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In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejectedWe have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act.
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Hem Chand Vs. State Of Jharkhand | for framing of charge has been made out. He, furthermore, filed some documents in his own defence. The said application for discharge was rejected by the learned Special Judge, CBI, opining that the documents relied on by the appellant cannot be looked into for the purpose of passing an order on his application for discharge. Revision Application filed by the appellant there against under Section 397 of the Code of Criminal Procedure has been dismissed by the High Court by reason of the impugned judgment.5. Appellant admittedly, is facing trial for an alleged commission of an offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1998. Allegations against the appellant are that he was found to be in possession of assets more than his known source of income. The question is as to whether any documents, whereupon the appellant may rely upon in support of his defence, can be looked into at the stage of framing of the charge. 6. Mr. Saurabh Mishra, the learned counsel appearing on behalf of the appellant would submit that keeping in view the order passed by the High Court on 20.4.2001 in Criminal Revision No. 90 of 1999, it is evident that Central Bureau of Investigation itself has seized the said documents from the residence of the appellant and in that view of the matter, he could rely thereupon.7. Mr. B.B. Singh, the learned counsel appearing on behalf of the State, on the other hand, would submit that from a perusal of the order passed by the learned Special Judge, it would be evident that the appellant intended to rely upon some documents which were filed before the learned Special Judge for the first time, the impugned judgment should not be interfered with.8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. The documents whereupon the appellant intended to rely upon were:(i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets.9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon.10. The learned Special Judge has noticed that sixteen number of documents had been filed by the appellant together with his application for discharge. The prosecution has also relied upon a large number of documents which were 56 in number, out of which 5 being related to the matter of investigation, have nothing to do with the merit of the matter. Out of the 51 documents, seventeen related to the expenditure purported to have been incurred by the appellant. Four documents related to income of the appellants wife. Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively and one related to his mothers assets. 23 documents, thus, related to the assets of the appellant which are reflected in his declaration of assets made annually by him.11. The learned Special Judge, however, considering the documents on record opined; "But at this stage I find that unless the documents filed by the defence are not formally proved no finding can be given, because it would amount to discussion the merit of the case before conclusion of trial. However, the materials collected in the case diary by the prosecution reveals that there are ground for framing charge under the aforesaid sections against the accused petitioner. Hence, the above petition stands rejected." 12. The learned counsel for the CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. In State of M.P. Vs. Mohanlal Soni [(2000) 6 SCC 338] , this Court has held; "7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed;"As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed." We agree with the said view.See also State of Orissa Vs. Debendra Nath Padhi [(2005) 1 SCC 568] We may, however, add that in this case, this Court is not concerned with other legal principles, which would be applied in determining the issues at that stage. 13. For the reasons aforementioned, there | 0[ds]8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. The documents whereupon the appellant intended to rely upon were:(i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets.9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon.10. The learned Special Judge has noticed that sixteen number of documents had been filed by the appellant together with his application for discharge. The prosecution has also relied upon a large number of documents which were 56 in number, out of which 5 being related to the matter of investigation, have nothing to do with the merit of the matter. Out of the 51 documents, seventeen related to the expenditure purported to have been incurred by the appellant. Four documents related to income of the appellants wife. Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively and one related to his mothers assets. 23 documents, thus, related to the assets of the appellant which are reflected in his declaration of assets made annually by him.11. The learned Special Judge, however, considering the documents on recordat this stage I find that unless the documents filed by the defence are not formally proved no finding can be given, because it would amount to discussion the merit of the case before conclusion of trial. However, the materials collected in the case diary by the prosecution reveals that there are ground for framing charge under the aforesaid sections against the accused petitioner. Hence, the above petition stands rejected.The learned counsel for the CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. In State of M.P. Vs. Mohanlal Soni [(2000) 6 SCC 338] , this Court hasThe crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed;"As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can beagree with the said view.See also State of Orissa Vs. Debendra Nath Padhi [(2005) 1 SCC 568] We may, however, add that in this case, this Court is not concerned with other legal principles, which would be applied in determining the issues at that | 0 | 1,460 | 762 | ### 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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for framing of charge has been made out. He, furthermore, filed some documents in his own defence. The said application for discharge was rejected by the learned Special Judge, CBI, opining that the documents relied on by the appellant cannot be looked into for the purpose of passing an order on his application for discharge. Revision Application filed by the appellant there against under Section 397 of the Code of Criminal Procedure has been dismissed by the High Court by reason of the impugned judgment.5. Appellant admittedly, is facing trial for an alleged commission of an offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1998. Allegations against the appellant are that he was found to be in possession of assets more than his known source of income. The question is as to whether any documents, whereupon the appellant may rely upon in support of his defence, can be looked into at the stage of framing of the charge. 6. Mr. Saurabh Mishra, the learned counsel appearing on behalf of the appellant would submit that keeping in view the order passed by the High Court on 20.4.2001 in Criminal Revision No. 90 of 1999, it is evident that Central Bureau of Investigation itself has seized the said documents from the residence of the appellant and in that view of the matter, he could rely thereupon.7. Mr. B.B. Singh, the learned counsel appearing on behalf of the State, on the other hand, would submit that from a perusal of the order passed by the learned Special Judge, it would be evident that the appellant intended to rely upon some documents which were filed before the learned Special Judge for the first time, the impugned judgment should not be interfered with.8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. The documents whereupon the appellant intended to rely upon were:(i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets.9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon.10. The learned Special Judge has noticed that sixteen number of documents had been filed by the appellant together with his application for discharge. The prosecution has also relied upon a large number of documents which were 56 in number, out of which 5 being related to the matter of investigation, have nothing to do with the merit of the matter. Out of the 51 documents, seventeen related to the expenditure purported to have been incurred by the appellant. Four documents related to income of the appellants wife. Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively and one related to his mothers assets. 23 documents, thus, related to the assets of the appellant which are reflected in his declaration of assets made annually by him.11. The learned Special Judge, however, considering the documents on record opined; "But at this stage I find that unless the documents filed by the defence are not formally proved no finding can be given, because it would amount to discussion the merit of the case before conclusion of trial. However, the materials collected in the case diary by the prosecution reveals that there are ground for framing charge under the aforesaid sections against the accused petitioner. Hence, the above petition stands rejected." 12. The learned counsel for the CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. In State of M.P. Vs. Mohanlal Soni [(2000) 6 SCC 338] , this Court has held; "7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed;"As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed." We agree with the said view.See also State of Orissa Vs. Debendra Nath Padhi [(2005) 1 SCC 568] We may, however, add that in this case, this Court is not concerned with other legal principles, which would be applied in determining the issues at that stage. 13. For the reasons aforementioned, there
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8. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. The documents whereupon the appellant intended to rely upon were:(i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets.9. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents whereupon the prosecution would not rely upon.10. The learned Special Judge has noticed that sixteen number of documents had been filed by the appellant together with his application for discharge. The prosecution has also relied upon a large number of documents which were 56 in number, out of which 5 being related to the matter of investigation, have nothing to do with the merit of the matter. Out of the 51 documents, seventeen related to the expenditure purported to have been incurred by the appellant. Four documents related to income of the appellants wife. Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively and one related to his mothers assets. 23 documents, thus, related to the assets of the appellant which are reflected in his declaration of assets made annually by him.11. The learned Special Judge, however, considering the documents on recordat this stage I find that unless the documents filed by the defence are not formally proved no finding can be given, because it would amount to discussion the merit of the case before conclusion of trial. However, the materials collected in the case diary by the prosecution reveals that there are ground for framing charge under the aforesaid sections against the accused petitioner. Hence, the above petition stands rejected.The learned counsel for the CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. In State of M.P. Vs. Mohanlal Soni [(2000) 6 SCC 338] , this Court hasThe crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed;"As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can beagree with the said view.See also State of Orissa Vs. Debendra Nath Padhi [(2005) 1 SCC 568] We may, however, add that in this case, this Court is not concerned with other legal principles, which would be applied in determining the issues at that
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Employees State Insurance Corporation Vs. M/S. Apex Engineering Pvt. Ltd | of appeal, by a majority, held that the two Managing Directors were employees within the meaning of the rule above quoted nonetheless they being Managing Directors of the employer company. In this connection the observations of Upjohn, L.J., constituting the majority of the Court of Appeal deserve to be noted as under: I cannot myself escape from the conclusion that the position of the Boulting Brothers, although anomalous perhaps, is strictly within in wording of R. 7, for they are in fact employees of Charter engaged on the technical side of film production. True it is that as directors, they are not employees, but it cannot, I think, be doubted that a Managing Director may for many purpose properly be regarded as an employee. 24. The decision of the Madras High Court following the aforesaid decisions lays down the correct legal position. Thus even assuming that Shri dhanwate was a principal employer even then in the light of the aforesaid discussion it has to be held that he could have a dual capacity both as a Managing Director on the one hand and as an employee of the company on the other. 25. We may at this stage refer to two decisions to which our attention was invited by learned amicus curiae counsel. A Division Bench of the High Court of Kerala in the case of Employees State Insurance Corporation, Ernakulam v. Victory Tile Works, 44 FJR 304 had to consider whether a person who satisfies the definition of principal employer under Section 2(17) of the Act could simultaneously satisfy the requirements of the definition of the term employee under Section 2(9) of the Act. Subramonian Poti, J. (as he then was), speaking for the Court observed that Employees STate Insurance Act, 1948 is intended to cover all wage-earners whether they are managers, supervisors, clerks, workmen or any other class of employees provided they fall within the definition of employee under Section 2(9) of the Act. It is clear from the scheme of the Act that there is no apparent conflict of interest between the principal employer and the employee and there is no reason why if a person falls within the definition of principal employer he cannot in certain cases be also an employee. In our view, the aforesaid decision squarely falls in line with scheme of the Act and the decisions of other High Courts on the point to which we have made a reference earlier. 26. Now is the time for us to consider the dissenting voice of Calcutta High Court emanating from its decision in the case of Mis Ashok Plastic (P) Ltd. 1988 Lab. I.C. 793. In that case a director of the company who was paid for some remuneration was held not to satisfy the requirements of Section 2(9) of the Act. Now it must be noted that the Calcutta High Court in that case was considering an entirely different fact situation. Being a DIRECTOR of the company some remuneration, was paid to him in connection with his specialised activities. It was found as a fact that he was not employed on remuneration on a regular basis. This distinctive feature itself would rule out the applicability of the said decision to the facts of the present case. However certain observations were made by Sukumar Chakravarty. J., speaking for the Division Bench of the Calcutta High Court in that case in Paragraph 27 of the Report to the following effect: It is true that wages as defined in S.2(22) of the Act means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment express or implied were fulfiled and includes... For taking the character of wages as defined in the above Section, remuneration must be paid or payable in cash to an employee. All remuneration will not take the character of wages within the meaning of Section 2(22) of the Act. The special allowance of Rs. 300 or Rs. 500 as the case may be, which is being paid to the Director, Shri Gupta under the description of remuneration in the instant case is therefore not the wages within the meaning of S.2(22) of the Act. 27. The aforesaid observations, in our view, are not borne out from the express language of Section 2 sub-section (22) of the Act which defines wages to include any type of remuneration paid or payable to an employee, if a person satisfies the definition of the term employee as found in Section 2 sub- section (9) of the Act and is paid remuneration for discharging the extra work assigned to him for earning such remuneration it cannot be said that it would not be wages as wrongly assumed by the High Court in the aforesaid decision in paragraph 24 of the Report. 28. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub- section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defined factory to mean, any premises including the precincts thereof- (a) ....or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on. 29. Before parting with this case we must put on record our high sense of appreciation for the assistance rendered by the amicus curiae advocate Shri Qudri at our request. | 1[ds]16. The aforesaid decision of this Court clearly rules that the Managing Director while acting as such can have dual capacity both as Managing Director on the one hand and as servant or employee of the company on the other. The Division Bench in the impugned judgment with respect was in error in by passing the ratio of the aforesaid decision of this Court by observing that it was a judgment rendered under the Income Tax Act and, therefore, it had no bearing on the scheme of the present Act. We also find that the Division Bench was equally in error when it placed reliance for its decision on the judgment of this Court in the case of Regional Director Employees State Insurance Corporation Trichur v. Ramanuja Match Industries, 1985 (2) SCR 119. In the said decision a Bench of two learned Judges of this Court held that a partner of a firm receiving salary is not an employee within the meaning of Section 2 sub-Section (9) of the Act. Ranganath Misra, J, (as he then was), speaking for this Court held that the partners cannot be held employees of the partnership firm. A partnership firm is not a legal entity and in a partnership firm each partner acts as an agent of the other. The position of a partner qua the firm is thus not that of a master and a servant or employer and employee which concept involved an element of subordination and not that of equality. The partnership business belongs to the partners and each one of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm. It may be that a partner is being paid some remuneration for any special attention, which he devotes but that would not involve any change of status and bring him within the definition of employee17. We fail to appreciate how these observations can ever be pressed in service on the facts of the present in service on the facts of the present case. Respondent-Company is not a partnership firm. It is a separate legal entity. It has chosen one of its directors to act as Managing Director on payment of remuneration for the extra work to be done by him as such. He has to discharge his functions as Managing Director under the supervision of the entire Board of Directors. Thus there is employer-employee relationship between two separate entities. On the one hand is the Managing Director employed as such and on the other respondent-company being a separate legal entity which employs him. In this connection we may also usefully refer to a decision of this Court in the case of Bacha F. Guzdar v. Commissioner of Income - Tax, Bombay, 1955 (1) SCR 876. A Constitution Bench of this Court Speaking through Ghulam Hasan, J., brought out the clear legal distinction between a firm and a company by observing that the position of a shareholder of a company is altogether different from that of a partner of a firm. A company is a juristic entity distinct from the shareholders but a firm is a collective name or an alias for all the partners. Of course the decision was rendered in the light of Income - tax Act wherein the question was whether agricultural income would include the dividend paid to a shareholder of a company18. It must, therefore, be held that the Managing Director of respondent-company could not be treated on par with partner of a partnership firm being given some remuneration for his extra work. The decision of this court in Ramanuja Match Industries, 1985 (2) SCR 119 was, therefore, clearly inapplicable to the facts of the present case and was erroneously pressed in service by the Division Bench of the High Court in the impugned judgment in deciding the appeal of the appellant-Corporation21. In the case of Non-Ferrous Rolling Mills (P) Ltd. v. the Regional Director Employees State Insurance Corporation, Madras, 1977 Lab. I.C. 1706 a learned Single Judge of the High Court of Madras held that a director of a private limited company appointed on remuneration to be the Managing Director of the factory could still be said to be an employee of the company as he was getting wages within the meaning of Section 2 sub-section (22) of the Act. It was also held that even if the director of the company was entrusted with the work of managing the factory and thus could be treated to be principal employer (17) of the Act, he could still be treated as an employee of the company within the meaning of Section 2(9) of the Act as he satisfied all the relevant conditions of the said definition24. The decision of the Madras High Court following the aforesaid decisions lays down the correct legal position. Thus even assuming that Shri dhanwate was a principal employer even then in the light of the aforesaid discussion it has to be held that he could have a dual capacity both as a Managing Director on the one hand and as an employee of the company on the otherIt is clear from the scheme of the Act that there is no apparent conflict of interest between the principal employer and the employee and there is no reason why if a person falls within the definition of principal employer he cannot in certain cases be also an employee. In our view, the aforesaid decision squarely falls in line with scheme of the Act and the decisions of other High Courts on the point to which we have made a reference earlier27. The aforesaid observations, in our view, are not borne out from the express language of Section 2 sub-section (22) of the Act which defines wages to include any type of remuneration paid or payable to an employee, if a person satisfies the definition of the term employee as found in Section 2 sub- section (9) of the Act and is paid remuneration for discharging the extra work assigned to him for earning such remuneration it cannot be said that it would not be wages as wrongly assumed by the High Court in the aforesaid decision in paragraph 24 of the Report28. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub- section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defined factory to mean, any premises including the precincts thereof-(a) ....or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on. | 1 | 7,088 | 1,312 | ### Instruction:
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of appeal, by a majority, held that the two Managing Directors were employees within the meaning of the rule above quoted nonetheless they being Managing Directors of the employer company. In this connection the observations of Upjohn, L.J., constituting the majority of the Court of Appeal deserve to be noted as under: I cannot myself escape from the conclusion that the position of the Boulting Brothers, although anomalous perhaps, is strictly within in wording of R. 7, for they are in fact employees of Charter engaged on the technical side of film production. True it is that as directors, they are not employees, but it cannot, I think, be doubted that a Managing Director may for many purpose properly be regarded as an employee. 24. The decision of the Madras High Court following the aforesaid decisions lays down the correct legal position. Thus even assuming that Shri dhanwate was a principal employer even then in the light of the aforesaid discussion it has to be held that he could have a dual capacity both as a Managing Director on the one hand and as an employee of the company on the other. 25. We may at this stage refer to two decisions to which our attention was invited by learned amicus curiae counsel. A Division Bench of the High Court of Kerala in the case of Employees State Insurance Corporation, Ernakulam v. Victory Tile Works, 44 FJR 304 had to consider whether a person who satisfies the definition of principal employer under Section 2(17) of the Act could simultaneously satisfy the requirements of the definition of the term employee under Section 2(9) of the Act. Subramonian Poti, J. (as he then was), speaking for the Court observed that Employees STate Insurance Act, 1948 is intended to cover all wage-earners whether they are managers, supervisors, clerks, workmen or any other class of employees provided they fall within the definition of employee under Section 2(9) of the Act. It is clear from the scheme of the Act that there is no apparent conflict of interest between the principal employer and the employee and there is no reason why if a person falls within the definition of principal employer he cannot in certain cases be also an employee. In our view, the aforesaid decision squarely falls in line with scheme of the Act and the decisions of other High Courts on the point to which we have made a reference earlier. 26. Now is the time for us to consider the dissenting voice of Calcutta High Court emanating from its decision in the case of Mis Ashok Plastic (P) Ltd. 1988 Lab. I.C. 793. In that case a director of the company who was paid for some remuneration was held not to satisfy the requirements of Section 2(9) of the Act. Now it must be noted that the Calcutta High Court in that case was considering an entirely different fact situation. Being a DIRECTOR of the company some remuneration, was paid to him in connection with his specialised activities. It was found as a fact that he was not employed on remuneration on a regular basis. This distinctive feature itself would rule out the applicability of the said decision to the facts of the present case. However certain observations were made by Sukumar Chakravarty. J., speaking for the Division Bench of the Calcutta High Court in that case in Paragraph 27 of the Report to the following effect: It is true that wages as defined in S.2(22) of the Act means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment express or implied were fulfiled and includes... For taking the character of wages as defined in the above Section, remuneration must be paid or payable in cash to an employee. All remuneration will not take the character of wages within the meaning of Section 2(22) of the Act. The special allowance of Rs. 300 or Rs. 500 as the case may be, which is being paid to the Director, Shri Gupta under the description of remuneration in the instant case is therefore not the wages within the meaning of S.2(22) of the Act. 27. The aforesaid observations, in our view, are not borne out from the express language of Section 2 sub-section (22) of the Act which defines wages to include any type of remuneration paid or payable to an employee, if a person satisfies the definition of the term employee as found in Section 2 sub- section (9) of the Act and is paid remuneration for discharging the extra work assigned to him for earning such remuneration it cannot be said that it would not be wages as wrongly assumed by the High Court in the aforesaid decision in paragraph 24 of the Report. 28. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub- section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defined factory to mean, any premises including the precincts thereof- (a) ....or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on. 29. Before parting with this case we must put on record our high sense of appreciation for the assistance rendered by the amicus curiae advocate Shri Qudri at our request.
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of the other. The position of a partner qua the firm is thus not that of a master and a servant or employer and employee which concept involved an element of subordination and not that of equality. The partnership business belongs to the partners and each one of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm. It may be that a partner is being paid some remuneration for any special attention, which he devotes but that would not involve any change of status and bring him within the definition of employee17. We fail to appreciate how these observations can ever be pressed in service on the facts of the present in service on the facts of the present case. Respondent-Company is not a partnership firm. It is a separate legal entity. It has chosen one of its directors to act as Managing Director on payment of remuneration for the extra work to be done by him as such. He has to discharge his functions as Managing Director under the supervision of the entire Board of Directors. Thus there is employer-employee relationship between two separate entities. On the one hand is the Managing Director employed as such and on the other respondent-company being a separate legal entity which employs him. In this connection we may also usefully refer to a decision of this Court in the case of Bacha F. Guzdar v. Commissioner of Income - Tax, Bombay, 1955 (1) SCR 876. A Constitution Bench of this Court Speaking through Ghulam Hasan, J., brought out the clear legal distinction between a firm and a company by observing that the position of a shareholder of a company is altogether different from that of a partner of a firm. A company is a juristic entity distinct from the shareholders but a firm is a collective name or an alias for all the partners. Of course the decision was rendered in the light of Income - tax Act wherein the question was whether agricultural income would include the dividend paid to a shareholder of a company18. It must, therefore, be held that the Managing Director of respondent-company could not be treated on par with partner of a partnership firm being given some remuneration for his extra work. The decision of this court in Ramanuja Match Industries, 1985 (2) SCR 119 was, therefore, clearly inapplicable to the facts of the present case and was erroneously pressed in service by the Division Bench of the High Court in the impugned judgment in deciding the appeal of the appellant-Corporation21. In the case of Non-Ferrous Rolling Mills (P) Ltd. v. the Regional Director Employees State Insurance Corporation, Madras, 1977 Lab. I.C. 1706 a learned Single Judge of the High Court of Madras held that a director of a private limited company appointed on remuneration to be the Managing Director of the factory could still be said to be an employee of the company as he was getting wages within the meaning of Section 2 sub-section (22) of the Act. It was also held that even if the director of the company was entrusted with the work of managing the factory and thus could be treated to be principal employer (17) of the Act, he could still be treated as an employee of the company within the meaning of Section 2(9) of the Act as he satisfied all the relevant conditions of the said definition24. The decision of the Madras High Court following the aforesaid decisions lays down the correct legal position. Thus even assuming that Shri dhanwate was a principal employer even then in the light of the aforesaid discussion it has to be held that he could have a dual capacity both as a Managing Director on the one hand and as an employee of the company on the otherIt is clear from the scheme of the Act that there is no apparent conflict of interest between the principal employer and the employee and there is no reason why if a person falls within the definition of principal employer he cannot in certain cases be also an employee. In our view, the aforesaid decision squarely falls in line with scheme of the Act and the decisions of other High Courts on the point to which we have made a reference earlier27. The aforesaid observations, in our view, are not borne out from the express language of Section 2 sub-section (22) of the Act which defines wages to include any type of remuneration paid or payable to an employee, if a person satisfies the definition of the term employee as found in Section 2 sub- section (9) of the Act and is paid remuneration for discharging the extra work assigned to him for earning such remuneration it cannot be said that it would not be wages as wrongly assumed by the High Court in the aforesaid decision in paragraph 24 of the Report28. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub- section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defined factory to mean, any premises including the precincts thereof-(a) ....or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on.
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UNION OF INDIA Vs. TECH MAHINDRA BUSINESS SERVICES LTD (FORMERLY KNOWN AS HUTCHINSON GLOBAL SERVICES LTD ) | Kurian Joseph, J. - The whole dispute in this case stems out of a show cause notice issued to the respondent on 27.02.2013, which was challenged before the High Court of Bombay leading to judgment in Writ Petition No.529 of 2013. The relevant paragraph of the judgment reads as follows:- 4. If the petitioner is directed to deposit the amounts determined to be the loss to the DoT/Government of India due to the unauthorized telecom resources being used, it would be bound to do so and its failure to do so would be met with the consequences as per law. There can however, be no question of the petitioner being directed to furnish the undertaking to deposit the said amount as directed by the impugned order dated 27th February, 2013 unconditionally. That would deprive the petitioner the right to challenge the orders if any this regard. The petitioner is at liberty to challenge any order passed by the respondents including an order, if any, regarding the loss on account of the circumstances mentioned above in the impugned order. The impugned order would be subject to orders, if any, of the Court or Tribunal before which it is challenged. 5. The petitioner therefore shall not be required to furnish an unconditional undertaking as demanded. The undertaking shall be subject to the orders, if any, that may be passed in proceedings that the petitioner may adopt to challenge the same. 6. Needless to clarify therefore that the show-cause notice dated 20th January, 2013 remains outstanding. 7. The respondents have acceded to the petitioners request of a personal hearing in respect of the show-cause notice. No coercive action shall be taken for a period of two weeks after the service of the order pursuant to the show-cause notice, if adverse to the petitioner. 2. Pursuant to the judgment of the High Court, the appellant passed a fresh order, after hearing the parties, on 14.07.2014. The relevant portions of the order read as follows:- Establishing end to end bandwidth is licensed through UASL, IP-II, NLD & ILD licenses. Therefore, the company is liable to pay the loss incurred to Government of India due to unauthorized establishment and operation of end to end bandwidth, by the company. Therefore, M/s. Tech Mahindra Business Services Ltd (erstwhile Hutchison Global Services Pvt. Ltd.) is directed to pay a sum of Rs. 6,11,73,460/- (Rupees Six Crore Eleven Lakh Seventy Three Thousand Four Hundred and Sixty only) towards loss incurred to Government of India. This includes license fee, penalty and interest charges as prescribed in UASL license for the period April 2007 to June 2014. Ready reckoner ceiling tariff for STMs notified by TRAI vide notification no.312-7/2004-Eco. Dated 25th April, 2005 has been considered to calculate the license fee payable. Interest (compounded monthly) has been charged @ SBI PLR as on 1st April of the financial year concerned + 2%. Calculation sheet is annexured. The amount shall be paid to CAO, CCA Maharashtra, BSNL Administrative Complex, Juhu Road, Santacruz (West), Mumbai, within 21 days from the date of issue of this demand note and details of payment shall be intimated to this office. 3. This order was challenged before the Telecom Disputes Settlement and Appellate Tribunal (for short, TDSAT), leading to the order dated 01.07.2015, which is under challenge in this appeal. It has been categorically held in the order that ..the respondent has erred in calculating the loss using the ceiling rate provided in an order issued in 2005 in a regime where the rates have been continuously falling. Further, it is not fair to use the highest percentage prescribed under the UASL License to calculate the licensee fee as well as the interest and penalty provided in a UASL license to calculate the total loss. We may note here that if an ordinary subscriber had made a similar mistake, the respondent-DoT could only have imposed fine as provided in the Telegraph Rules. Just because the petitioner happens to have an OSP registration, we do not see how interest and penalties as provided in a UASL license can be imposed on it. 4. Though such a finding was rendered, in order to put a quietus, the Tribunal took the view that interest of justice will be subserved if the respondent was to calculate the loss assuming the same payments as made by the petitioner to M/s. Tata Communications Ltd., for the same bandwidth. For the period prior to the year 2010, the highest payment made for any year (Rs. 12,96,056/- for the year 2012) may be used for all the years. The license fee that M/s. Tata Communications Ltd., would have paid on this amount may be taken as the loss of licensee fee. The respondent may charge an interest of 10% from the date such license fee would have become due. 5. We have heard Ms. V. Mohana, learned senior counsel appearing for the appellant and Mr. Meet Malhotra, learned senior counsel appearing for the respondent(s) extensively. 6. Ultimately, the whole issue revolves round the authority of the appellant to levy penalty and interest. According to the learned senior counsel for the appellant, there are valid notifications in that regard having force of law and also on the quantum. However, we do not find that any such material was available before the Tribunal. Bereft of such information only, the Tribunal ultimately passed the impugned order in the interest of justice. | 1[ds]According to the learned senior counsel for the appellant, there are valid notifications in that regard having force of law and also on the quantum. However, we do not find that any such material was available before the Tribunal. Bereft of such information only, the Tribunal ultimately passed the impugned order in the interest of justice. | 1 | 1,021 | 66 | ### Instruction:
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Kurian Joseph, J. - The whole dispute in this case stems out of a show cause notice issued to the respondent on 27.02.2013, which was challenged before the High Court of Bombay leading to judgment in Writ Petition No.529 of 2013. The relevant paragraph of the judgment reads as follows:- 4. If the petitioner is directed to deposit the amounts determined to be the loss to the DoT/Government of India due to the unauthorized telecom resources being used, it would be bound to do so and its failure to do so would be met with the consequences as per law. There can however, be no question of the petitioner being directed to furnish the undertaking to deposit the said amount as directed by the impugned order dated 27th February, 2013 unconditionally. That would deprive the petitioner the right to challenge the orders if any this regard. The petitioner is at liberty to challenge any order passed by the respondents including an order, if any, regarding the loss on account of the circumstances mentioned above in the impugned order. The impugned order would be subject to orders, if any, of the Court or Tribunal before which it is challenged. 5. The petitioner therefore shall not be required to furnish an unconditional undertaking as demanded. The undertaking shall be subject to the orders, if any, that may be passed in proceedings that the petitioner may adopt to challenge the same. 6. Needless to clarify therefore that the show-cause notice dated 20th January, 2013 remains outstanding. 7. The respondents have acceded to the petitioners request of a personal hearing in respect of the show-cause notice. No coercive action shall be taken for a period of two weeks after the service of the order pursuant to the show-cause notice, if adverse to the petitioner. 2. Pursuant to the judgment of the High Court, the appellant passed a fresh order, after hearing the parties, on 14.07.2014. The relevant portions of the order read as follows:- Establishing end to end bandwidth is licensed through UASL, IP-II, NLD & ILD licenses. Therefore, the company is liable to pay the loss incurred to Government of India due to unauthorized establishment and operation of end to end bandwidth, by the company. Therefore, M/s. Tech Mahindra Business Services Ltd (erstwhile Hutchison Global Services Pvt. Ltd.) is directed to pay a sum of Rs. 6,11,73,460/- (Rupees Six Crore Eleven Lakh Seventy Three Thousand Four Hundred and Sixty only) towards loss incurred to Government of India. This includes license fee, penalty and interest charges as prescribed in UASL license for the period April 2007 to June 2014. Ready reckoner ceiling tariff for STMs notified by TRAI vide notification no.312-7/2004-Eco. Dated 25th April, 2005 has been considered to calculate the license fee payable. Interest (compounded monthly) has been charged @ SBI PLR as on 1st April of the financial year concerned + 2%. Calculation sheet is annexured. The amount shall be paid to CAO, CCA Maharashtra, BSNL Administrative Complex, Juhu Road, Santacruz (West), Mumbai, within 21 days from the date of issue of this demand note and details of payment shall be intimated to this office. 3. This order was challenged before the Telecom Disputes Settlement and Appellate Tribunal (for short, TDSAT), leading to the order dated 01.07.2015, which is under challenge in this appeal. It has been categorically held in the order that ..the respondent has erred in calculating the loss using the ceiling rate provided in an order issued in 2005 in a regime where the rates have been continuously falling. Further, it is not fair to use the highest percentage prescribed under the UASL License to calculate the licensee fee as well as the interest and penalty provided in a UASL license to calculate the total loss. We may note here that if an ordinary subscriber had made a similar mistake, the respondent-DoT could only have imposed fine as provided in the Telegraph Rules. Just because the petitioner happens to have an OSP registration, we do not see how interest and penalties as provided in a UASL license can be imposed on it. 4. Though such a finding was rendered, in order to put a quietus, the Tribunal took the view that interest of justice will be subserved if the respondent was to calculate the loss assuming the same payments as made by the petitioner to M/s. Tata Communications Ltd., for the same bandwidth. For the period prior to the year 2010, the highest payment made for any year (Rs. 12,96,056/- for the year 2012) may be used for all the years. The license fee that M/s. Tata Communications Ltd., would have paid on this amount may be taken as the loss of licensee fee. The respondent may charge an interest of 10% from the date such license fee would have become due. 5. We have heard Ms. V. Mohana, learned senior counsel appearing for the appellant and Mr. Meet Malhotra, learned senior counsel appearing for the respondent(s) extensively. 6. Ultimately, the whole issue revolves round the authority of the appellant to levy penalty and interest. According to the learned senior counsel for the appellant, there are valid notifications in that regard having force of law and also on the quantum. However, we do not find that any such material was available before the Tribunal. Bereft of such information only, the Tribunal ultimately passed the impugned order in the interest of justice.
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According to the learned senior counsel for the appellant, there are valid notifications in that regard having force of law and also on the quantum. However, we do not find that any such material was available before the Tribunal. Bereft of such information only, the Tribunal ultimately passed the impugned order in the interest of justice.
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Prabhakar Dattatraya Gune & Others Vs. Vishnukant Bapurao Urankar & Others | be ignored or brushed aside by us on the spacious plea that some argument or a facet of that argument has not been noticed or dealt with. In the judgment of the Honourable Supreme Court on the point of binding precedent, this is what is held in AIR 2002 SC 1598 (Director of Settlements, A.P. and others v/s M.R.Apparao and another):-7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind (binding) effect as a precedent, ut it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of (on) points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984(2) SCC 402 and 1984 (2) SCC 324).........62 In the above circumstances we do not see any merit in the submissions of Mr. Pradhan and rather they fail to notice the doctrine of occupied field in its correct perspective. That doctrine has been explained in a Constitution Bench Decision of the Honourable Supreme Court reported in (1977) 2 SCC 670(M/s Fatehchand Himmatlal and others v/s State of Maharashtra) in the following words:-62. In the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and Dominion legislation overlap has been considered. If both may overlap and coexist without conflict, neither legislation is ultra vires. But if there is confrontation and conflict the question of paramountcy and occupied field may crop up. It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject matter. The doctrine of occupied field applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can coexist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskinpp. 5254, 1951 Edn).63. We may sum up the legal position to the extent necessary for our case. Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans and money-lending business involving gold ornaments, the State, making a law on a different topic but covering in part the same area of gold loans, must not go into irreconcilable conflicts. Of course, if Article 254(2) can be invoked we will presently examine it then the State law may still prevail since the assent of the President has been obtained for the Debt Act. Thirdly, the doctrine of occupied field does not totally deprive the State Legislature from making any law incidentally referrable to gold. In the event of a plain conflict, the State law must step down unless, as pointed out earlier in the previous passage, Article 254(2) comes to the rescue.63 The above discussion is enough to dispose of the main plea canvassed before us. As far as factual aspects and noted by us in paragraphs 38 and 41, so also, the narration in relation thereto in the preceding paragraphs, it will be open for the Petitioners to raise and substantiate them at an appropriate stage in the pending Special Case. We clarify that all contentions of parties on facts, merits and particularly in relation to attachment of properties of KIFL by the Designated Court and powers of the same visavis the winding up proceedings, are kept open. | 0[ds]59 Hence, we are of the view that the judgment in Baskarans case (supra) covers the entire controversy including on raised before us.60 The judgment of the Honourable Supreme Court which is binding upon us cannot be read in the manner suggested by Mr. Pradhan. That there is a clarification given by the Honourable Supreme Court and which is relied upon by Mr. Pradhan would not carry the matter any further. He relies upon the order dated 11.01.2013 passed by the Honourable Supreme Court in Criminal Miscellaneous Petition No.27050/2012 and connected matters. However, this clarification does not mean that the judgment of the Honourable Supreme Court in the case of Baskaran (supra) is not binding upon us. The order passed by the Honourable Supreme Court giving permission to withdraw the criminal miscellaneous petitions by virtue of the judgment in Baskarans case (supra) does not mean that the said judgment is not binding on this Court. Thus, the order passed by the Honourable Supreme Court on 11.01.2013 may permit the Petitioners and parties like them to take independent proceedings before the forum concerned, but that is referable to paragraph 34 of the judgment in Baskarans case (supra). That paragraph 34 reads as under:34. The learned counsel for the appellant submitted that the appellant was only a bona fide purchaser of some plots of land from one Arun Kumar and Smt.Sulochana, and not from any financial establishment. We are not going into this question as it can be raised in appropriate proceedings. In this case we are only concerned with the constitutional validity of the Tamil Nadu Act.61 The binding force of the judgment of Baskaran (supra) is, therefore, in no way diluted. The judgment of the Honourable Supreme Court and which lays down the law, binds everybody by virtue of Article 141 of the Constitution of India. When the Honourable Supreme Court has considered pari materia provisions in the Tamil Nadu Act and has held that to be constitutional and valid, then, such judgment of the Honourable Supreme Court cannot be ignored or brushed aside by us on the spacious plea that some argument or a facet of that argument has not been noticed or dealt with. In the judgment of the Honourable Supreme Court on the point of binding precedent, this is what is held in AIR 2002 SC 1598 (Director of Settlements, A.P. and others v/s M.R.Apparao andSo far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind (binding) effect as a precedent, ut it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of (on) points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984(2) SCC 402 and 1984 (2) SCC 324).........62 In the above circumstances we do not see any merit in the submissions of Mr. Pradhan and rather they fail to notice the doctrine of occupied field in its correct perspective. That doctrine has been explained in a Constitution Bench Decision of the Honourable Supreme Court reported in (1977) 2 SCC 670(M/s Fatehchand Himmatlal and others v/s State of Maharashtra) in the followingIn the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and Dominion legislation overlap has been considered. If both may overlap and coexist without conflict, neither legislation is ultra vires. But if there is confrontation and conflict the question of paramountcy and occupied field may crop up. It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject matter. The doctrine of occupied field applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can coexist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskinpp. 5254, 1951 Edn).63. We may sum up the legal position to the extent necessary for our case. Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans andbusiness involving gold ornaments, the State, making a law on a different topic but covering in part the same area of gold loans, must not go into irreconcilable conflicts. Of course, if Article 254(2) can be invokedwe will presently examine itthen the State law may still prevail since the assent of the President has been obtained for the Debt Act. Thirdly, the doctrine of occupied field does not totally deprive the State Legislature from making any law incidentally referrable to gold. In the event of a plain conflict, the State law must step down unless, as pointed out earlier in the previous passage, Article 254(2) comes to the rescue.63 The above discussion is enough to dispose of the main plea canvassed before us. As far as factual aspects and noted by us in paragraphs 38 and 41, so also, the narration in relation thereto in the preceding paragraphs, it will be open for the Petitioners to raise and substantiate them at an appropriate stage in the pending Special Case. We clarify that all contentions of parties on facts, merits and particularly in relation to attachment of properties of KIFL by the Designated Court and powers of the same visavis the winding up proceedings, are kept open. | 0 | 14,122 | 1,465 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
be ignored or brushed aside by us on the spacious plea that some argument or a facet of that argument has not been noticed or dealt with. In the judgment of the Honourable Supreme Court on the point of binding precedent, this is what is held in AIR 2002 SC 1598 (Director of Settlements, A.P. and others v/s M.R.Apparao and another):-7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind (binding) effect as a precedent, ut it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of (on) points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984(2) SCC 402 and 1984 (2) SCC 324).........62 In the above circumstances we do not see any merit in the submissions of Mr. Pradhan and rather they fail to notice the doctrine of occupied field in its correct perspective. That doctrine has been explained in a Constitution Bench Decision of the Honourable Supreme Court reported in (1977) 2 SCC 670(M/s Fatehchand Himmatlal and others v/s State of Maharashtra) in the following words:-62. In the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and Dominion legislation overlap has been considered. If both may overlap and coexist without conflict, neither legislation is ultra vires. But if there is confrontation and conflict the question of paramountcy and occupied field may crop up. It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject matter. The doctrine of occupied field applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can coexist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskinpp. 5254, 1951 Edn).63. We may sum up the legal position to the extent necessary for our case. Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans and money-lending business involving gold ornaments, the State, making a law on a different topic but covering in part the same area of gold loans, must not go into irreconcilable conflicts. Of course, if Article 254(2) can be invoked we will presently examine it then the State law may still prevail since the assent of the President has been obtained for the Debt Act. Thirdly, the doctrine of occupied field does not totally deprive the State Legislature from making any law incidentally referrable to gold. In the event of a plain conflict, the State law must step down unless, as pointed out earlier in the previous passage, Article 254(2) comes to the rescue.63 The above discussion is enough to dispose of the main plea canvassed before us. As far as factual aspects and noted by us in paragraphs 38 and 41, so also, the narration in relation thereto in the preceding paragraphs, it will be open for the Petitioners to raise and substantiate them at an appropriate stage in the pending Special Case. We clarify that all contentions of parties on facts, merits and particularly in relation to attachment of properties of KIFL by the Designated Court and powers of the same visavis the winding up proceedings, are kept open.
### Response:
0
### Explanation:
Honourable Supreme Court cannot be ignored or brushed aside by us on the spacious plea that some argument or a facet of that argument has not been noticed or dealt with. In the judgment of the Honourable Supreme Court on the point of binding precedent, this is what is held in AIR 2002 SC 1598 (Director of Settlements, A.P. and others v/s M.R.Apparao andSo far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind (binding) effect as a precedent, ut it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of (on) points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984(2) SCC 402 and 1984 (2) SCC 324).........62 In the above circumstances we do not see any merit in the submissions of Mr. Pradhan and rather they fail to notice the doctrine of occupied field in its correct perspective. That doctrine has been explained in a Constitution Bench Decision of the Honourable Supreme Court reported in (1977) 2 SCC 670(M/s Fatehchand Himmatlal and others v/s State of Maharashtra) in the followingIn the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and Dominion legislation overlap has been considered. If both may overlap and coexist without conflict, neither legislation is ultra vires. But if there is confrontation and conflict the question of paramountcy and occupied field may crop up. It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject matter. The doctrine of occupied field applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can coexist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskinpp. 5254, 1951 Edn).63. We may sum up the legal position to the extent necessary for our case. Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans andbusiness involving gold ornaments, the State, making a law on a different topic but covering in part the same area of gold loans, must not go into irreconcilable conflicts. Of course, if Article 254(2) can be invokedwe will presently examine itthen the State law may still prevail since the assent of the President has been obtained for the Debt Act. Thirdly, the doctrine of occupied field does not totally deprive the State Legislature from making any law incidentally referrable to gold. In the event of a plain conflict, the State law must step down unless, as pointed out earlier in the previous passage, Article 254(2) comes to the rescue.63 The above discussion is enough to dispose of the main plea canvassed before us. As far as factual aspects and noted by us in paragraphs 38 and 41, so also, the narration in relation thereto in the preceding paragraphs, it will be open for the Petitioners to raise and substantiate them at an appropriate stage in the pending Special Case. We clarify that all contentions of parties on facts, merits and particularly in relation to attachment of properties of KIFL by the Designated Court and powers of the same visavis the winding up proceedings, are kept open.
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Devki Alias Kala Vs. The State Of Haryana | KRISHNA IYER, J. 1. Parvati, an unsophisticated girl of 17 was wending her way home at about sunset along a public street in the artless town of Sitalpur in Bihar when Smt. Devki, the petitioner before us, with diabolic design, swooped down and snatched her into a taxi-cab and blized away. The weeping victim was medicated into unconsciousness, remove d to Dhanbad and further on, to destination Haryana. Tragically, where tourists abound, satellite industries in female flesh flourish, unless the State crusades with militant zeal to stamp out this terrible vice. Anyway, Parvati, by now en slaved in a village villa. was offered for marital sale to affluent lecherous youths. The damsel in distress desperately escaped through a half-ajar door and eventually landed in a police station. The police investigation unravelled the pathetic story and ended up in a case, conviction, appeal, confirmation and, finally, in this special leave petition to this Court which is the last refuge of every vanquished litigant. 2. Confronted by concurrent findings of guilt, counsel for the petitioner gave up his attack on the conviction and concentrated his fire on the sentence, which, in this case, was three years rigorous imprisonment. For what ? For abducting a teenage girl and forcing her into sexual submission with commercial object, a racket which has become an enormous national menace, notwithstanding the constitutional concern for the weaker sex. Counsel dared to urge that the Probation of Offenders Act should be extended to this abominable culprit who had shown sufficient expertise in the art of abduction, seduction and sale of girls to others who offer a tempting price. The features of this case show that the petitioner suddenly descended in a taxi-cab and kidnapped the young woman, and when she cried out, administered the potion which rendered her unconscious. Furthermore, a well layout plan is discernible when we see the geographical spread of the crime. From a small town in Bihar, the girl is despatched to Dhanbad and from there, via Delhi, to Haryana, lodged in a house where young men were asked to view her for obvious immoral purposes. It is an insulting stultification of the amelioratory legislation viz. Probation of Offenders Act to extend its considerate provisions to such anti-social, specialist criminals. | 0[ds]The features of this case show that the petitioner suddenly descended in a taxi-cab and kidnapped the young woman, and when she cried out, administered the potion which rendered her unconscious. Furthermore, a well layout plan is discernible when we see the geographical spread of the crime. From a small town in Bihar, the girl is despatched to Dhanbad and from there, via Delhi, to Haryana, lodged in a house where young men were asked to view her for obvious immoral purposes. It is an insulting stultification of the amelioratory legislation viz. Probation of Offenders Act to extend its considerate provisions to such anti-social, specialist criminals. | 0 | 426 | 123 | ### 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:
KRISHNA IYER, J. 1. Parvati, an unsophisticated girl of 17 was wending her way home at about sunset along a public street in the artless town of Sitalpur in Bihar when Smt. Devki, the petitioner before us, with diabolic design, swooped down and snatched her into a taxi-cab and blized away. The weeping victim was medicated into unconsciousness, remove d to Dhanbad and further on, to destination Haryana. Tragically, where tourists abound, satellite industries in female flesh flourish, unless the State crusades with militant zeal to stamp out this terrible vice. Anyway, Parvati, by now en slaved in a village villa. was offered for marital sale to affluent lecherous youths. The damsel in distress desperately escaped through a half-ajar door and eventually landed in a police station. The police investigation unravelled the pathetic story and ended up in a case, conviction, appeal, confirmation and, finally, in this special leave petition to this Court which is the last refuge of every vanquished litigant. 2. Confronted by concurrent findings of guilt, counsel for the petitioner gave up his attack on the conviction and concentrated his fire on the sentence, which, in this case, was three years rigorous imprisonment. For what ? For abducting a teenage girl and forcing her into sexual submission with commercial object, a racket which has become an enormous national menace, notwithstanding the constitutional concern for the weaker sex. Counsel dared to urge that the Probation of Offenders Act should be extended to this abominable culprit who had shown sufficient expertise in the art of abduction, seduction and sale of girls to others who offer a tempting price. The features of this case show that the petitioner suddenly descended in a taxi-cab and kidnapped the young woman, and when she cried out, administered the potion which rendered her unconscious. Furthermore, a well layout plan is discernible when we see the geographical spread of the crime. From a small town in Bihar, the girl is despatched to Dhanbad and from there, via Delhi, to Haryana, lodged in a house where young men were asked to view her for obvious immoral purposes. It is an insulting stultification of the amelioratory legislation viz. Probation of Offenders Act to extend its considerate provisions to such anti-social, specialist criminals.
### Response:
0
### Explanation:
The features of this case show that the petitioner suddenly descended in a taxi-cab and kidnapped the young woman, and when she cried out, administered the potion which rendered her unconscious. Furthermore, a well layout plan is discernible when we see the geographical spread of the crime. From a small town in Bihar, the girl is despatched to Dhanbad and from there, via Delhi, to Haryana, lodged in a house where young men were asked to view her for obvious immoral purposes. It is an insulting stultification of the amelioratory legislation viz. Probation of Offenders Act to extend its considerate provisions to such anti-social, specialist criminals.
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Inderjeet Singh Sial And Anr Vs. M/S. Karam Chand Thapar And Ors | guaranteed above.(v) If the Vendee Company at any time desire to transfer its rights and title in the colliery properties hereby conveyed Vendee hereby undertakes to keep the said Vendor fully and effective covered, to his satisfaction, to the extent of his (Vendors) Royally rights, the transferee agreeing and coventing to comply with these several stipulations and obligations as embodied in thee presents". 11. It is manifest that four reasons have been advanced by the High Court to upset the judgment and decree of the trial Court. These are (i) that deed Ex. D-5 was drafted as a formal document apparently by some lawyer and parties thereto were persons quite conversant with mining lease; and consequently with the meaning of the "consideration" and "royalty"; (ii) the word "royalty" used in the document must be understood the way it is used and understood by the persons in the mining business; (iii) the consideration money was Rs. 30,000/- only as the endorsement of registration on the deed indicates and that was the total consideration; and (iv) in the plaint distinction has been kept between the word "consideration and "royalty" and so royalty could to be part of the consideration.12. With respect we do not agree with any of those reasons. It may be true that document Ex. D-5 written in English language, may have been prepared by a lawyer and was entered into between persons conversant with the vocabulary employed in mining leases. Yet these factors per se cannot conclude the matter that the word "royalty" used in the document was meant to be royalty as such. If intelligence and responsibility is to be attributed to the draftsman and the contracting parties for using the word "royalty" in that technical sense, then it cannot be imagined that they would have overlooked the status of the contracting parties inter se. We cannot thus assume that they were well versed in one aspect and not in the other. Strictly speaking, had the draftsman and the signatories to the deed meant "royalty" as such, then they could not have omitted to identify who had the sovereign prerogative or the State part to play. The word "royalty" thus, in the deed was used in a loose sense so as to convey liability to make periodic payment to the assignor for the period during which the lease would subsist; payment dependent on the coal gotten and extracted in quantities or on despatch. We label therefore to construe document Ex. D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word "royalty" was perhaps more handy for the authors to be employed for an arrangement; like this, so as to ensure periodic payments. In nor event could the parties be put to blame for using the word "royalty" as if abrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed.13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title. One needs to go to have value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written, may, more often than not tend to be faulty. More so in a language which is not, the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substances when the contracting parties and the draftsman are assumed to have known that the word "royalty" is meant to be employed to secure for the State something upon out what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the sovereign or the State, and on that basis have the document voided. Therefore, we are of the view that the reword "royalty" was used in the deed misdescriptively and was really meant to cover an important item of the consideration due for future payments. Section 54 of the Transfer of Property Act clearly postulates that sale is a transfer of ownership in exchange for a price paid or promised to be paid or part paid and part promised. In either situation title to the property would get transferred. This, in our view, demolishes the first two reasons. 14. On the third reason about the endorsement of the deed showing consideration of Rs. 30,000/- only which was part of the consideration covered in the deed, the endorsement itself is the answer. The stamp reads: "......... who is personally known to me, admits execution of the so-called conveyance deed and receipt of consideration in full/part Rs. 30,000/- (thirty thousand only) as per document...." Whereas the Sub-Registrar has scored off whatever was necessary in the alternate words provided in the stamp, he has nowhere cancelled the inappropriate word to signify whether Rs. 30,000/- was full consideration or part consideration. Rather he has left the consideration to be of the nature as reflected in the document. The endorsement per se thus cannot be so read so as to rule that Rs. 30,000/- was the total consideration. It was plainly a part payment and the balance consideration was meant to be periodically paid in the sum and manner stipulated in the deed. A fortiori on such analysis the fourth reason also fails because when in the deed the words "consideration" and "royalty" have been employed to convey a meaning the same has been used in the plaint to convey the same meaning as originally conceived of by the contracting parties." | 1[ds]11. It is manifest that four reasons have been advanced by the High Court to upset the judgment and decree of the trial Court. These are (i) that deed Ex. D-5 was drafted as a formal document apparently by some lawyer and parties thereto were persons quite conversant with mining lease; and consequently with the meaning of the "consideration" and "royalty"; (ii) the word "royalty" used in the document must be understood the way it is used and understood by the persons in the mining business; (iii) the consideration money was Rs. 30,000/- only as the endorsement of registration on the deed indicates and that was the total consideration; and (iv) in the plaint distinction has been kept between the word "consideration and "royalty" and so royalty could to be part of the consideration.12. With respect we do not agree with any of those reasons. It may be true that document Ex. D-5 written in English language, may have been prepared by a lawyer and was entered into between persons conversant with the vocabulary employed in mining leases. Yet these factors per se cannot conclude the matter that the word "royalty" used in the document was meant to be royalty as such. If intelligence and responsibility is to be attributed to the draftsman and the contracting parties for using the word "royalty" in that technical sense, then it cannot be imagined that they would have overlooked the status of the contracting parties inter se. We cannot thus assume that they were well versed in one aspect and not in the other. Strictly speaking, had the draftsman and the signatories to the deed meant "royalty" as such, then they could not have omitted to identify who had the sovereign prerogative or the State part to play. The word "royalty" thus, in the deed was used in a loose sense so as to convey liability to make periodic payment to the assignor for the period during which the lease would subsist; payment dependent on the coal gotten and extracted in quantities or on despatch. We label therefore to construe document Ex. D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word "royalty" was perhaps more handy for the authors to be employed for an arrangement; like this, so as to ensure periodic payments. In nor event could the parties be put to blame for using the word "royalty" as if abrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed.13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title. One needs to go to have value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written, may, more often than not tend to be faulty. More so in a language which is not, the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substances when the contracting parties and the draftsman are assumed to have known that the word "royalty" is meant to be employed to secure for the State something upon out what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the sovereign or the State, and on that basis have the document voided. Therefore, we are of the view that the reword "royalty" was used in the deed misdescriptively and was really meant to cover an important item of the consideration due for future payments. Section 54 of the Transfer of Property Act clearly postulates that sale is a transfer of ownership in exchange for a price paid or promised to be paid or part paid and part promised. In either situation title to the property would get transferred. This, in our view, demolishes the first two reasons. | 1 | 3,553 | 829 | ### 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:
guaranteed above.(v) If the Vendee Company at any time desire to transfer its rights and title in the colliery properties hereby conveyed Vendee hereby undertakes to keep the said Vendor fully and effective covered, to his satisfaction, to the extent of his (Vendors) Royally rights, the transferee agreeing and coventing to comply with these several stipulations and obligations as embodied in thee presents". 11. It is manifest that four reasons have been advanced by the High Court to upset the judgment and decree of the trial Court. These are (i) that deed Ex. D-5 was drafted as a formal document apparently by some lawyer and parties thereto were persons quite conversant with mining lease; and consequently with the meaning of the "consideration" and "royalty"; (ii) the word "royalty" used in the document must be understood the way it is used and understood by the persons in the mining business; (iii) the consideration money was Rs. 30,000/- only as the endorsement of registration on the deed indicates and that was the total consideration; and (iv) in the plaint distinction has been kept between the word "consideration and "royalty" and so royalty could to be part of the consideration.12. With respect we do not agree with any of those reasons. It may be true that document Ex. D-5 written in English language, may have been prepared by a lawyer and was entered into between persons conversant with the vocabulary employed in mining leases. Yet these factors per se cannot conclude the matter that the word "royalty" used in the document was meant to be royalty as such. If intelligence and responsibility is to be attributed to the draftsman and the contracting parties for using the word "royalty" in that technical sense, then it cannot be imagined that they would have overlooked the status of the contracting parties inter se. We cannot thus assume that they were well versed in one aspect and not in the other. Strictly speaking, had the draftsman and the signatories to the deed meant "royalty" as such, then they could not have omitted to identify who had the sovereign prerogative or the State part to play. The word "royalty" thus, in the deed was used in a loose sense so as to convey liability to make periodic payment to the assignor for the period during which the lease would subsist; payment dependent on the coal gotten and extracted in quantities or on despatch. We label therefore to construe document Ex. D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word "royalty" was perhaps more handy for the authors to be employed for an arrangement; like this, so as to ensure periodic payments. In nor event could the parties be put to blame for using the word "royalty" as if abrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed.13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title. One needs to go to have value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written, may, more often than not tend to be faulty. More so in a language which is not, the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substances when the contracting parties and the draftsman are assumed to have known that the word "royalty" is meant to be employed to secure for the State something upon out what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the sovereign or the State, and on that basis have the document voided. Therefore, we are of the view that the reword "royalty" was used in the deed misdescriptively and was really meant to cover an important item of the consideration due for future payments. Section 54 of the Transfer of Property Act clearly postulates that sale is a transfer of ownership in exchange for a price paid or promised to be paid or part paid and part promised. In either situation title to the property would get transferred. This, in our view, demolishes the first two reasons. 14. On the third reason about the endorsement of the deed showing consideration of Rs. 30,000/- only which was part of the consideration covered in the deed, the endorsement itself is the answer. The stamp reads: "......... who is personally known to me, admits execution of the so-called conveyance deed and receipt of consideration in full/part Rs. 30,000/- (thirty thousand only) as per document...." Whereas the Sub-Registrar has scored off whatever was necessary in the alternate words provided in the stamp, he has nowhere cancelled the inappropriate word to signify whether Rs. 30,000/- was full consideration or part consideration. Rather he has left the consideration to be of the nature as reflected in the document. The endorsement per se thus cannot be so read so as to rule that Rs. 30,000/- was the total consideration. It was plainly a part payment and the balance consideration was meant to be periodically paid in the sum and manner stipulated in the deed. A fortiori on such analysis the fourth reason also fails because when in the deed the words "consideration" and "royalty" have been employed to convey a meaning the same has been used in the plaint to convey the same meaning as originally conceived of by the contracting parties."
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11. It is manifest that four reasons have been advanced by the High Court to upset the judgment and decree of the trial Court. These are (i) that deed Ex. D-5 was drafted as a formal document apparently by some lawyer and parties thereto were persons quite conversant with mining lease; and consequently with the meaning of the "consideration" and "royalty"; (ii) the word "royalty" used in the document must be understood the way it is used and understood by the persons in the mining business; (iii) the consideration money was Rs. 30,000/- only as the endorsement of registration on the deed indicates and that was the total consideration; and (iv) in the plaint distinction has been kept between the word "consideration and "royalty" and so royalty could to be part of the consideration.12. With respect we do not agree with any of those reasons. It may be true that document Ex. D-5 written in English language, may have been prepared by a lawyer and was entered into between persons conversant with the vocabulary employed in mining leases. Yet these factors per se cannot conclude the matter that the word "royalty" used in the document was meant to be royalty as such. If intelligence and responsibility is to be attributed to the draftsman and the contracting parties for using the word "royalty" in that technical sense, then it cannot be imagined that they would have overlooked the status of the contracting parties inter se. We cannot thus assume that they were well versed in one aspect and not in the other. Strictly speaking, had the draftsman and the signatories to the deed meant "royalty" as such, then they could not have omitted to identify who had the sovereign prerogative or the State part to play. The word "royalty" thus, in the deed was used in a loose sense so as to convey liability to make periodic payment to the assignor for the period during which the lease would subsist; payment dependent on the coal gotten and extracted in quantities or on despatch. We label therefore to construe document Ex. D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word "royalty" was perhaps more handy for the authors to be employed for an arrangement; like this, so as to ensure periodic payments. In nor event could the parties be put to blame for using the word "royalty" as if abrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed.13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title. One needs to go to have value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written, may, more often than not tend to be faulty. More so in a language which is not, the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substances when the contracting parties and the draftsman are assumed to have known that the word "royalty" is meant to be employed to secure for the State something upon out what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the sovereign or the State, and on that basis have the document voided. Therefore, we are of the view that the reword "royalty" was used in the deed misdescriptively and was really meant to cover an important item of the consideration due for future payments. Section 54 of the Transfer of Property Act clearly postulates that sale is a transfer of ownership in exchange for a price paid or promised to be paid or part paid and part promised. In either situation title to the property would get transferred. This, in our view, demolishes the first two reasons.
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S. S. Shetty Vs. Bharat Nidhi, Ltd | to take into account the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the workman and even of the employer himself ceasing to exist or of the workman being awarded various benefits including reinstatement under the terms of future award by Industrial Tribunals in the event of industrial disputes arising between the parties in the future.19. Even in the case of ordinary contracts between master and servant such considerations have been imported by the Courts. The observations of Greer, L. J. inSalt v. Power Plant Co., Ltd.,1936-3 ALL E R 322 at p. 325 (B), are apposite in this context."This is the case of a man who had, according to my view, got an engagement which was to last for life, or at any rate for the joint lives of himself and the company, but I think for his life, because I think there are authorities to the effect that if a company winds up, that is dismissal of the servants, and they can they prove for damages and get their dividend, whatever it may happen to be. Fortunately, the company has not been wound up, but in estimating the damages, of course the tribunal estimating them will have to take into consideration the fact that at any time after June 26, 1935, it might have appeared to the directors that they had good reasons for terminating the plaintiffs services, reasons connected with his conduct. The present value of what his salary would be for the rest of his life must also be considered, and there must also be taken into account the fact that he is a man who might at any time terminate his service by his life coming to an end, and other matters with which I need not deal."20. These and similar considerations would equally be germane in the matter of the computation in terms of money of the value of the benefit of reinstatement which was awarded to the appellant in the case before us.21. Turning therefore to the terms and conditions of employment we find that the respondent had enacted Bye-laws for the employees of Bharat Bank Ltd., which were applicable to the appellant. Bye-law 9 provides that tan employee may resign from the service of the respondent by giving one months notice.Bye-law 11 provides that the respondent shall have the option to terminate an employees service on giving him the same notice as he is required to give to the respondent under rule No. 9 (which can be served even when the employee may be on leave), or by paying him salary for the notice period in lieu of notice, in the absence of an agreement to the contrary, provided that no notice shall be necessary when he is dismissed on account of misconduct, dishonestly, gross-negligence insubordination or disregard of any of the standing instructions.Bye-law 13 lays down that every employee is required to retire on attaining the age of 55 years. He may be retained in service after that age only with the express sanction of the authorities but such extension of service will not exceed more than 2 years at a time.22. If regard be had to these terms and conditions, it was possible for the respondent to terminate the service of the appellant by paying him one months salary in lieu of notice. If there was nothing more, the appellant would have been entitled only to that amount as and by way of compensation for non-implementation of the direction for reinstatement. There was however a finding recorded by the Industrial Tribunal which made the award dated December 5, 1950 that the respondent had been guilty of unfair labour practice and victimization and the ordinary right, which the respondent would have been in a position to exercise, of terminating the service of the appellant on giving him one months salary in lieu of notice could not be availed of by the respondent. On an industrial dispute raised by the appellant on the respondents terminating his service at any time in the future, it would be open to the Industrial Tribunal to go into the question whether the termination of the appellants service by the respondent was justified and if the Industrial Tribunal came to an adverse conclusion, it would be open to it to reinstate the appellant in the service of the respondent with all back salary, allowances, etc. Even if the respondent wanted to retrench the appellant, the same considerations would arise with a possible result against the respondent. On the other hand, there was also a possibility of the respondent being in the right and being entitled to lawfully terminate the service of the appellant in which event of course the appellant would be without any redress whatever. In computing the money value of the benefit of reinstatement the Industrial Tribunal would also have to take into account the present value of what his salary, benefits, etc., would be till he attained the age of superannuation and the value of such benefits would have to be computed as from the date when such reinstatement was ordered under the terms of the award.23. Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all relevant factors pro and con. We have ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appellant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only). | 1[ds]We are of opinion that these circumstances cannot be availed of by the respondent. It is no doubt true that the respondent transferred its liabilities and equivalent assets to the Punjab National Bank Ltd., some time in March 1951, The correspondence which was carried on between the appellant and the respondent however shows that in spite of such transfer to the Punjab National Bank Ltd., and the change of the name of the respondent from the Bharat Bank Ltd., to Bharat Nidhi Ltd., the respondent never contended that Bharat Nidhi Ltd., was not in a position to reinstate the appellant in its service.Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all relevant factors pro andhave ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appellant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only). | 1 | 6,095 | 236 | ### 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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to take into account the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, the possibility of retrenchment by the employer or resignation or retirement by the workman and even of the employer himself ceasing to exist or of the workman being awarded various benefits including reinstatement under the terms of future award by Industrial Tribunals in the event of industrial disputes arising between the parties in the future.19. Even in the case of ordinary contracts between master and servant such considerations have been imported by the Courts. The observations of Greer, L. J. inSalt v. Power Plant Co., Ltd.,1936-3 ALL E R 322 at p. 325 (B), are apposite in this context."This is the case of a man who had, according to my view, got an engagement which was to last for life, or at any rate for the joint lives of himself and the company, but I think for his life, because I think there are authorities to the effect that if a company winds up, that is dismissal of the servants, and they can they prove for damages and get their dividend, whatever it may happen to be. Fortunately, the company has not been wound up, but in estimating the damages, of course the tribunal estimating them will have to take into consideration the fact that at any time after June 26, 1935, it might have appeared to the directors that they had good reasons for terminating the plaintiffs services, reasons connected with his conduct. The present value of what his salary would be for the rest of his life must also be considered, and there must also be taken into account the fact that he is a man who might at any time terminate his service by his life coming to an end, and other matters with which I need not deal."20. These and similar considerations would equally be germane in the matter of the computation in terms of money of the value of the benefit of reinstatement which was awarded to the appellant in the case before us.21. Turning therefore to the terms and conditions of employment we find that the respondent had enacted Bye-laws for the employees of Bharat Bank Ltd., which were applicable to the appellant. Bye-law 9 provides that tan employee may resign from the service of the respondent by giving one months notice.Bye-law 11 provides that the respondent shall have the option to terminate an employees service on giving him the same notice as he is required to give to the respondent under rule No. 9 (which can be served even when the employee may be on leave), or by paying him salary for the notice period in lieu of notice, in the absence of an agreement to the contrary, provided that no notice shall be necessary when he is dismissed on account of misconduct, dishonestly, gross-negligence insubordination or disregard of any of the standing instructions.Bye-law 13 lays down that every employee is required to retire on attaining the age of 55 years. He may be retained in service after that age only with the express sanction of the authorities but such extension of service will not exceed more than 2 years at a time.22. If regard be had to these terms and conditions, it was possible for the respondent to terminate the service of the appellant by paying him one months salary in lieu of notice. If there was nothing more, the appellant would have been entitled only to that amount as and by way of compensation for non-implementation of the direction for reinstatement. There was however a finding recorded by the Industrial Tribunal which made the award dated December 5, 1950 that the respondent had been guilty of unfair labour practice and victimization and the ordinary right, which the respondent would have been in a position to exercise, of terminating the service of the appellant on giving him one months salary in lieu of notice could not be availed of by the respondent. On an industrial dispute raised by the appellant on the respondents terminating his service at any time in the future, it would be open to the Industrial Tribunal to go into the question whether the termination of the appellants service by the respondent was justified and if the Industrial Tribunal came to an adverse conclusion, it would be open to it to reinstate the appellant in the service of the respondent with all back salary, allowances, etc. Even if the respondent wanted to retrench the appellant, the same considerations would arise with a possible result against the respondent. On the other hand, there was also a possibility of the respondent being in the right and being entitled to lawfully terminate the service of the appellant in which event of course the appellant would be without any redress whatever. In computing the money value of the benefit of reinstatement the Industrial Tribunal would also have to take into account the present value of what his salary, benefits, etc., would be till he attained the age of superannuation and the value of such benefits would have to be computed as from the date when such reinstatement was ordered under the terms of the award.23. Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all relevant factors pro and con. We have ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appellant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only).
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We are of opinion that these circumstances cannot be availed of by the respondent. It is no doubt true that the respondent transferred its liabilities and equivalent assets to the Punjab National Bank Ltd., some time in March 1951, The correspondence which was carried on between the appellant and the respondent however shows that in spite of such transfer to the Punjab National Bank Ltd., and the change of the name of the respondent from the Bharat Bank Ltd., to Bharat Nidhi Ltd., the respondent never contended that Bharat Nidhi Ltd., was not in a position to reinstate the appellant in its service.Having regard to the considerations detailed above it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude and the best that any Tribunal or Court would do under the circumstances would be to make as correct an estimate as is possible bearing of course in mind all relevant factors pro andhave ourselves devoted very anxious thought to this aspect of the matter and we have come to the conclusion that having regard to all the circumstances of the case it would be reasonable to compute the benefit of reinstatement which was awarded to the appellant at an amount of Rs. 12,500 (Rupees twelve thousand and five hundred only).
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Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress | there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee. These, however, are illustrative and not exhaustive. therefore, each case of the conferment of the power involved should be decided on the aforesaid basis. 120. I am conscious that clear intention as indicated in a legislation cannot be permitted to be defeated by means of construction. It has been said that if the legislature has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. I do not agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the in articulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference to Elliott Ashton Welsh, II v. United States 398 US 333 : 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision. In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations. 121. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. Reference was made to the decision of this Court in R.M.D.C.s case (supra). I am unable to accept this contention. It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the said Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the conditions indicated above as a necessary corollary or consequence of that power. It is also not reading to the legislature conditions which were not there in the second proviso Article 311(2) of the Constitution. In view of the ratio of the five-judge Bench decision of this Court in Tulsirams case (supra), which had examined all the relevant decisions, I am unable to accept the submission of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach. 122. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution. 123. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry. 124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws. | 0[ds]It may be mentioned that under the general law of contract of employment, which was commonly known as the law of master and servant, which is not termed as law of employer and employee, whether the contract of service is for a fixed period or not, if it contained a provision for its termination by notice, it could be so terminated. If there was no provision for giving notice and the contract was not for a fixed period, the law implied an obligation to give a reasonable notice. Where no notice in the first case or no reasonable notice in the second case was given and the contract was wrongfully terminated, such wrongful termination would give rise to a claim for damages. In this connection, reference may be made to the observations of this Court in the five-judge bench decision in Union of India and Anr. v. Tulsi Ram Patel [1985] Supp. 2 SCR 131. This is also the position at common law15. The relationship between a statutory corporation and its employees is normally governed by the relevant rules, regulations and standing orders. A statutory Corporation is "State" within the meaning of Article 12 of the Constitution and its action is subject to judicial review in certain cases and certain circumstances. In the facts and circumstances of these cases, we have proceeded on that basis and we are of the opinion that it is the correct basis. The exercise of such power under regulations similar to the one impugned which has been upheld in various types of cases are instructive in their variety. It may be mentioned that the exercise of power under the very same Regulation 9(b) was upheld by the Court in a matter, wherein in an action by the employee of D.T.C., this Court in Delhi Transport Corporation Undertaking v. Balbir Saran Goel (1970)IILLJ20SC held that even if the employees of the respondent thought that he was a cantankerous man and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9(b) and it was not necessary to dismiss by way of punishment for misconduct16. Reliance was placed on this decision by the High Court in the Judgment under appeal. The High Court in our opinion rightly pointed out, however, that the decision was on a different basis and could not be availed of in deciding controversy involved in the present determination17. It may be mentioned that the case of civil servants is, however, governed by their special constitutional position which accords them status; the legal relationship (between the Government and its servants) is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of state are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. See the observations of this Court in Roshan Lal Tandon v. Union of India (1968)ILLJ576SC D-E. But even then the services of a temporary civil servant (although entitled to the protection of Article 311 of the Constitution) is subject to termination by notice. But beside the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. See the observations of this Court in Champak Lal Chiman Lal Shah v. The Union of India (1964)ILLJ752SC . The services of a temporary government servant, further, may be terminated on one months notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible, this Court observed, to define before hand all the circumstances in which the discretion can be exercised. The discretion was necessarily left to the Government. See observations of this Court in Ram Gopal Chaturvedi v. State of M. P. (1970)ILLJ367SC19. It must, however, be borne in mind that in some recent cases this Court has taken the view that a regulation providing for the termination of the service of an employee of the public corporation by notice only or pay in lieu thereof is invalid under Article 14 of the Constitution. We have referred to the decisions of the Workmen of Hindustan Steels case (supra); West Bengal State Electricity Boards case (supra) and Central Inland Water Transport Corporations case (supra)We must lean in favour of that interpretation because it helps to sustain the validity of the lawFrom what the learned Attorney General submitted and what appears to be the correct that every legislature intends to act within its powers. therefore, in a limited Government, the legislature attempts to function within its limited powers. It would not, therefore, be expected to have intended to transgress its limitsThe provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence30. The principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The principles of natural justice are not incapable of exclusion in a given situation. For example, Article 311(2) of the Constitution which essentially embodies the concept of natural justice, itself contemplates that there may be situations which warrant or permit the non-applicability of the principles underlying Article 311(2) of the Constitution. Reference may be made to the second proviso to Article 311 of the Constitution. This court has also recognised that the rule of audi alteram partem can be excluded where having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its application and even warrants its exclusion. If importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands, natural justice could be avoided. See the observations of this Court in Maneka Gandhis case at p. 681 of the report (supra). This Court in Tulsi Ram Patels case (supra) had in terms ruled that not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. But the principles of natural justice must not be displaced save in exceptional casesThe reading down, the learned Attorney General conceded cannot, however, be done where there was no valid reason and where it would be contrary to proclaimed purpose. See the observations of this Court in Minerva Mills Ltd. and Ors. v. Union of India and Ors. [1981]1SCR20632. In any event Counsel is right that the observations made at p. 259 of the report (supra) were in a different context and the challenge based on Articles 19(1)(g) and 31 does not appear to have any substance in resolving the present controversy before usThere is no evidence from either side as to whether the appellant had worked somewhere else though the appellant did not work with the respondent because of his suspension. The appellant had, however, stated that he did not so work. In that view of the matter, if the contentions of the appellant are accepted that the clause under which the terms of employment of the appellant was agreed and under which the termination was effected without any enquiry and further in view of the fact that the learned trial Judge before whom the appellant had filed the suit first and decreed the suit declaring the appellant to be entitled to be in service, the appellant, in our opinion. should rightly be granted a monetary claim for Rs.4,83,061.90 paise and further interest at 6% from 30th September, 1984. This would be in consonance with justice and equity in the facts and the circumstances of this case. This order, however, will have to be passed if we accept the contention on behalf of the appellant herein on the construction of the clause94. In this connection, it may, however, be noted that the General Insurance was nationalised under the provisions of the General Insurance Provisions (Nationalisation) Act, 1972 and the said Act came into force on 20th September, 1972. Prior to this, General Insurance (Emergency Provisions) Act, 1971 was passed under the provisions of which Act all undertakings of all Insurers vested in the Central Government with effect from 13th May, 1971. This was pending nationalisation which took place in 1972 as aforesaid96. The original terms and conditions had not been altered and the employees like the appellant in C.A. No. 855/84 continued to be governed by the original terms and conditions of the contract at the time of termination. The original terms and conditions of employment, therefore, continued in force. The contract of service was entered into when the appellant joined the Orissa Cooperative Insurance Society Ltd. way back in 1961 and at the time of take-over by the Central Government was the Divisional Manager of the said society. After the take over by the Central Government of general insurance in 1972, a great deal of reorganisation had to be effected in order to tone up the system of general insurance which had become unwieldy due to the mushroom growth of societies with no control whatsoever when insurance was in private hands98. The above clause covered cases of retrenchment, abolition of posts and other situations which had been adjudicated upon by this Court. If, however, the Central Inland Waters case (supra) is applied, Smt. Shyamla Pappu submitted, then the management of the Intervener Company will be powerless even in a case of abolition of posts or retrenchment or any other allied situation. It is seen that the power to terminate an employee is co-existent with the power to appoint. Smt. Shyamla Pappu relied on the General Clauses Act and submitted that the Central Inland Waters case (supra) was erroneous in so far as it made a complete negation of this power. Then, it was submitted by her that in case of an employer who had made all the necessary investigation and the employee concerned has been fully heard before the order of termination and if the decision of Central Inland Waters case was applied, then even such a case would be a case of illegal termination, considering that there would be no power to terminate. It was submitted that the Central Inland Waters case had to be read down because paras 77, 92 and 93 of the report take in even private employment. The sweep of the judgment cannot hold good and had to be curtailed99. According to Smt. Pappu, what then was the position of terminations effected when the law was different? It cannot be said that they are entitled to relief now. It should be clarified that the judgment of this Court would apply prospectively, it was submitted. Past cases might be treated as concluded in view of the law prevailing at that time and also in view of the contentions urged by the parties in the courts below at various stages. In the event, this Court comes to the conclusion that even old cases would be covered by the judgment now rendered, the orders already passed may be upheld and a post-decisional hearing might be directed so that the management concerned has the opportunity of showing that there existed good reasons for termination though the same were not communicated to the employee concerned because the law then existing did not require such a communication. In the interest of justice, we should allow such a courseThe instances of actual user of power, however, are not wholly irrelevant on the question of the validity or extent of the power because these explain the extent and content of power and/or occasion for such user. Firstly, we have to, in view of the facts and the circumstances of the civil Appeal No. 2876 of 1986, consider the amplitude of the power under clause (b) of Regulation 9 of the Regulations concerned. We have noted the contents of that Regulation. We have also noted the amplitude of the expression of that power as was canvassed before the High Court in the matter under appeal and as noticed by the decision of this Court in Delhi Transport Undertaking v. Balbir Saran Goels case (supra). A survey of the several authorities of law and the development of law from time to time would lead one to the conclusion that the philosophy of the Indian Constitution, as it has evolved, from precedent to precedent, has broaden the horizons of the right of the employees and they have been assured security of tenures and ensured protection against arbitrariness and discrimination in discharge or termination of his employment. This is the basic concept of the evolution from the different angles of law of master and servant or in the evolution of employer and employee relationship. It is true that the law has travelled in different channels, government servants or servants or employees having status have to be differentiated from those whose relationships are guided by contractual obligations102. But it has to be borne in mind that we are concerned in these matters with the employees either of semi-Government or statutory corporations or public undertakings who enjoy the rights, privileges, limitations and inhibitions of institutions who come within the ambit of Article 12 of the Constitution103. We have noted the exhaustive and the learned analysis of the background of the diverse facts projected in the several cases and appeals before us105. We have noted several decisions, numerous as these are, and the diverse facts, as we have found. We have noted that in some cases arbitrary action or whimsical action or discriminatory action can flow or follow by the preponderance of these powers. The fact that the power so entrusted with a high ranking authority or body is not always a safe or sound insurance against misuse. At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency. Yet, discipline has to be maintained, efficiency of the institution has to be ensured. It has to be recognised that quick actions are very often necessary in running of an institution or public service or public utility and public concern. It is not always possible to have enquiry because disclosure is difficult; evidence is hesitant and difficult, often impossible. In those circumstances, what should be the approach to the location of power and what should be the content and extent of power, possession and exercise of which is essential for efficient running of the industries or services? It has to be a matter both of balancing and adjustment on which one can wager the salvation of rights and liberties of the employees concerned and the future of the industries or the services involved106. Bearing in mind the aforesaid principles and objects, it appears to us that the power to terminate the employment of permanent employment must be there. Efficiency and expediency and the necessity of running an industry or service make it imperative to have these powers. Power must, therefore, with authorities to take decision quickly, objectively and independently. Power must be assumed with certain conditions of duty. The preamble, the policy, purpose of the enacting provision delimit the occasions or the contingencies for the need for the exercise of the power and these should limit the occasions of exercise of such powers. The manner in which such exercise of power should be made should ensure fairness, avoid arbitrariness and mala fide and create credibility in the decisions arrived at or by exercise of the power. All these are essential to ensure that power is fairly exercised and there is fair play in action. Reasons, good and sound, must control the exercise of power108. Notice of hearing may or may not be given, opportunity in the form of an enquiry may or not be given, yet arbitrariness and discrimination and acting whimsically must be avoided. These power must, therefore, be so read that the powers can be exercised on reasons, reasons should be recorded, reasons need not always be communicated, must be by authorities who are competent and are expected to act fairly, objectively and independently. The occasion for the use of power must be clearly circumscribed in the above limits. These must also circumscribe that the need for exercise of those power without holding a detailed or prolonged enquiry is there109. As we have noted, a good deal of controversy was that these inhibitions or limitations or conditions are not there in the amplitude or the extent of the power enumerated or stated in Regulation 9(b) of the aforesaid Regulations concerned or of similar provisions that we have examined in these casesIf we do not read the conferment of the power in the manner we have envisaged before, the power is liable to be struck down as bad. This, we say in spite of the argument by many including learned Solicitor General of India and Smt. Shyamla Pappu that in contractual obligations while institutions or organisations or authorities, who come within the ambit of Article 12 of the Constitution are free to contract on the basis of hire and fire and the theory of the concept of unequal bargain and the power conferred subject to constitutional limitations would not be applicable. We are not impressed and not agreeable to accept that proposition at this stage of the evolution of the constitutional philosophy of master and servant framework or if you would like to call it employer or employee relationship. therefore, these conferment of the powers on the employer must be judged on the constitutional peg and so judged without the limitations indicated aforesaid, the power is liable to be considered as arbitrary and struck down114. Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language, and for that matter any language in use today, is not an instrument of mathematical precision. It has been said that our literature would have been much the poorer if it were Leaving, however, the question of richness or poverty of our literature apart, we must proceed on the assumption that human mind cannot foresee everything. It has, therefore, been said that when a question arises whether the power has been properly conferred and even if so, the extent of it. Lord Denning has opined that a Judge in such a situation cannot simply fold his hand and blame the draftsmen and look for new enactment. Lord Denning invites us to set to work on the construction task of finding the intention of the Parliament or the law making body and we must, however, do this not only from the language of the statute, because, as we have seen, language is an imperfect medium and very often thoughts are perpetually in search of broken language. But the judge must also do it from a consideration of the social conditions which give rise to it, and of the mischief which it was intended to remedy and also in the light of the constitutional inhibitions and then supplant the written words and add to it end give force and life to the intention and purpose of the legislature or the law making authority. A judge must not alter the material of which a law or an instrument is woven, but he can and should iron out the creases and if one may venture to say, make articulate the inarticulate premise but make articulate only which follow from necessary compulsions of the situations and the constitutional position. See in this connection the observations of Lord Denning in " The Discipline of Law" at p. 12115. It is true that judicial jealously of legislature in law making has long been outdrawn, but the strict construction remains still an established rule. It is generally accepted principle that judges in interpreting statutes, should give effect to the legislators intent. By doing so, the courts do recognise their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort, creativity is essential. There have been differences of opinion on the practices that the courts may employ in attempting to discover the legislative intent. In the beginning, conventional practice was only to look to the words of the statutes. Now the entire spectrum has to be examined. It has been said that judges are not unfettered glossators116. It is true that there is no actual expression used enabling the legislation or the statute in question indicating the limitations or conditions as aforesaid. But it must proceed on the premise that the law making authority intended to make a valid law to confer power validly or which will be valid. The freedom, therefore, to search the spirit of the enactment or what is intended to obtain or to find the intention of the Parliament gives the Court the power to supplant and supplement the expressions used to say what was left unsaid. This is a power which is an important branch of judicial power, the concession of which it taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed intention of the legislature or the implied purpose of the legislation. It was not as Shri Ramamurthi tried to argue that legislature wanted to give an uncontrolled and absolute power to discharge employees on the part of the employers without any enquiry in all circumstances. That cannot be and that was not intended to be as can be implied from all the circumstances117. In the aforesaid view of the matter, I would sustain the constitutionality of this conferment of power by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies. It should be done objectively, the reasons should be recorded, it should record this and the basis that it is not feasible or possible reasonably to hold any enquiry without disclosing the evidence which in the circumstances of the case would be hampering the running of the institution. The reasons should be recorded, it need not be communicated and only for the purpose of the running of the institution, there should be factors which hamper the running of the institution without the termination of the employment of the employee concerned at that particular time either because he is a surplus, inefficient, disobedient and dangerous119. I have noted the guidelines for the exercise of the power, preamble, relevant sections from which the reasons should be inferred and recorded, although they need not be communicate. These should be recorded in order to ensure effective judicial review in a given case. Termination simpliciter under Regulation 9(b) or similar powers can be exercised only in circumstances other than those in regulation 9(a). The exercise of such powers can only be for purposes germane and relevant to the statute. There are several illustrations of that, namely, the employee is incompetent or unsuitable so as to make his continuance in the employment detrimental to the interest of the institution, where the continuance of the employee is a grave security risk making his continuance detrimental to the interest of the Corporation and where because of the conduct of the employee, there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee. These, however, are illustrative and not exhaustive. therefore, each case of the conferment of the power involved should be decided on the aforesaid basis120. I am conscious that clear intention as indicated in a legislation cannot be permitted to be defeated by means of construction. It has been said that if the legislature has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. I do not agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the in articulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference to Elliott Ashton Welsh, II v. United States 398 US 333 : 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision. In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations121. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. Reference was made to the decision of this Court in R.M.D.C.s case (supra). I am unable to accept this contention. It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the said Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the conditions indicated above as a necessary corollary or consequence of that power. It is also not reading to the legislature conditions which were not there in the second proviso Article 311(2) of the Constitution. In view of the ratio of the five-judge Bench decision of this Court in Tulsirams case (supra), which had examined all the relevant decisions, I am unable to accept the submission of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach122. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution123. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws125. In the aforesaid view of the matter, I direct that whenever question of exercise of the power of termination of permanent employees by reasonable notice without holding any enquiry arises, the extent of the power should be read in the manner indicated above and we reiterate that such powers can be exercised for the purposes of the Act which will be determinable by the preamble and by relevant enacting provisions and the contingencies for the exercise of the power must be specified and powers should be exercised by authority competent and independent enough and should be articulated by reasons stated even if not communicated. These are the limitations inherent and latent in the framework of our Constitution and the power with these limitations is valid126. Having regard to the aforesaid view, I will have to dispose of the appeals in terms of the aforesaid principlesHaving regard to the finality of the position of law and having regard to the theory that parties have adjusted their rights on the understanding of the law as it was, in our opinion, justice of the situation would be met if we declare and hold that pending litigations should be examined in the light of the aforesaid principles and dispose of in the aforesaid light, namely, where issues of damages or consequences of termination by virtue of exercise of the power are still pending adjudication in any forum and have not been finally adjudicated, these should be re-examined by the appropriate authorities before whom these issues are pending in the light of these principles, that is say, the exercise of the power should be judged on these conditions and in the light of those conditions. If in the light of these conditions, the exercise of the power is valid, the termination should be held to be valid, if on the other hand, there was exercise without compliance with these conditions, the termination would be invalid and consequences in law of damages or reinstatement or others will follow. But previous terminations where the his is no longer pending before any authority will not be reopened. To that extent. I will declare this to be the law prospectively128. I had, after circulating the draft judgment herein, the advantage of the views of my learned brothers. They do not agree with me. With respect, I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is "according to law". Law as evolved in India today, in my opinion, makes the limitations on user of power quite clear and distinct, in this branch. These are constitutional limitations. therefore, every provision in any legislation by limited legislatures, in my opinion, should be judged bearing in mind that the legislature and the law-making authorities were aware and are bound by these constitutional limitations. These inhibitions must be read into these provisions so that law becomes effective, purposeful and legal. In that view of the matter, I am of the opinion that we should approach the question of constitutional limitations or inhibitions in our interpretation in deciding in each individual cases by not what has been but what may be. This is the role and purpose of constitutional interpretation by the apex Court of the country. I know that this view of mine is not shared in this decision by my learned brothers. I respect their views, but I would like to hope that one day or the other this Court would be mature enough to fulfil what is purposeful and I believe to be the true role and purpose of the Court in interpretation in the light of constitutional inhibitions. Having had the advantage of the views of my learned brothers, I regret, with respect, I cannot join them in their views. I am the loser for the same, but I will fondly hope only for the time being129. I believe that we must do away with the childish fiction that law is not made by the judiciary. Austin in his Jurisprudent at page 65, 4th edn. has described the Blackstones principle of finding the law as the childish fiction. Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967]2SCR762 has referred to these observations. This Court under Article 141 of the Constitution is enjoined to declare law. The expression declared is wider than the words found or made. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. See the observations of Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra at pp. 813/14). I would, therefore, plead for a more active and creative role for the courts in declaring what the law is. | 0 | 30,975 | 6,423 | ### Instruction:
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there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee. These, however, are illustrative and not exhaustive. therefore, each case of the conferment of the power involved should be decided on the aforesaid basis. 120. I am conscious that clear intention as indicated in a legislation cannot be permitted to be defeated by means of construction. It has been said that if the legislature has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. I do not agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the in articulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference to Elliott Ashton Welsh, II v. United States 398 US 333 : 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision. In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations. 121. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. Reference was made to the decision of this Court in R.M.D.C.s case (supra). I am unable to accept this contention. It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the said Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the conditions indicated above as a necessary corollary or consequence of that power. It is also not reading to the legislature conditions which were not there in the second proviso Article 311(2) of the Constitution. In view of the ratio of the five-judge Bench decision of this Court in Tulsirams case (supra), which had examined all the relevant decisions, I am unable to accept the submission of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach. 122. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution. 123. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry. 124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws.
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are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws125. In the aforesaid view of the matter, I direct that whenever question of exercise of the power of termination of permanent employees by reasonable notice without holding any enquiry arises, the extent of the power should be read in the manner indicated above and we reiterate that such powers can be exercised for the purposes of the Act which will be determinable by the preamble and by relevant enacting provisions and the contingencies for the exercise of the power must be specified and powers should be exercised by authority competent and independent enough and should be articulated by reasons stated even if not communicated. These are the limitations inherent and latent in the framework of our Constitution and the power with these limitations is valid126. Having regard to the aforesaid view, I will have to dispose of the appeals in terms of the aforesaid principlesHaving regard to the finality of the position of law and having regard to the theory that parties have adjusted their rights on the understanding of the law as it was, in our opinion, justice of the situation would be met if we declare and hold that pending litigations should be examined in the light of the aforesaid principles and dispose of in the aforesaid light, namely, where issues of damages or consequences of termination by virtue of exercise of the power are still pending adjudication in any forum and have not been finally adjudicated, these should be re-examined by the appropriate authorities before whom these issues are pending in the light of these principles, that is say, the exercise of the power should be judged on these conditions and in the light of those conditions. If in the light of these conditions, the exercise of the power is valid, the termination should be held to be valid, if on the other hand, there was exercise without compliance with these conditions, the termination would be invalid and consequences in law of damages or reinstatement or others will follow. But previous terminations where the his is no longer pending before any authority will not be reopened. To that extent. I will declare this to be the law prospectively128. I had, after circulating the draft judgment herein, the advantage of the views of my learned brothers. They do not agree with me. With respect, I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is "according to law". Law as evolved in India today, in my opinion, makes the limitations on user of power quite clear and distinct, in this branch. These are constitutional limitations. therefore, every provision in any legislation by limited legislatures, in my opinion, should be judged bearing in mind that the legislature and the law-making authorities were aware and are bound by these constitutional limitations. These inhibitions must be read into these provisions so that law becomes effective, purposeful and legal. In that view of the matter, I am of the opinion that we should approach the question of constitutional limitations or inhibitions in our interpretation in deciding in each individual cases by not what has been but what may be. This is the role and purpose of constitutional interpretation by the apex Court of the country. I know that this view of mine is not shared in this decision by my learned brothers. I respect their views, but I would like to hope that one day or the other this Court would be mature enough to fulfil what is purposeful and I believe to be the true role and purpose of the Court in interpretation in the light of constitutional inhibitions. Having had the advantage of the views of my learned brothers, I regret, with respect, I cannot join them in their views. I am the loser for the same, but I will fondly hope only for the time being129. I believe that we must do away with the childish fiction that law is not made by the judiciary. Austin in his Jurisprudent at page 65, 4th edn. has described the Blackstones principle of finding the law as the childish fiction. Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967]2SCR762 has referred to these observations. This Court under Article 141 of the Constitution is enjoined to declare law. The expression declared is wider than the words found or made. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. See the observations of Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra at pp. 813/14). I would, therefore, plead for a more active and creative role for the courts in declaring what the law is.
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S. CHANDRASEKHARAN & ORS Vs. M. DINAKAR & ANR | or any of them, as the case may be: ….. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct. 12. The aforesaid provision vests the Tribunal with the power and jurisdiction to make an inquiry into claims arising out of deaths and injuries caused from an accident and make award determining the compensation which appears to it to be just. It would defeat the legislative purpose in the event the Tribunal or the Appellate Forum is made to confine its inquiry to the plea of the claimant as regards the factors which ought to be taken into consideration for determining the compensation amount. Power to hold an inquiry under the aforesaid provision cannot be construed in such a restrictive manner. If the factors on which quantification of claim is asked for cannot be established, the adjudicatory forum under the 1988 Act would stand divested of its power to arrive at just compensation even if in course of the proceeding, materials disclosed could justify award of compensation based on certain criteria other than those on which the claim is founded. In the instant case, we find that the Tribunal, while proceeding to award compensation to the appellants/claimants had relied on the principle laid down by this Court in the case of Arun Kumar Agrawal (supra) and there was evidence before the Tribunal to assess the income of the husband of the deceased. In fact, the first appellants compensation was quantified taking into consideration his own income at the material point of time. In our opinion, the High Court ought not to have proceeded on the basis of the income drawn by the deceased victim approximately three years before the accident ended her life. The Tribunal did not indulge in pure guesswork in pegging the notional income of the deceased to her husbands income. As we have already observed, in the claim petition itself, against the column Occupation of the deceased- income calculation of the deceased was contemplated on the basis of her husbands income. The Tribunal had rightly followed the course laid down in the case of Arun Kumar Agrawal (supra), which in the given facts, constituted, a more definitive and reliable methodology for quantifying pecuniary loss. 13. So far as deduction on account of personal expenses of the deceased, following the case of Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another [(2009) 6 SCC 121] , the Tribunal directed deduction of 1/3rd of the earning of the deceased, the latter being determined on the income of her spouse. That was, in our view, the proper course. We hold so because, even if we leave out the husband of the deceased from being treated as a dependent, there were two minor children at the material point of time who ought to have been treated as dependent family members. At that point of time the second appellant was twelve years old and the age of injured daughter was three years. In the case of Sarla Verma (supra) the deduction has been held to be valid in a case where there were dependent family members. We should not restrict the expression dependent to mean those financially dependent only. Minor children are emotionally dependent on the mother. They lost care and guidance of their mother at a very young age. While arriving at just compensation, the Tribunal ought to factor in the loss of dependency in these terms. 14. The High Court did not give any reason for deducting 50% in computing pecuniary loss and we do not think this was the correct view. We are of the view that deduction of 1/3rd of determined income of the deceased towards personal expenses is valid on the basis of the decision of this Court in the case of Sarla Verma (supra). We also find that neither the Tribunal nor the High Court had considered loss of future prospect to arrive at the quantum of pecuniary loss. In the case of Rajendra Singh and Others vs. National Insurance Company Limited and Others [(2020) 7 SCC 256], addition of loss of future prospects has been held to be a factor for determining compensation under the head of pecuniary loss even in a case where the income of deceased is arrived at on a notional basis. In this judgment it has been held:- 11. The notional income of the first deceased is therefore held to be Rs 5000 per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000 towards personal expenses with a multiplier of 17 is assessed at Rs 7,65,000. If the deceased had survived, in view of observations in Lata Wadhwa [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197] , her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for which reason we hold that the appellants shall be entitled to future prospects @ 40% in addition to the loss of consortium and future expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs 11,96,000. 15. The deceased was 37 years old at the time of her death. Hence, there ought to be an addition of 40% to the notional income of the deceased towards future prospects as she was below 40 years of age. In the present case, it is not in dispute that multiplier of 15 ought to be applied. | 1[ds]9. In our opinion, the judgment of the High Court on this point suffers from error on two counts. At the time of her death, the deceased was not in employment. She was a homemaker. It was not a case where the deceased at the time of accident had just left her job. If that was the case, her last drawn salary might have had given reliable guidance for computing her monthly income at that point of time. Here the deceased remained without employment for a period of approximately three years and what she earned prior to that ought not to have been treated to be her monthly income to arrive at just and proper compensation under the head of pecuniary loss, as has been held by the High Court. There is a long time gap between the time she was in employment and the occurrence of the accident. Her monthly salary approximately three years back thus would be an unreliable guide for fixing her notional income when she succumbed to her injuries caused by the accident. Moreover, at the time of the accident, she was a homemaker providing care and support to her family. In this context, in our opinion, the computation methodology prescribed in the case of Arun Kumar Agrawal (supra) would be more appropriate to apply, which was done by the Tribunal.10. Plea has been taken before us on behalf of the insurance company that the appellants could not take a stand for computing the income of the deceased in the manner held in the case of Arun Kumar Agrawal (supra), since before the High Court, they had run a case that the pecuniary loss ought to be computed on the basis of her last drawn salary. Just because the appellants urged their claim based on the last drawn salary of the deceased before the High Court, this Court ought not to anchor its decision on that argument alone. It remains open to this Court to examine the nature of the claim and compute the compensation on a different criterion applying a different parameter. This is more so, because such compensation figure could be arrived at on the basis of materials on record, that includes evidence on monthly earning of the husband of the deceased and the applied parameter stands judicially recognised as a legitimate mode for computing pecuniary loss. Further, in this case, plea was made in the claim petition for compensation calculated on the basis of one-third of the husbands income.In the petition for special leave to appeals also, one of the points formulated is as to whether compensation on account of death of Bala Babitha would be calculated on the basis of her last drawn salary or her husbands income.In the instant case, we find that the Tribunal, while proceeding to award compensation to the appellants/claimants had relied on the principle laid down by this Court in the case of Arun Kumar Agrawal (supra) and there was evidence before the Tribunal to assess the income of the husband of the deceased. In fact, the first appellants compensation was quantified taking into consideration his own income at the material point of time. In our opinion, the High Court ought not to have proceeded on the basis of the income drawn by the deceased victim approximately three years before the accident ended her life. The Tribunal did not indulge in pure guesswork in pegging the notional income of the deceased to her husbands income. As we have already observed, in the claim petition itself, against the column Occupation of the deceased- income calculation of the deceased was contemplated on the basis of her husbands income. The Tribunal had rightly followed the course laid down in the case of Arun Kumar Agrawal (supra), which in the given facts, constituted, a more definitive and reliable methodology for quantifying pecuniary loss.13. So far as deduction on account of personal expenses of the deceased, following the case of Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another [(2009) 6 SCC 121] , the Tribunal directed deduction of 1/3rd of the earning of the deceased, the latter being determined on the income of her spouse. That was, in our view, the proper course. We hold so because, even if we leave out the husband of the deceased from being treated as a dependent, there were two minor children at the material point of time who ought to have been treated as dependent family members. At that point of time the second appellant was twelve years old and the age of injured daughter was three years. In the case of Sarla Verma (supra) the deduction has been held to be valid in a case where there were dependent family members. We should not restrict the expression dependent to mean those financially dependent only. Minor children are emotionally dependent on the mother. They lost care and guidance of their mother at a very young age. While arriving at just compensation, the Tribunal ought to factor in the loss of dependency in these terms.14. The High Court did not give any reason for deducting 50% in computing pecuniary loss and we do not think this was the correct view. We are of the view that deduction of 1/3rd of determined income of the deceased towards personal expenses is valid on the basis of the decision of this Court in the case of Sarla Verma (supra). We also find that neither the Tribunal nor the High Court had considered loss of future prospect to arrive at the quantum of pecuniary loss. In the case of Rajendra Singh and Others vs. National Insurance Company Limited and Others [(2020) 7 SCC 256], addition of loss of future prospects has been held to be a factor for determining compensation under the head of pecuniary loss even in a case where the income of deceased is arrived at on a notional basis. In this judgment it has been held:-11. The notional income of the first deceased is therefore held to be Rs 5000 per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000 towards personal expenses with a multiplier of 17 is assessed at Rs 7,65,000. If the deceased had survived, in view of observations in Lata Wadhwa [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197] , her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for which reason we hold that the appellants shall be entitled to future prospects @ 40% in addition to the loss of consortium and future expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs 11,96,000.15. The deceased was 37 years old at the time of her death. Hence, there ought to be an addition of 40% to the notional income of the deceased towards future prospects as she was below 40 years of age. In the present case, it is not in dispute that multiplier of 15 ought to be applied. | 1 | 3,058 | 1,313 | ### 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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or any of them, as the case may be: ….. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct. 12. The aforesaid provision vests the Tribunal with the power and jurisdiction to make an inquiry into claims arising out of deaths and injuries caused from an accident and make award determining the compensation which appears to it to be just. It would defeat the legislative purpose in the event the Tribunal or the Appellate Forum is made to confine its inquiry to the plea of the claimant as regards the factors which ought to be taken into consideration for determining the compensation amount. Power to hold an inquiry under the aforesaid provision cannot be construed in such a restrictive manner. If the factors on which quantification of claim is asked for cannot be established, the adjudicatory forum under the 1988 Act would stand divested of its power to arrive at just compensation even if in course of the proceeding, materials disclosed could justify award of compensation based on certain criteria other than those on which the claim is founded. In the instant case, we find that the Tribunal, while proceeding to award compensation to the appellants/claimants had relied on the principle laid down by this Court in the case of Arun Kumar Agrawal (supra) and there was evidence before the Tribunal to assess the income of the husband of the deceased. In fact, the first appellants compensation was quantified taking into consideration his own income at the material point of time. In our opinion, the High Court ought not to have proceeded on the basis of the income drawn by the deceased victim approximately three years before the accident ended her life. The Tribunal did not indulge in pure guesswork in pegging the notional income of the deceased to her husbands income. As we have already observed, in the claim petition itself, against the column Occupation of the deceased- income calculation of the deceased was contemplated on the basis of her husbands income. The Tribunal had rightly followed the course laid down in the case of Arun Kumar Agrawal (supra), which in the given facts, constituted, a more definitive and reliable methodology for quantifying pecuniary loss. 13. So far as deduction on account of personal expenses of the deceased, following the case of Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another [(2009) 6 SCC 121] , the Tribunal directed deduction of 1/3rd of the earning of the deceased, the latter being determined on the income of her spouse. That was, in our view, the proper course. We hold so because, even if we leave out the husband of the deceased from being treated as a dependent, there were two minor children at the material point of time who ought to have been treated as dependent family members. At that point of time the second appellant was twelve years old and the age of injured daughter was three years. In the case of Sarla Verma (supra) the deduction has been held to be valid in a case where there were dependent family members. We should not restrict the expression dependent to mean those financially dependent only. Minor children are emotionally dependent on the mother. They lost care and guidance of their mother at a very young age. While arriving at just compensation, the Tribunal ought to factor in the loss of dependency in these terms. 14. The High Court did not give any reason for deducting 50% in computing pecuniary loss and we do not think this was the correct view. We are of the view that deduction of 1/3rd of determined income of the deceased towards personal expenses is valid on the basis of the decision of this Court in the case of Sarla Verma (supra). We also find that neither the Tribunal nor the High Court had considered loss of future prospect to arrive at the quantum of pecuniary loss. In the case of Rajendra Singh and Others vs. National Insurance Company Limited and Others [(2020) 7 SCC 256], addition of loss of future prospects has been held to be a factor for determining compensation under the head of pecuniary loss even in a case where the income of deceased is arrived at on a notional basis. In this judgment it has been held:- 11. The notional income of the first deceased is therefore held to be Rs 5000 per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000 towards personal expenses with a multiplier of 17 is assessed at Rs 7,65,000. If the deceased had survived, in view of observations in Lata Wadhwa [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197] , her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for which reason we hold that the appellants shall be entitled to future prospects @ 40% in addition to the loss of consortium and future expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs 11,96,000. 15. The deceased was 37 years old at the time of her death. Hence, there ought to be an addition of 40% to the notional income of the deceased towards future prospects as she was below 40 years of age. In the present case, it is not in dispute that multiplier of 15 ought to be applied.
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this context, in our opinion, the computation methodology prescribed in the case of Arun Kumar Agrawal (supra) would be more appropriate to apply, which was done by the Tribunal.10. Plea has been taken before us on behalf of the insurance company that the appellants could not take a stand for computing the income of the deceased in the manner held in the case of Arun Kumar Agrawal (supra), since before the High Court, they had run a case that the pecuniary loss ought to be computed on the basis of her last drawn salary. Just because the appellants urged their claim based on the last drawn salary of the deceased before the High Court, this Court ought not to anchor its decision on that argument alone. It remains open to this Court to examine the nature of the claim and compute the compensation on a different criterion applying a different parameter. This is more so, because such compensation figure could be arrived at on the basis of materials on record, that includes evidence on monthly earning of the husband of the deceased and the applied parameter stands judicially recognised as a legitimate mode for computing pecuniary loss. Further, in this case, plea was made in the claim petition for compensation calculated on the basis of one-third of the husbands income.In the petition for special leave to appeals also, one of the points formulated is as to whether compensation on account of death of Bala Babitha would be calculated on the basis of her last drawn salary or her husbands income.In the instant case, we find that the Tribunal, while proceeding to award compensation to the appellants/claimants had relied on the principle laid down by this Court in the case of Arun Kumar Agrawal (supra) and there was evidence before the Tribunal to assess the income of the husband of the deceased. In fact, the first appellants compensation was quantified taking into consideration his own income at the material point of time. In our opinion, the High Court ought not to have proceeded on the basis of the income drawn by the deceased victim approximately three years before the accident ended her life. The Tribunal did not indulge in pure guesswork in pegging the notional income of the deceased to her husbands income. As we have already observed, in the claim petition itself, against the column Occupation of the deceased- income calculation of the deceased was contemplated on the basis of her husbands income. The Tribunal had rightly followed the course laid down in the case of Arun Kumar Agrawal (supra), which in the given facts, constituted, a more definitive and reliable methodology for quantifying pecuniary loss.13. So far as deduction on account of personal expenses of the deceased, following the case of Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another [(2009) 6 SCC 121] , the Tribunal directed deduction of 1/3rd of the earning of the deceased, the latter being determined on the income of her spouse. That was, in our view, the proper course. We hold so because, even if we leave out the husband of the deceased from being treated as a dependent, there were two minor children at the material point of time who ought to have been treated as dependent family members. At that point of time the second appellant was twelve years old and the age of injured daughter was three years. In the case of Sarla Verma (supra) the deduction has been held to be valid in a case where there were dependent family members. We should not restrict the expression dependent to mean those financially dependent only. Minor children are emotionally dependent on the mother. They lost care and guidance of their mother at a very young age. While arriving at just compensation, the Tribunal ought to factor in the loss of dependency in these terms.14. The High Court did not give any reason for deducting 50% in computing pecuniary loss and we do not think this was the correct view. We are of the view that deduction of 1/3rd of determined income of the deceased towards personal expenses is valid on the basis of the decision of this Court in the case of Sarla Verma (supra). We also find that neither the Tribunal nor the High Court had considered loss of future prospect to arrive at the quantum of pecuniary loss. In the case of Rajendra Singh and Others vs. National Insurance Company Limited and Others [(2020) 7 SCC 256], addition of loss of future prospects has been held to be a factor for determining compensation under the head of pecuniary loss even in a case where the income of deceased is arrived at on a notional basis. In this judgment it has been held:-11. The notional income of the first deceased is therefore held to be Rs 5000 per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000 towards personal expenses with a multiplier of 17 is assessed at Rs 7,65,000. If the deceased had survived, in view of observations in Lata Wadhwa [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197] , her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for which reason we hold that the appellants shall be entitled to future prospects @ 40% in addition to the loss of consortium and future expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs 11,96,000.15. The deceased was 37 years old at the time of her death. Hence, there ought to be an addition of 40% to the notional income of the deceased towards future prospects as she was below 40 years of age. In the present case, it is not in dispute that multiplier of 15 ought to be applied.
|
Mangalore Electric Supply Co. Ltd Vs. The Commissioner Of Income Tax, West Bengal | which is, that the transfer of capital assets by reason of compulsory acquisition are comprehended within the meaning of the word "transfer". We are, therefore, clear that if an existing title is extinguished and a new one is created, there is within the meaning of section 12B(1) of the Act of 1922 transfer of a capital asset. The fact that the divestiture of title takes place under a law relating to the compulsory acquisition of property would make no difference to that position.10. The High Court of Madhya Pradesh in Commissioner of Income-tax v. Shrikrishan Chandmal [1963] 47 ITR 833 , the High Court of Madras in Wilfred Pereira Ltd. v. Commissioner of Income-tax [1964] 53 ITR 747 and Commissioner of Income-tax v. United India Life Assurance Company Ltd. [1966] 62 ITR 610 and the High Court of Gujarat in Vadilal Soda Ice Factory v. Commissioner of Income-tax [1971] 80 ITR 711 have taken the same view, namely, that the word "transfer" which occurs in section 12B(1) of the Indian Income-tax Act, 1922, is an expression of wide comprehension and includes within its sweep both voluntary and involuntary transfers.11. The judgment of the High Court dated August 25, 1971, leading to Civil Appeal No. 2160 of 1972 must, therefore, be affirmed and the appeal dismissedIn regard to Civil Appeal No. 2006 of 1972, the case of the appellant before the Income-tax Officer was only this that the compulsory acquisition of its undertaking did not amount to a "transfer" within the meaning of section 12B(1) of the Act of 1922. No case was made out that, alternatively, goodwill is not a capital asset. The appellant did not contend before the Appellate Assistant Commissioner also that goodwill is not a capital asset and, therefore, at least to the extent to which compensation was attributable to the goodwill the capital gains tax was not attracted. The appellant did contend before the Tribunal that, apart from its tangible assets, the State Government had taken over the goodwill attaching to the business and the appellants right to the management of that business and the amount referable to these items had to be deducted in computing the capital gains. The Tribunal answered this contention by holding that--"(a) goodwill as understood in law had no real significance in the present case and could not have been acquired by the Government;(b) it was not one of the assets shown in the balance-sheet;(c) there was no proof to show that the Government actually took over any goodwill;(d) if the case of the appellant was that even if it was not shown in the balance-sheet, payment therefor had to be evaluated or apportioned, the appellant should have produced proof regarding the evaluation of the goodwill;(e) the appellant had not placed any materials before the Tribunal to show whether any interference was called for in the matter of computation having regard to the value of goodwill as on January 1, 1954; and(f) the right of management was not independent of the business acquired and there were no materials to show that this right could have any value placed upon it in the fixation of compensationThe High Court was in our opinion right in taking the view that in the light of these circumstances the appellants contention, that goodwill should be valued separately and a part of the compensation attributable to it should be deducted from the compensation, could not be accepted. Even assuming for the purposes of argument that the two relevant questions, on which the High Court called for a reference from the Tribunal involved the consideration of any legal principle, the questions are mixed questions of law and fact because, unless it is found that the goodwill, in fact, had some value, it cannot be decided whether any part of the compensation is attributable to the goodwill of the business."12. Learned counsel for the appellant drew our attention to the grievance made by the appellant in his application dated February 8, 1972, for leave to appeal to this court to the effect that the Tribunal had expressed the view at the time of hearing of the appeal before it that it would only decide the point whether a part of the compensation was attributable to the goodwill of the business and that the question as regards the value of the goodwill as on January 1, 1954, would be left to the Income-tax Officer for his determination. The grievance of the appellant is that it was misled by the observations made by the Tribunal during the course of the hearing of the appeal and that is why it did not produce any evidence regarding the value of the goodwill. That there is no substance in this contention is clear from the order of the Tribunal dated October 9, 1968, by which it refused to refer for the opinion of the High Court the question regarding the evaluation of the goodwill. The Tribunal observes in its order that during the hearing of the appeal it had not expressed any view of the kind attributed to it by the appellant and that no assurance was held forth to the appellant that the question as regards goodwill would be left for determination to the Income-tax OfficerSince the question as to whether a part of the compensation is attributable to the goodwill of the appellants business is a mixed question of law and fact and since not only was the question not raised by the appellant before the Income-tax Officer or the Appellate Assistant Commissioner but, having raised it before the Tribunal, the appellant placed no material before it on the basis of which goodwill could be evaluated and a part of the compensation properly apportioned to the goodwill of the business, we cannot allow the appellant to raise the contention involved in the two questions. On those questions, therefore, the judgment of the High Court, for the reasons mentioned by us, has to be affirmed. Civil Appeal No. 2006 is also, therefore, dismissed.13. | 0[ds]We will take up Civil Appeal No. 2160 of 1972 first for our consideration. It involves for consideration the decision of the question whether the compulsory acquisition of property falls within the scope of section 12B of the Indian Income-tax Act, 1922, so as to render any surplus arising from such acquisition liable to tax under thatfind it impossible to accept this submission. In the first place, if it was intended that voluntary transfers alone should fall within the meaning of the section, it was unnecessary for the legislature to use the expression "transfer", an expression acknowledged in law as having a wide, connotation and amplitude. Earl Jowitt, in The Dictionary of English Law, says:"In the law of property, a transfer is where a right passes from one person to another, either (1) by virtue of an act done by the transferor with that intention, as in the case of a conveyance or assignment by way of sale or gift, etc., or (2) by operation of law, as in the case of forfeiture, bankruptcy, descent, or intestacy." Roland Burrows on Words and Phrases, volume V, contains a statement under the caption "Transfer on Sale" at page 331, that even a transfer of land under compulsory powers is a transfer "on sale". It is unnecessary for us to consider the question whether a compulsory acquisition of property is a "sale" within the meaning of section 12B(1) and indeed, it is needless, for the present purpose to go that far. We are concerned with the narrower question whether a compulsory acquisition of property can amount to a "transfer" within the meaning of section 12B(1) and upon that question it is important to bear in mind that the word transfer is comprehensive and is regarded generally as comprehending within its scope transfers both of the voluntary and involuntary kinds. Without more, therefore, there is no reason for limiting the operation of the word "transfer" to voluntary acts of transfer so as to exclude compulsory acquisitions of propertyThe argument that the word "transfer" must be construed ejusdem generis with the words, sale, exchange or relinquishment, has to be rejected because as stated in Craies on Statute Law (7th edition, pageHigh Court of Madhya Pradesh in Commissioner of Income-tax v. Shrikrishan Chandmal [1963] 47 ITR 833 , the High Court of Madras in Wilfred Pereira Ltd. v. Commissioner of Income-tax [1964] 53 ITR 747 and Commissioner of Income-tax v. United India Life Assurance Company Ltd. [1966] 62 ITR 610 and the High Court of Gujarat in Vadilal Soda Ice Factory v. Commissioner of Income-tax [1971] 80 ITR 711 have taken the same view, namely, that the word "transfer" which occurs in section 12B(1) of the Indian Income-tax Act, 1922, is an expression of wide comprehension and includes within its sweep both voluntary and involuntaryjudgment of the High Court dated August 25, 1971, leading to Civil Appeal No. 2160 of 1972 must, therefore, be affirmed and the appeal dismissedIn regard to Civil Appeal No. 2006 of 1972, the case of the appellant before the Income-tax Officer was only this that the compulsory acquisition of its undertaking did not amount to a "transfer" within the meaning of section 12B(1) of the Act of 1922. No case was made out that, alternatively, goodwill is not a capital asset. The appellant did not contend before the Appellate Assistant Commissioner also that goodwill is not a capital asset and, therefore, at least to the extent to which compensation was attributable to the goodwill the capital gains tax was not attracted. The appellant did contend before the Tribunal that, apart from its tangible assets, the State Government had taken over the goodwill attaching to the business and the appellants right to the management of that business and the amount referable to these items had to be deducted in computing the capital gains. The Tribunal answered this contention by holdinggoodwill as understood in law had no real significance in the present case and could not have been acquired by the Government;(b) it was not one of the assets shown in the balance-sheet;(c) there was no proof to show that the Government actually took over any goodwill;(d) if the case of the appellant was that even if it was not shown in the balance-sheet, payment therefor had to be evaluated or apportioned, the appellant should have produced proof regarding the evaluation of the goodwill;(e) the appellant had not placed any materials before the Tribunal to show whether any interference was called for in the matter of computation having regard to the value of goodwill as on January 1, 1954; and(f) the right of management was not independent of the business acquired and there were no materials to show that this right could have any value placed upon it in the fixation of compensationThe High Court was in our opinion right in taking the view that in the light of these circumstances the appellants contention, that goodwill should be valued separately and a part of the compensation attributable to it should be deducted from the compensation, could not be accepted. Even assuming for the purposes of argument that the two relevant questions, on which the High Court called for a reference from the Tribunal involved the consideration of any legal principle, the questions are mixed questions of law and fact because, unless it is found that the goodwill, in fact, had some value, it cannot be decided whether any part of the compensation is attributable to the goodwill of theThat there is no substance in this contention is clear from the order of the Tribunal dated October 9, 1968, by which it refused to refer for the opinion of the High Court the question regarding the evaluation of the goodwill. The Tribunal observes in its order that during the hearing of the appeal it had not expressed any view of the kind attributed to it by the appellant and that no assurance was held forth to the appellant that the question as regards goodwill would be left for determination to the Income-tax OfficerSince the question as to whether a part of the compensation is attributable to the goodwill of the appellants business is a mixed question of law and fact and since not only was the question not raised by the appellant before the Income-tax Officer or the Appellate Assistant Commissioner but, having raised it before the Tribunal, the appellant placed no material before it on the basis of which goodwill could be evaluated and a part of the compensation properly apportioned to the goodwill of the business, we cannot allow the appellant to raise the contention involved in the two questions. On those questions, therefore, the judgment of the High Court, for the reasons mentioned by us, has to be affirmed. Civil Appeal No. 2006 is also, therefore, dismissed. | 0 | 3,818 | 1,294 | ### 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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which is, that the transfer of capital assets by reason of compulsory acquisition are comprehended within the meaning of the word "transfer". We are, therefore, clear that if an existing title is extinguished and a new one is created, there is within the meaning of section 12B(1) of the Act of 1922 transfer of a capital asset. The fact that the divestiture of title takes place under a law relating to the compulsory acquisition of property would make no difference to that position.10. The High Court of Madhya Pradesh in Commissioner of Income-tax v. Shrikrishan Chandmal [1963] 47 ITR 833 , the High Court of Madras in Wilfred Pereira Ltd. v. Commissioner of Income-tax [1964] 53 ITR 747 and Commissioner of Income-tax v. United India Life Assurance Company Ltd. [1966] 62 ITR 610 and the High Court of Gujarat in Vadilal Soda Ice Factory v. Commissioner of Income-tax [1971] 80 ITR 711 have taken the same view, namely, that the word "transfer" which occurs in section 12B(1) of the Indian Income-tax Act, 1922, is an expression of wide comprehension and includes within its sweep both voluntary and involuntary transfers.11. The judgment of the High Court dated August 25, 1971, leading to Civil Appeal No. 2160 of 1972 must, therefore, be affirmed and the appeal dismissedIn regard to Civil Appeal No. 2006 of 1972, the case of the appellant before the Income-tax Officer was only this that the compulsory acquisition of its undertaking did not amount to a "transfer" within the meaning of section 12B(1) of the Act of 1922. No case was made out that, alternatively, goodwill is not a capital asset. The appellant did not contend before the Appellate Assistant Commissioner also that goodwill is not a capital asset and, therefore, at least to the extent to which compensation was attributable to the goodwill the capital gains tax was not attracted. The appellant did contend before the Tribunal that, apart from its tangible assets, the State Government had taken over the goodwill attaching to the business and the appellants right to the management of that business and the amount referable to these items had to be deducted in computing the capital gains. The Tribunal answered this contention by holding that--"(a) goodwill as understood in law had no real significance in the present case and could not have been acquired by the Government;(b) it was not one of the assets shown in the balance-sheet;(c) there was no proof to show that the Government actually took over any goodwill;(d) if the case of the appellant was that even if it was not shown in the balance-sheet, payment therefor had to be evaluated or apportioned, the appellant should have produced proof regarding the evaluation of the goodwill;(e) the appellant had not placed any materials before the Tribunal to show whether any interference was called for in the matter of computation having regard to the value of goodwill as on January 1, 1954; and(f) the right of management was not independent of the business acquired and there were no materials to show that this right could have any value placed upon it in the fixation of compensationThe High Court was in our opinion right in taking the view that in the light of these circumstances the appellants contention, that goodwill should be valued separately and a part of the compensation attributable to it should be deducted from the compensation, could not be accepted. Even assuming for the purposes of argument that the two relevant questions, on which the High Court called for a reference from the Tribunal involved the consideration of any legal principle, the questions are mixed questions of law and fact because, unless it is found that the goodwill, in fact, had some value, it cannot be decided whether any part of the compensation is attributable to the goodwill of the business."12. Learned counsel for the appellant drew our attention to the grievance made by the appellant in his application dated February 8, 1972, for leave to appeal to this court to the effect that the Tribunal had expressed the view at the time of hearing of the appeal before it that it would only decide the point whether a part of the compensation was attributable to the goodwill of the business and that the question as regards the value of the goodwill as on January 1, 1954, would be left to the Income-tax Officer for his determination. The grievance of the appellant is that it was misled by the observations made by the Tribunal during the course of the hearing of the appeal and that is why it did not produce any evidence regarding the value of the goodwill. That there is no substance in this contention is clear from the order of the Tribunal dated October 9, 1968, by which it refused to refer for the opinion of the High Court the question regarding the evaluation of the goodwill. The Tribunal observes in its order that during the hearing of the appeal it had not expressed any view of the kind attributed to it by the appellant and that no assurance was held forth to the appellant that the question as regards goodwill would be left for determination to the Income-tax OfficerSince the question as to whether a part of the compensation is attributable to the goodwill of the appellants business is a mixed question of law and fact and since not only was the question not raised by the appellant before the Income-tax Officer or the Appellate Assistant Commissioner but, having raised it before the Tribunal, the appellant placed no material before it on the basis of which goodwill could be evaluated and a part of the compensation properly apportioned to the goodwill of the business, we cannot allow the appellant to raise the contention involved in the two questions. On those questions, therefore, the judgment of the High Court, for the reasons mentioned by us, has to be affirmed. Civil Appeal No. 2006 is also, therefore, dismissed.13.
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of a conveyance or assignment by way of sale or gift, etc., or (2) by operation of law, as in the case of forfeiture, bankruptcy, descent, or intestacy." Roland Burrows on Words and Phrases, volume V, contains a statement under the caption "Transfer on Sale" at page 331, that even a transfer of land under compulsory powers is a transfer "on sale". It is unnecessary for us to consider the question whether a compulsory acquisition of property is a "sale" within the meaning of section 12B(1) and indeed, it is needless, for the present purpose to go that far. We are concerned with the narrower question whether a compulsory acquisition of property can amount to a "transfer" within the meaning of section 12B(1) and upon that question it is important to bear in mind that the word transfer is comprehensive and is regarded generally as comprehending within its scope transfers both of the voluntary and involuntary kinds. Without more, therefore, there is no reason for limiting the operation of the word "transfer" to voluntary acts of transfer so as to exclude compulsory acquisitions of propertyThe argument that the word "transfer" must be construed ejusdem generis with the words, sale, exchange or relinquishment, has to be rejected because as stated in Craies on Statute Law (7th edition, pageHigh Court of Madhya Pradesh in Commissioner of Income-tax v. Shrikrishan Chandmal [1963] 47 ITR 833 , the High Court of Madras in Wilfred Pereira Ltd. v. Commissioner of Income-tax [1964] 53 ITR 747 and Commissioner of Income-tax v. United India Life Assurance Company Ltd. [1966] 62 ITR 610 and the High Court of Gujarat in Vadilal Soda Ice Factory v. Commissioner of Income-tax [1971] 80 ITR 711 have taken the same view, namely, that the word "transfer" which occurs in section 12B(1) of the Indian Income-tax Act, 1922, is an expression of wide comprehension and includes within its sweep both voluntary and involuntaryjudgment of the High Court dated August 25, 1971, leading to Civil Appeal No. 2160 of 1972 must, therefore, be affirmed and the appeal dismissedIn regard to Civil Appeal No. 2006 of 1972, the case of the appellant before the Income-tax Officer was only this that the compulsory acquisition of its undertaking did not amount to a "transfer" within the meaning of section 12B(1) of the Act of 1922. No case was made out that, alternatively, goodwill is not a capital asset. The appellant did not contend before the Appellate Assistant Commissioner also that goodwill is not a capital asset and, therefore, at least to the extent to which compensation was attributable to the goodwill the capital gains tax was not attracted. The appellant did contend before the Tribunal that, apart from its tangible assets, the State Government had taken over the goodwill attaching to the business and the appellants right to the management of that business and the amount referable to these items had to be deducted in computing the capital gains. The Tribunal answered this contention by holdinggoodwill as understood in law had no real significance in the present case and could not have been acquired by the Government;(b) it was not one of the assets shown in the balance-sheet;(c) there was no proof to show that the Government actually took over any goodwill;(d) if the case of the appellant was that even if it was not shown in the balance-sheet, payment therefor had to be evaluated or apportioned, the appellant should have produced proof regarding the evaluation of the goodwill;(e) the appellant had not placed any materials before the Tribunal to show whether any interference was called for in the matter of computation having regard to the value of goodwill as on January 1, 1954; and(f) the right of management was not independent of the business acquired and there were no materials to show that this right could have any value placed upon it in the fixation of compensationThe High Court was in our opinion right in taking the view that in the light of these circumstances the appellants contention, that goodwill should be valued separately and a part of the compensation attributable to it should be deducted from the compensation, could not be accepted. Even assuming for the purposes of argument that the two relevant questions, on which the High Court called for a reference from the Tribunal involved the consideration of any legal principle, the questions are mixed questions of law and fact because, unless it is found that the goodwill, in fact, had some value, it cannot be decided whether any part of the compensation is attributable to the goodwill of theThat there is no substance in this contention is clear from the order of the Tribunal dated October 9, 1968, by which it refused to refer for the opinion of the High Court the question regarding the evaluation of the goodwill. The Tribunal observes in its order that during the hearing of the appeal it had not expressed any view of the kind attributed to it by the appellant and that no assurance was held forth to the appellant that the question as regards goodwill would be left for determination to the Income-tax OfficerSince the question as to whether a part of the compensation is attributable to the goodwill of the appellants business is a mixed question of law and fact and since not only was the question not raised by the appellant before the Income-tax Officer or the Appellate Assistant Commissioner but, having raised it before the Tribunal, the appellant placed no material before it on the basis of which goodwill could be evaluated and a part of the compensation properly apportioned to the goodwill of the business, we cannot allow the appellant to raise the contention involved in the two questions. On those questions, therefore, the judgment of the High Court, for the reasons mentioned by us, has to be affirmed. Civil Appeal No. 2006 is also, therefore, dismissed.
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Vasanta Sampat Dupare Vs. State of Maharashtra | the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, for he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous. In this context, we may fruitfully refer to a passage from Shyam Narain V. State (NCT of Delhi) (2013) 7 SCC 77 , wherein it has been observed as follows: The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a tsunami of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity. In the said case, while describing the rape on an eight year old girl, the Court observed: Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age-old wise saying that child is a gift of the providence enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. 58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances. 59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances. 60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold. | 0[ds]24. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony25. Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct.27. We have referred to the aforesaid authorities only to highlight that in the present case the provision under Section 27 of Evidence Act is clearly attracted and we see no illegality in the seizure and the Panch witness have remained embedded in their version. Nothing has been suggested to disregard their evidence. Therefore, we have no hesitation in holding that there is ample proof of seizure of the articles. That apart, we have also additionally considered the conduct of the appellant that speaks eloquently, for it is worthy of being considered within the admissible parameters28. The next circumstance which has been accepted by the learned trail Judge and the High Court is the identification of the clothes and matching of blood stains of the appellants clothes. On the clothes that has been seized, the stains of human blood of A Group are detected. The chemical analysis report, Exhibit 77, has indicated that stains of human blood of A group which is detected on seized clothes, and the blood group that has been found on the clothes of the accused including his underwear and handkerchief is the same. The matching of the blood group gains signification in such a circumstance. The incriminating articles, namely, stones smeared with blood, the clothes and the blood group matching is an important circumstance showing complicity of the appellant in the crime in question29. Another facet which has immense significance is the injury report. It graphically depicts the injuries on the private parts of the minor girl which has been caused by sexual intercourse. Stains of human blood of A group have also been noticed on the front portion of the nikar of the accused as per Exhibit 77 which matches the blood group found on the stones30. The other relevant circumstance that weighs against the appellant is that the dead body of the deceased was recovered at the instance of the appellant. It was within his special knowledge. The tap where he had washed his clothes was quite nearby. In this context, it is worthy to note that the accused had disclosed the facts and on the basis of his disclosure statement he had led to the place where the dead body of the victim was found35. On a critical analysis of the evidence on record, we are convinced that the circumstances that have been clearly established are that the appellant was seen in the courtyard where the minor girl and other children were playing; that the appellant was seen taking the deceased on his bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint chocolate along with her; that the accused had told PW-2 that the child was the daughter of his friend and he was going to Tekdi-Wadi along with the girl; that the appellant had led to discovery of the dead body of the deceased, the place where he had washed his clothes and at his instance the stones smeared with blood were recovered; that the medical report clearly indicates about the injuries sustained by the deceased on her body; that the injuries sustained on the private parts have been stated by the doctor to have been caused by forcible sexual intercourse; that the stones that were seized were smeared with blood and the medical evidence corroborates the fact that injuries could have been caused by battering with stones; that the chemical analysis report shows that the blood group on the stones matches with the blood group found on the clothes of the appellant; that the appellant has not offered any explanation with regard to the recovery made at his instance; and that nothing has been stated in his examination under Section 313 Cr.P.C. that there was any justifiable reason to implicate him in the crime in question. Thus, we find that each of the incriminating circumstances has been clearly established and the chain of circumstances are conclusive in nature to exclude any kind of hypothesis, but the one proposed to be proved, and lead to a definite conclusion that the crime was committed by the accused. Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial Judge and affirmed by the High Court58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold | 0 | 14,352 | 1,420 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, for he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous. In this context, we may fruitfully refer to a passage from Shyam Narain V. State (NCT of Delhi) (2013) 7 SCC 77 , wherein it has been observed as follows: The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a tsunami of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity. In the said case, while describing the rape on an eight year old girl, the Court observed: Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age-old wise saying that child is a gift of the providence enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. 58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances. 59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances. 60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold.
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with blood, the clothes and the blood group matching is an important circumstance showing complicity of the appellant in the crime in question29. Another facet which has immense significance is the injury report. It graphically depicts the injuries on the private parts of the minor girl which has been caused by sexual intercourse. Stains of human blood of A group have also been noticed on the front portion of the nikar of the accused as per Exhibit 77 which matches the blood group found on the stones30. The other relevant circumstance that weighs against the appellant is that the dead body of the deceased was recovered at the instance of the appellant. It was within his special knowledge. The tap where he had washed his clothes was quite nearby. In this context, it is worthy to note that the accused had disclosed the facts and on the basis of his disclosure statement he had led to the place where the dead body of the victim was found35. On a critical analysis of the evidence on record, we are convinced that the circumstances that have been clearly established are that the appellant was seen in the courtyard where the minor girl and other children were playing; that the appellant was seen taking the deceased on his bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint chocolate along with her; that the accused had told PW-2 that the child was the daughter of his friend and he was going to Tekdi-Wadi along with the girl; that the appellant had led to discovery of the dead body of the deceased, the place where he had washed his clothes and at his instance the stones smeared with blood were recovered; that the medical report clearly indicates about the injuries sustained by the deceased on her body; that the injuries sustained on the private parts have been stated by the doctor to have been caused by forcible sexual intercourse; that the stones that were seized were smeared with blood and the medical evidence corroborates the fact that injuries could have been caused by battering with stones; that the chemical analysis report shows that the blood group on the stones matches with the blood group found on the clothes of the appellant; that the appellant has not offered any explanation with regard to the recovery made at his instance; and that nothing has been stated in his examination under Section 313 Cr.P.C. that there was any justifiable reason to implicate him in the crime in question. Thus, we find that each of the incriminating circumstances has been clearly established and the chain of circumstances are conclusive in nature to exclude any kind of hypothesis, but the one proposed to be proved, and lead to a definite conclusion that the crime was committed by the accused. Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial Judge and affirmed by the High Court58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold
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Jabalpur Bijlighar Karamcharipanchayat Vs. Jabalpur Electric Supply Co., Ltd. & Anr | by working on the Full Bench Formula of the Labour Appellate Tribunal. There can be no question that income-tax has to be notionally computed at 45% after deduction from the gross profits, the expenses shown in Ex. D-11 ending with notional normal depreciation and double shift depreciation. The Tribunal allowed Rupees 1,07,052 but the result of the addition to the gross profit of Rs. 8,88,598 (1) the difference in the value of the coal consumed, (2) the amount disallowed out of the furniture repairs and (3) the interest amount of Rupees 16,645/- the income-tax to be allowed in the working sheet would be Rupees 1,94,435/- in place of Rs. 1,07.052/-. 24. The last item disputed by the appellant was the return on working capital which was shown as Rupees 8,25,243/- in Ex. D-11. The evidence given on this head was that of Mr. B Chatterjee. He referred to various exhibits viz., D-22 to D-27 in this connection Ex. D-32 was a statement complied for showing reserves available as working capital. Exs. D-24 and D-25 went to show that at the relevant period, the company was borrowing moneys from the United Bank of India Ltd. The Tribunal accepted the companys case that Rs. 8,25,243/- should be taken to be the working capital of the company for the relevant year and return at 6 per cent, should be deducted to arrive at the available surplus for distribution. The evidence on this head was furnished by B. Chatterjee who said that the sum had been calculated as shown in Ex. D-11 in accordance with Clause XVII (e) of the Sixth Schedule to the Electricity Act, and this sum being the lesser of the two was incorporated in Ex. D-11. The details of the requirement of liquid funds to run the undertaking was given in Ex. D-16 In his cross examination Chatterjee said that besides the items shown in Ex. D-22 (statement of reserves) and other funds which had been used as working capital, the company had to take the loan in spite of these reserves which were already employed in the business as working capital. 25.Mr. Chagla contended that the working capital as computed in accordance with Schedule VII of the Electricity (Supply) Act being a statutory computation could be taken into account even for the working out of the Full Bench formula of the Labour Appellate Tribunal.In our view, this is not the correct position in law. In T. T. E. Supply Companys case, (1960) 3 SCR 68 = (AIR 1960 SC 782 ) (supra) the question considered by this Court was whether the Full Bench formula should be applied to an electric supply undertaking in preference to the provisions of the different clauses of paragraph xvii of the Sixth Schedule to the Electricity Supply Act and this Court concurred with the view expressed by the Labour Appellate Tribunal that even in such a case the Full Bench formula should be applied. In the Ahmedabad Miscellaneous Industrial Workers Unions case, (1962) 2 SCR 934 = (Air 1962 SC 1255 ) (supra) where one of the questions before this Court was whether depreciation should be calculated according to the provisions of the Income-tax Act and the rules framed thereunder or according to the provisions contained in the Seventh Schedule to the Electricity Supply Act, it was held that the rates prescribed under the rules framed under the Income-tax Act lay down the proper measure of depreciation to be allowed as in the view of this Court the field of industrial relations in connection with which the Full Bench formula was evolved, it was not proper to inject therein the provisions contained in the Seventh Schedule to the Electricity Supply Act. 26. There can be no dispute that a good portion of the reserve must have been utilised in running the company inasmuch as it was obliged to borrow moneys from the bank and pay interest thereon. It is highly unlikely that a company which had reserves as disclosed by its balance-sheet and profit and loss account would borrow moneys from a bank unless it was utilising the reserves for some other and more remunerative purpose. The balance-sheet and the profit and loss account negative such a view and loss account negative such a view and no evidence which throws light on the question was recorded. 27. We are however not called upon in this case to come to a finding as to how much of the reserves were utilised as working capital in view of the fact that even without taking this item into account, there is no available surplus left in terms of the working sheet which forms the basis for determining the available surplus. 28. The working sheet according to us should be altered as follows: To the figure Rs. 6,88,905 shown as surplus in Ex. D-11 after the deduction of various items of expenses should be added three figures i.e. (1) coal and fuel Rs. 1,57,428/- (2) furniture account Rs. 20,612 and (3) interest Rs. 16,545/- making a total of Rs. 8,83,490/-as gross profits. From this will have to be deducted Rs. 4,51,011 being the sum of notional normal depreciation of Rs. 3,55,755 and double shift depreciation Rupees 95,256/-. This leaves a balance of Rs. 4,32,439. From this will have to be deducted the income-tax of 45%which in view of the addition of the items regarding coal, furniture and interest should be Rs. 1,94,615 in place of Rs. 107,052 as shown in Ex. D-11 Deducting this from Rs. 4,32,479 the balance left is Rs. 2,37,864. From this has to be deducted the statutory contingencies reserve and the statutory development reserve and 6 per cent. on the share capital of Rs. 22,49,850/- there being no dispute as to these figures. The result in that from the figure of Rs. 2,37,364 there has to be deducted a sum of Rs. 2,38,585 which leaves a negative balance of Rs. 721.The case of the appellant for showing an available surplus for distribution therefore disappears. | 0[ds]7. The above statement of facts makes it amply clear that although the employees received at least 10% of their total earnings by way of bonus for the years 1940-41 to 1959-60 there was no consistency in the claim to bonus throughout this period, nor was there any uniformity either in the amounts paid or the grounds under which the several awards of bonus came to be made. The only award which indicated that the bonus was to be regarded as a Diwali bonus was that of Justice Bhat for the period 1957-58 to 1959-60. For the period 1940-41 to 1956-57 the company never paid bonus as a festival bonus on the occasion of the Diwali. The amount was mostly paid under awards but in between the awards there was a period when it was paid by express agreement between the parties14. The above decision all go to negative the claim of the appellant before us. The only fact about which there can be no doubt is that payment was made at the rate of 10 per cent. for a large number of years with an intervening period when it was made at the rate of 11 per cent. The facts do not warrant any conclusion as to the payment being related either to any festival or under an implied term of employment between the parties. It will be noted that for the very first period i.e. the years from 1940-41 to 1945-46 there was no claim for the payment of either customary bonus or a festival bonus. On the other hand the express claim was made for War bonus. The major part of the entire period was covered by awards and excepting in one of these awards there was no reference to any festival bonus. There was an intervening period which, as already noted, was covered by an express agreement between by an express agreement between the parties. The rate too, as already shown, was not uniform. Consequently the claim made by the appellants that they should be paid 10 per cent. either as festival bonus or under an implied term of employment cannot be acceptedBut this in our opinion cannot be accepted as the available surplus has to be found out by working on the Full Bench Formula of the Labour Appellate Tribunal. There can be no question that income-tax has to be notionally computed at 45% after deduction from the gross profits, the expenses shown in Ex. D-11 ending with notional normal depreciation and double shift depreciation. The Tribunal allowed Rupees 1,07,052 but the result of the addition to the gross profit of Rs. 8,88,598 (1) the difference in the value of the coal consumed, (2) the amount disallowed out of the furniture repairs and (3) the interest amount of Rupees 16,645/- the income-tax to be allowed in the working sheet would be Rupees 1,94,435/- in place of Rs. 1,07.052/-24. The last item disputed by the appellant was the return on working capital which was shown as Rupees 8,25,243/- in Ex. D-11. The evidence given on this head was that of Mr. B ChatterjeeHe referred to various exhibits viz., D-22 to D-27 in this connection Ex. D-32 was a statement complied for showing reserves available as working capital. Exs. D-24 and D-25 went to show that at the relevant period, the company was borrowing moneys from the United Bank of India Ltd. The Tribunal accepted the companys case that Rs. 8,25,243/- should be taken to be the working capital of the company for the relevant year and return at 6 per cent, should be deducted to arrive at the available surplus for distribution. The evidence on this head was furnished by B. Chatterjee who said that the sum had been calculated as shown in Ex. D-11 in accordance with Clause XVII (e) of the Sixth Schedule to the Electricity Act, and this sum being the lesser of the two was incorporated in Ex. D-11. The details of the requirement of liquid funds to run the undertaking was given in Ex. D-16 In his cross examination Chatterjee said that besides the items shown in Ex. D-22 (statement of reserves) and other funds which had been used as working capital, the company had to take the loan in spite of these reserves which were already employed in the business as working capitalIn our view, this is not the correct position in law. In T. T. E. Supply Companys case, (1960) 3 SCR 68 = (AIR 1960 SC 782 ) (supra) the question considered by this Court was whether the Full Bench formula should be applied to an electric supply undertaking in preference to the provisions of the different clauses of paragraph xvii of the Sixth Schedule to the Electricity Supply Act and this Court concurred with the view expressed by the Labour Appellate Tribunal that even in such a case the Full Bench formula should be applied. In the Ahmedabad Miscellaneous Industrial Workers Unions case, (1962) 2 SCR 934 = (Air 1962 SC 1255 ) (supra) where one of the questions before this Court was whether depreciation should be calculated according to the provisions of the Income-tax Act and the rules framed thereunder or according to the provisions contained in the Seventh Schedule to the Electricity Supply Act, it was held that the rates prescribed under the rules framed under the Income-tax Act lay down the proper measure of depreciation to be allowed as in the view of this Court the field of industrial relations in connection with which the Full Bench formula was evolved, it was not proper to inject therein the provisions contained in the Seventh Schedule to the Electricity Supply Act26. There can be no dispute that a good portion of the reserve must have been utilised in running the company inasmuch as it was obliged to borrow moneys from the bank and pay interest thereon. It is highly unlikely that a company which had reserves as disclosed by its balance-sheet and profit and loss account would borrow moneys from a bank unless it was utilising the reserves for some other and more remunerative purpose. The balance-sheet and the profit and loss account negative such a view and loss account negative such a view and no evidence which throws light on the question was recorded27. We are however not called upon in this case to come to a finding as to how much of the reserves were utilised as working capital in view of the fact that even without taking this item into account, there is no available surplus left in terms of the working sheet which forms the basis for determining the available surplus28. The working sheet according to us should be altered as follows: To the figure Rs. 6,88,905 shown as surplus in Ex. D-11 after the deduction of various items of expenses should be added three figures i.e. (1) coal and fuel Rs. 1,57,428/- (2) furniture account Rs. 20,612 and (3) interest Rs. 16,545/- making a total of Rs. 8,83,490/-as gross profits. From this will have to be deducted Rs. 4,51,011 being the sum of notional normal depreciation of Rs. 3,55,755 and double shift depreciation Rupees 95,256/-. This leaves a balance of Rs. 4,32,439. From this will have to be deducted the income-tax of 45%which in view of the addition of the items regarding coal, furniture and interest should be Rs. 1,94,615 in place of Rs. 107,052 as shown in Ex. D-11 Deducting this from Rs. 4,32,479 the balance left is Rs. 2,37,864. From this has to be deducted the statutory contingencies reserve and the statutory development reserve and 6 per cent. on the share capital of Rs. 22,49,850/- there being no dispute as to these figures. The result in that from the figure of Rs. 2,37,364 there has to be deducted a sum of Rs. 2,38,585 which leaves a negative balance of Rs. 721.The case of the appellant for showing an available surplus for distribution therefore disappears. | 0 | 7,514 | 1,449 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
by working on the Full Bench Formula of the Labour Appellate Tribunal. There can be no question that income-tax has to be notionally computed at 45% after deduction from the gross profits, the expenses shown in Ex. D-11 ending with notional normal depreciation and double shift depreciation. The Tribunal allowed Rupees 1,07,052 but the result of the addition to the gross profit of Rs. 8,88,598 (1) the difference in the value of the coal consumed, (2) the amount disallowed out of the furniture repairs and (3) the interest amount of Rupees 16,645/- the income-tax to be allowed in the working sheet would be Rupees 1,94,435/- in place of Rs. 1,07.052/-. 24. The last item disputed by the appellant was the return on working capital which was shown as Rupees 8,25,243/- in Ex. D-11. The evidence given on this head was that of Mr. B Chatterjee. He referred to various exhibits viz., D-22 to D-27 in this connection Ex. D-32 was a statement complied for showing reserves available as working capital. Exs. D-24 and D-25 went to show that at the relevant period, the company was borrowing moneys from the United Bank of India Ltd. The Tribunal accepted the companys case that Rs. 8,25,243/- should be taken to be the working capital of the company for the relevant year and return at 6 per cent, should be deducted to arrive at the available surplus for distribution. The evidence on this head was furnished by B. Chatterjee who said that the sum had been calculated as shown in Ex. D-11 in accordance with Clause XVII (e) of the Sixth Schedule to the Electricity Act, and this sum being the lesser of the two was incorporated in Ex. D-11. The details of the requirement of liquid funds to run the undertaking was given in Ex. D-16 In his cross examination Chatterjee said that besides the items shown in Ex. D-22 (statement of reserves) and other funds which had been used as working capital, the company had to take the loan in spite of these reserves which were already employed in the business as working capital. 25.Mr. Chagla contended that the working capital as computed in accordance with Schedule VII of the Electricity (Supply) Act being a statutory computation could be taken into account even for the working out of the Full Bench formula of the Labour Appellate Tribunal.In our view, this is not the correct position in law. In T. T. E. Supply Companys case, (1960) 3 SCR 68 = (AIR 1960 SC 782 ) (supra) the question considered by this Court was whether the Full Bench formula should be applied to an electric supply undertaking in preference to the provisions of the different clauses of paragraph xvii of the Sixth Schedule to the Electricity Supply Act and this Court concurred with the view expressed by the Labour Appellate Tribunal that even in such a case the Full Bench formula should be applied. In the Ahmedabad Miscellaneous Industrial Workers Unions case, (1962) 2 SCR 934 = (Air 1962 SC 1255 ) (supra) where one of the questions before this Court was whether depreciation should be calculated according to the provisions of the Income-tax Act and the rules framed thereunder or according to the provisions contained in the Seventh Schedule to the Electricity Supply Act, it was held that the rates prescribed under the rules framed under the Income-tax Act lay down the proper measure of depreciation to be allowed as in the view of this Court the field of industrial relations in connection with which the Full Bench formula was evolved, it was not proper to inject therein the provisions contained in the Seventh Schedule to the Electricity Supply Act. 26. There can be no dispute that a good portion of the reserve must have been utilised in running the company inasmuch as it was obliged to borrow moneys from the bank and pay interest thereon. It is highly unlikely that a company which had reserves as disclosed by its balance-sheet and profit and loss account would borrow moneys from a bank unless it was utilising the reserves for some other and more remunerative purpose. The balance-sheet and the profit and loss account negative such a view and loss account negative such a view and no evidence which throws light on the question was recorded. 27. We are however not called upon in this case to come to a finding as to how much of the reserves were utilised as working capital in view of the fact that even without taking this item into account, there is no available surplus left in terms of the working sheet which forms the basis for determining the available surplus. 28. The working sheet according to us should be altered as follows: To the figure Rs. 6,88,905 shown as surplus in Ex. D-11 after the deduction of various items of expenses should be added three figures i.e. (1) coal and fuel Rs. 1,57,428/- (2) furniture account Rs. 20,612 and (3) interest Rs. 16,545/- making a total of Rs. 8,83,490/-as gross profits. From this will have to be deducted Rs. 4,51,011 being the sum of notional normal depreciation of Rs. 3,55,755 and double shift depreciation Rupees 95,256/-. This leaves a balance of Rs. 4,32,439. From this will have to be deducted the income-tax of 45%which in view of the addition of the items regarding coal, furniture and interest should be Rs. 1,94,615 in place of Rs. 107,052 as shown in Ex. D-11 Deducting this from Rs. 4,32,479 the balance left is Rs. 2,37,864. From this has to be deducted the statutory contingencies reserve and the statutory development reserve and 6 per cent. on the share capital of Rs. 22,49,850/- there being no dispute as to these figures. The result in that from the figure of Rs. 2,37,364 there has to be deducted a sum of Rs. 2,38,585 which leaves a negative balance of Rs. 721.The case of the appellant for showing an available surplus for distribution therefore disappears.
### Response:
0
### Explanation:
claim made by the appellants that they should be paid 10 per cent. either as festival bonus or under an implied term of employment cannot be acceptedBut this in our opinion cannot be accepted as the available surplus has to be found out by working on the Full Bench Formula of the Labour Appellate Tribunal. There can be no question that income-tax has to be notionally computed at 45% after deduction from the gross profits, the expenses shown in Ex. D-11 ending with notional normal depreciation and double shift depreciation. The Tribunal allowed Rupees 1,07,052 but the result of the addition to the gross profit of Rs. 8,88,598 (1) the difference in the value of the coal consumed, (2) the amount disallowed out of the furniture repairs and (3) the interest amount of Rupees 16,645/- the income-tax to be allowed in the working sheet would be Rupees 1,94,435/- in place of Rs. 1,07.052/-24. The last item disputed by the appellant was the return on working capital which was shown as Rupees 8,25,243/- in Ex. D-11. The evidence given on this head was that of Mr. B ChatterjeeHe referred to various exhibits viz., D-22 to D-27 in this connection Ex. D-32 was a statement complied for showing reserves available as working capital. Exs. D-24 and D-25 went to show that at the relevant period, the company was borrowing moneys from the United Bank of India Ltd. The Tribunal accepted the companys case that Rs. 8,25,243/- should be taken to be the working capital of the company for the relevant year and return at 6 per cent, should be deducted to arrive at the available surplus for distribution. The evidence on this head was furnished by B. Chatterjee who said that the sum had been calculated as shown in Ex. D-11 in accordance with Clause XVII (e) of the Sixth Schedule to the Electricity Act, and this sum being the lesser of the two was incorporated in Ex. D-11. The details of the requirement of liquid funds to run the undertaking was given in Ex. D-16 In his cross examination Chatterjee said that besides the items shown in Ex. D-22 (statement of reserves) and other funds which had been used as working capital, the company had to take the loan in spite of these reserves which were already employed in the business as working capitalIn our view, this is not the correct position in law. In T. T. E. Supply Companys case, (1960) 3 SCR 68 = (AIR 1960 SC 782 ) (supra) the question considered by this Court was whether the Full Bench formula should be applied to an electric supply undertaking in preference to the provisions of the different clauses of paragraph xvii of the Sixth Schedule to the Electricity Supply Act and this Court concurred with the view expressed by the Labour Appellate Tribunal that even in such a case the Full Bench formula should be applied. In the Ahmedabad Miscellaneous Industrial Workers Unions case, (1962) 2 SCR 934 = (Air 1962 SC 1255 ) (supra) where one of the questions before this Court was whether depreciation should be calculated according to the provisions of the Income-tax Act and the rules framed thereunder or according to the provisions contained in the Seventh Schedule to the Electricity Supply Act, it was held that the rates prescribed under the rules framed under the Income-tax Act lay down the proper measure of depreciation to be allowed as in the view of this Court the field of industrial relations in connection with which the Full Bench formula was evolved, it was not proper to inject therein the provisions contained in the Seventh Schedule to the Electricity Supply Act26. There can be no dispute that a good portion of the reserve must have been utilised in running the company inasmuch as it was obliged to borrow moneys from the bank and pay interest thereon. It is highly unlikely that a company which had reserves as disclosed by its balance-sheet and profit and loss account would borrow moneys from a bank unless it was utilising the reserves for some other and more remunerative purpose. The balance-sheet and the profit and loss account negative such a view and loss account negative such a view and no evidence which throws light on the question was recorded27. We are however not called upon in this case to come to a finding as to how much of the reserves were utilised as working capital in view of the fact that even without taking this item into account, there is no available surplus left in terms of the working sheet which forms the basis for determining the available surplus28. The working sheet according to us should be altered as follows: To the figure Rs. 6,88,905 shown as surplus in Ex. D-11 after the deduction of various items of expenses should be added three figures i.e. (1) coal and fuel Rs. 1,57,428/- (2) furniture account Rs. 20,612 and (3) interest Rs. 16,545/- making a total of Rs. 8,83,490/-as gross profits. From this will have to be deducted Rs. 4,51,011 being the sum of notional normal depreciation of Rs. 3,55,755 and double shift depreciation Rupees 95,256/-. This leaves a balance of Rs. 4,32,439. From this will have to be deducted the income-tax of 45%which in view of the addition of the items regarding coal, furniture and interest should be Rs. 1,94,615 in place of Rs. 107,052 as shown in Ex. D-11 Deducting this from Rs. 4,32,479 the balance left is Rs. 2,37,864. From this has to be deducted the statutory contingencies reserve and the statutory development reserve and 6 per cent. on the share capital of Rs. 22,49,850/- there being no dispute as to these figures. The result in that from the figure of Rs. 2,37,364 there has to be deducted a sum of Rs. 2,38,585 which leaves a negative balance of Rs. 721.The case of the appellant for showing an available surplus for distribution therefore disappears.
|
Yasodhar Kamat Vs. The Director General, Border Security Force and Others | Dr. Dhananjaya Y Chandrachud1. Leave granted.2. This appeal arises from a judgment of a Division Bench of the High Court of Judicature at Patna dated 11 August 2016. While allowing a Letters Patent Appeal, the Division Bench reversed the judgment of a learned Single Judge by which the dismissal of the appellant from service was set aside and the proceedings were remitted back to the Director General of the Border Security Force(BSF) to examine the quantum of punishment afresh, subject to the caveat that the alternate punishment to be imposed should not either be a dismissal or removal from service.3. The appellant was enrolled as a constable in the BSF on 2 January 1990. He had 17 years of service by the date of the incident. The appellant applied for leave from 10 February 2007 to 1 March 2007, which was sanctioned. The cause of misconduct arose because he rejoined his duties on 4 April 2007. On 16 April 2007, he was charged with a misconduct under Section 19 (b) of the BSF Act 1968. Following the convening of a Summary Security Force Court, the appellant was dismissed from service. A statutory petition filed by the appellant was dismissed by the Director General, BSF on 13 June 2007.4. The High Court was moved under Article 226 of the Constitution. On 29 July 2013, a learned Single Judge came to the conclusion that the dismissal of the appellant from service was contrary to law and accordingly the proceedings were remitted back for reconsideration of the quantum of punishment. This order of the learned Single Judge has been reversed by the Division Bench in appeal.5. From the order of the Director General, BSF on the statutory petition, it is evident that the appellant had contacted the Unit Adjutant for extension of leave on the ground that his niece had been abducted and that other pressing family circumstances necessitated an extension. This aspect has been recorded in the order dated 13 June 2007 in the following terms:?It is on record that the petitioner while on leave had contacted the Unit Adjutant for extension of leave for searching his niece who was reportedly kidnapped. Shri V S Shekhawat, DC / Adjutant deposed in his statement in the ROE that the petitioner did talk to him on mobile for extension of leave and he in turn asked the petitioner to apply for extension of leave through telegram for a week or so.? 6. Moreover, the learned Single Judge, in the course of his judgment, extracted the oral statement of the appellant which had been noticed by the appellate authority. The oral statement was to the following effect:?4……. ?I was granted 15 days CL w.e.f. 10-02-07 to 1-3-07 due to my niece kidnapping. However, I had requested to my Offg Coy Comdr to grant 30 days EL. But I was granted 15 days CL only. When I reached at my native place, I tried my best to find out my niece; later on I came to know that she is staying in Delhi. I left for Delhi on 15-02-07. I had given information about the kidnapping of my niece to Unit Adjutant Shri V S Shekhawat Dy Comdt on Mobile on 25, 26 Apr 07 and requested him for extension of leave. He told me that your CL will be converted into EL if you have not availed EL of this year. On 21-03-07, I sent a letter to Bn HQ regarding extension of leave. I could recover my niece on 27-02-07. It stayed 6 to 7 days at Delhi at the residence of my relatives with my niece. I reached at my home on 08 Mar with my niece. After settled down this problem I sent her to her husband?s house on 17-03-07. On 25- 03-07, the stomach operation of wife of my nephew was conducted. Medical documents alongwith discharge certificate I have already deposited to this HQ alongwith my application. There was no responsible person present at my home to settle down this problem. However, I overstayed only after getting assurance of extension from leave to Unit Adjutant.? 7. The position which emerges then is that the appellant had contacted his Unit Adjutant for extension of leave. The Division Bench observed that the appellant had submitted an application for extension of leave belatedly and that as a member of the disciplined force, his conduct could not be condoned. The appellant had furnished an explanation for seeking a further extension. That explanation has not been rejected as being either false or incorrect. The appellant had seventeen years of service. Undoubtedly, the record indicates that in the past he was penalized for being unauthorized absence without leave. His past conduct, in our view, would militate against the grant of an order of reinstatement in service which we decline to do. In fairness, we also note that this is not the submission of the appellant before the Court. However, having regard to the fact that the appellant had nearly seventeen years of service, we are of the view that, in the peculiar facts and circumstances of the case, an appropriate view needs to be taken so as to facilitate the appellant being granted pension after completion of twenty years of pensionable service. This is in view of the fact that the imposition of the penalty of dismissal would be disproportionate having regard to the material which has emerged from the record. | 0[ds]7. The position which emerges then is that the appellant had contacted his Unit Adjutant for extension of leave. The Division Bench observed that the appellant had submitted an application for extension of leave belatedly and that as a member of the disciplined force, his conduct could not be condoned. The appellant had furnished an explanation for seeking a further extension. That explanation has not been rejected as being either false or incorrect. The appellant had seventeen years of service. Undoubtedly, the record indicates that in the past he was penalized for being unauthorized absence without leave. His past conduct, in our view, would militate against the grant of an order of reinstatement in service which we decline to do. In fairness, we also note that this is not the submission of the appellant before the Court. However, having regard to the fact that the appellant had nearly seventeen years of service, we are of the view that, in the peculiar facts and circumstances of the case, an appropriate view needs to be taken so as to facilitate the appellant being granted pension after completion of twenty years of pensionable service. This is in view of the fact that the imposition of the penalty of dismissal would be disproportionate having regard to the material which has emerged from the record. | 0 | 995 | 244 | ### 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:
Dr. Dhananjaya Y Chandrachud1. Leave granted.2. This appeal arises from a judgment of a Division Bench of the High Court of Judicature at Patna dated 11 August 2016. While allowing a Letters Patent Appeal, the Division Bench reversed the judgment of a learned Single Judge by which the dismissal of the appellant from service was set aside and the proceedings were remitted back to the Director General of the Border Security Force(BSF) to examine the quantum of punishment afresh, subject to the caveat that the alternate punishment to be imposed should not either be a dismissal or removal from service.3. The appellant was enrolled as a constable in the BSF on 2 January 1990. He had 17 years of service by the date of the incident. The appellant applied for leave from 10 February 2007 to 1 March 2007, which was sanctioned. The cause of misconduct arose because he rejoined his duties on 4 April 2007. On 16 April 2007, he was charged with a misconduct under Section 19 (b) of the BSF Act 1968. Following the convening of a Summary Security Force Court, the appellant was dismissed from service. A statutory petition filed by the appellant was dismissed by the Director General, BSF on 13 June 2007.4. The High Court was moved under Article 226 of the Constitution. On 29 July 2013, a learned Single Judge came to the conclusion that the dismissal of the appellant from service was contrary to law and accordingly the proceedings were remitted back for reconsideration of the quantum of punishment. This order of the learned Single Judge has been reversed by the Division Bench in appeal.5. From the order of the Director General, BSF on the statutory petition, it is evident that the appellant had contacted the Unit Adjutant for extension of leave on the ground that his niece had been abducted and that other pressing family circumstances necessitated an extension. This aspect has been recorded in the order dated 13 June 2007 in the following terms:?It is on record that the petitioner while on leave had contacted the Unit Adjutant for extension of leave for searching his niece who was reportedly kidnapped. Shri V S Shekhawat, DC / Adjutant deposed in his statement in the ROE that the petitioner did talk to him on mobile for extension of leave and he in turn asked the petitioner to apply for extension of leave through telegram for a week or so.? 6. Moreover, the learned Single Judge, in the course of his judgment, extracted the oral statement of the appellant which had been noticed by the appellate authority. The oral statement was to the following effect:?4……. ?I was granted 15 days CL w.e.f. 10-02-07 to 1-3-07 due to my niece kidnapping. However, I had requested to my Offg Coy Comdr to grant 30 days EL. But I was granted 15 days CL only. When I reached at my native place, I tried my best to find out my niece; later on I came to know that she is staying in Delhi. I left for Delhi on 15-02-07. I had given information about the kidnapping of my niece to Unit Adjutant Shri V S Shekhawat Dy Comdt on Mobile on 25, 26 Apr 07 and requested him for extension of leave. He told me that your CL will be converted into EL if you have not availed EL of this year. On 21-03-07, I sent a letter to Bn HQ regarding extension of leave. I could recover my niece on 27-02-07. It stayed 6 to 7 days at Delhi at the residence of my relatives with my niece. I reached at my home on 08 Mar with my niece. After settled down this problem I sent her to her husband?s house on 17-03-07. On 25- 03-07, the stomach operation of wife of my nephew was conducted. Medical documents alongwith discharge certificate I have already deposited to this HQ alongwith my application. There was no responsible person present at my home to settle down this problem. However, I overstayed only after getting assurance of extension from leave to Unit Adjutant.? 7. The position which emerges then is that the appellant had contacted his Unit Adjutant for extension of leave. The Division Bench observed that the appellant had submitted an application for extension of leave belatedly and that as a member of the disciplined force, his conduct could not be condoned. The appellant had furnished an explanation for seeking a further extension. That explanation has not been rejected as being either false or incorrect. The appellant had seventeen years of service. Undoubtedly, the record indicates that in the past he was penalized for being unauthorized absence without leave. His past conduct, in our view, would militate against the grant of an order of reinstatement in service which we decline to do. In fairness, we also note that this is not the submission of the appellant before the Court. However, having regard to the fact that the appellant had nearly seventeen years of service, we are of the view that, in the peculiar facts and circumstances of the case, an appropriate view needs to be taken so as to facilitate the appellant being granted pension after completion of twenty years of pensionable service. This is in view of the fact that the imposition of the penalty of dismissal would be disproportionate having regard to the material which has emerged from the record.
### Response:
0
### Explanation:
7. The position which emerges then is that the appellant had contacted his Unit Adjutant for extension of leave. The Division Bench observed that the appellant had submitted an application for extension of leave belatedly and that as a member of the disciplined force, his conduct could not be condoned. The appellant had furnished an explanation for seeking a further extension. That explanation has not been rejected as being either false or incorrect. The appellant had seventeen years of service. Undoubtedly, the record indicates that in the past he was penalized for being unauthorized absence without leave. His past conduct, in our view, would militate against the grant of an order of reinstatement in service which we decline to do. In fairness, we also note that this is not the submission of the appellant before the Court. However, having regard to the fact that the appellant had nearly seventeen years of service, we are of the view that, in the peculiar facts and circumstances of the case, an appropriate view needs to be taken so as to facilitate the appellant being granted pension after completion of twenty years of pensionable service. This is in view of the fact that the imposition of the penalty of dismissal would be disproportionate having regard to the material which has emerged from the record.
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UNION OF INDIA Vs. ALL INDIA TRADE UNION CONGRESS | following the due process of law.J. The Union of India is directed that all the causal labourers who receive injuries, while discharging the duties in harsh conditions in border areas, should be treated in Military Hospitals free-of-cost. The Union of India is also directed that the casual labourers from the camping site of construction should be transported in buses and not in open trucks.”8. It is against this order, the appellant (Union of India) have felt aggrieved and filed the present appeal by way of special leave in this Court.9. So, the short question, which arises for consideration, is whether the High Court (Single Judge and Division Bench) was justified in allowing the respondents’ writ petition and was justified in issuing the directions after framing a Scheme itself in the nature of mandamus against the appellant-UOI to frame a scheme for providing specific kinds of facilities/benefits to the casual workers working in BRO in the State of Uttarakhand in construction activities.10. Heard Mr. Ajit K. Sinha, learned senior counsel for the appellants and Mr. Colin Gonsalves, learned senior counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order dismiss the writ petition filed by the respondents.12. It may not be necessary to elaborately deal with the issues arising in the case because we are of the view that the issue involved in this appeal is no longer res integra and settled by the decision of this Court in Union of India vs. Vartak Labour Union (2) [(2014) 4 SCC 200].13. That was also a case where the Union of workers namely “Vartak Labour Union” had claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court. This Court allowed the appeal and set aside the order of the Gauhati High Court with the following observations:“17. We are of the opinion that the respondent Union’s claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of Karnataka v. Umadevi (3); Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra Mondal; Satya Prakash v. State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]22. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularisation of the services of the casual workers engaged by the BRO for execution of its ongoing projects. 23. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs.”14. Keeping in view the law laid down by this Court in the case of Union of India (supra) when we examine the facts of the case at hand, we find that the facts of the case at hand and the one which were subject matter in the case of Union of India (supra) are identical in all respects except that name of the Trade Union of workers and place of working in both the cases are different, which is hardly of any significance.15. The High Court, in our view, should have, therefore, examined the case in the light of the law laid down by this Court in the case of Union of India (supra) rather than to evolve its own separate scheme.16. The High Court failed to see that it is not the function of the Courts to frame any Scheme but it is the sole prerogative of the Government to do it.17. All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the Government to consider for framing an appropriate Scheme having regard to the facts and circumstances of any case which this Court did in the case of Union of India(supra) but not beyond it. It is only in an exceptional case where the Court considers it proper to issue appropriate mandatory directions it may do so but not otherwise.18. It is not in dispute that the appellant-Union of India has now framed a welfare scheme for all such casual workers. The salient features of the welfare scheme and the benefits which are being extended to all such casual workers are set out in Para 14 (i) to (xii) of the petition. (see page M to R of SLP paper book)19. Learned counsel for the respondents by placing reliance on a scheme(Annexure R-2) contended that it is this scheme which should have been implemented. We find no merit in this submission. This issue, we find, was already considered in the case of Union of India (supra) and rejected. | 1[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order dismiss the writ petition filed by the respondents.12. It may not be necessary to elaborately deal with the issues arising in the case because we are of the view that the issue involved in this appeal is no longer res integra and settled by the decision of this Court in Union of India vs. Vartak Labour Union (2) [(2014) 4 SCC 200].13. That was also a case where the Union of workers namelyhad claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court.Keeping in view the law laid down by this Court in the case of Union of India (supra) when we examine the facts of the case at hand, we find that the facts of the case at hand and the one which were subject matter in the case of Union of India (supra) are identical in all respects except that name of the Trade Union of workers and place of working in both the cases are different, which is hardly of any significance.15. The High Court, in our view, should have, therefore, examined the case in the light of the law laid down by this Court in the case of Union of India (supra) rather than to evolve its own separate scheme.16. The High Court failed to see that it is not the function of the Courts to frame any Scheme but it is the sole prerogative of the Government to do it.17. All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the Government to consider for framing an appropriate Scheme having regard to the facts and circumstances of any case which this Court did in the case of Union of India(supra) but not beyond it. It is only in an exceptional case where the Court considers it proper to issue appropriate mandatory directions it may do so but not otherwise.18. It is not in dispute that the appellant-Union of India has now framed a welfare scheme for all such casual workers. The salient features of the welfare scheme and the benefits which are being extended to all such casual workers are set out in Para 14 (i) to (xii) of the petition. (see page M to R of SLP paper book)19. Learned counsel for the respondents by placing reliance on a scheme(Annexure R-2) contended that it is this scheme which should have been implemented. We find no merit in this submission. This issue, we find, was already considered in the case of Union of India (supra) and rejected. | 1 | 2,100 | 604 | ### 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:
following the due process of law.J. The Union of India is directed that all the causal labourers who receive injuries, while discharging the duties in harsh conditions in border areas, should be treated in Military Hospitals free-of-cost. The Union of India is also directed that the casual labourers from the camping site of construction should be transported in buses and not in open trucks.”8. It is against this order, the appellant (Union of India) have felt aggrieved and filed the present appeal by way of special leave in this Court.9. So, the short question, which arises for consideration, is whether the High Court (Single Judge and Division Bench) was justified in allowing the respondents’ writ petition and was justified in issuing the directions after framing a Scheme itself in the nature of mandamus against the appellant-UOI to frame a scheme for providing specific kinds of facilities/benefits to the casual workers working in BRO in the State of Uttarakhand in construction activities.10. Heard Mr. Ajit K. Sinha, learned senior counsel for the appellants and Mr. Colin Gonsalves, learned senior counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order dismiss the writ petition filed by the respondents.12. It may not be necessary to elaborately deal with the issues arising in the case because we are of the view that the issue involved in this appeal is no longer res integra and settled by the decision of this Court in Union of India vs. Vartak Labour Union (2) [(2014) 4 SCC 200].13. That was also a case where the Union of workers namely “Vartak Labour Union” had claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court. This Court allowed the appeal and set aside the order of the Gauhati High Court with the following observations:“17. We are of the opinion that the respondent Union’s claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of Karnataka v. Umadevi (3); Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra Mondal; Satya Prakash v. State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]22. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularisation of the services of the casual workers engaged by the BRO for execution of its ongoing projects. 23. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs.”14. Keeping in view the law laid down by this Court in the case of Union of India (supra) when we examine the facts of the case at hand, we find that the facts of the case at hand and the one which were subject matter in the case of Union of India (supra) are identical in all respects except that name of the Trade Union of workers and place of working in both the cases are different, which is hardly of any significance.15. The High Court, in our view, should have, therefore, examined the case in the light of the law laid down by this Court in the case of Union of India (supra) rather than to evolve its own separate scheme.16. The High Court failed to see that it is not the function of the Courts to frame any Scheme but it is the sole prerogative of the Government to do it.17. All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the Government to consider for framing an appropriate Scheme having regard to the facts and circumstances of any case which this Court did in the case of Union of India(supra) but not beyond it. It is only in an exceptional case where the Court considers it proper to issue appropriate mandatory directions it may do so but not otherwise.18. It is not in dispute that the appellant-Union of India has now framed a welfare scheme for all such casual workers. The salient features of the welfare scheme and the benefits which are being extended to all such casual workers are set out in Para 14 (i) to (xii) of the petition. (see page M to R of SLP paper book)19. Learned counsel for the respondents by placing reliance on a scheme(Annexure R-2) contended that it is this scheme which should have been implemented. We find no merit in this submission. This issue, we find, was already considered in the case of Union of India (supra) and rejected.
### Response:
1
### Explanation:
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order dismiss the writ petition filed by the respondents.12. It may not be necessary to elaborately deal with the issues arising in the case because we are of the view that the issue involved in this appeal is no longer res integra and settled by the decision of this Court in Union of India vs. Vartak Labour Union (2) [(2014) 4 SCC 200].13. That was also a case where the Union of workers namelyhad claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court.Keeping in view the law laid down by this Court in the case of Union of India (supra) when we examine the facts of the case at hand, we find that the facts of the case at hand and the one which were subject matter in the case of Union of India (supra) are identical in all respects except that name of the Trade Union of workers and place of working in both the cases are different, which is hardly of any significance.15. The High Court, in our view, should have, therefore, examined the case in the light of the law laid down by this Court in the case of Union of India (supra) rather than to evolve its own separate scheme.16. The High Court failed to see that it is not the function of the Courts to frame any Scheme but it is the sole prerogative of the Government to do it.17. All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the Government to consider for framing an appropriate Scheme having regard to the facts and circumstances of any case which this Court did in the case of Union of India(supra) but not beyond it. It is only in an exceptional case where the Court considers it proper to issue appropriate mandatory directions it may do so but not otherwise.18. It is not in dispute that the appellant-Union of India has now framed a welfare scheme for all such casual workers. The salient features of the welfare scheme and the benefits which are being extended to all such casual workers are set out in Para 14 (i) to (xii) of the petition. (see page M to R of SLP paper book)19. Learned counsel for the respondents by placing reliance on a scheme(Annexure R-2) contended that it is this scheme which should have been implemented. We find no merit in this submission. This issue, we find, was already considered in the case of Union of India (supra) and rejected.
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ANIL KAK Vs. KUMARI SHARADA RAJE AND OTHERS | attest and extrinsic evidence on this point is receivable. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende Vs. Tarabai Aba Shedage, and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. [See also Adivekka and Others Vs. Hanamavva Kom Venkatesh D by LRs. and Another, ] 40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held: 46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved. In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated: However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held: 18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant. 42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence. | 0[ds]11. The learned Counsel appearing for both the parties, have addressed us on the merit of the matter. We are not considering the correctness or otherwise of the judgment of the Division Bench of the High Court holding the Letters Patent Appeals to be not maintainable, nor it is necessary for us so to do.12. We may also at the outset place on record that no argument has been advanced in regard to the findings of the learned Single Judge of the High Court refusing to grant letters of administration in respect of the Will dated 23.08.1978 of the testatrix.18. Although all the four daughters of the testatrix were the beneficiaries of the properties described in Part A of the Will, detailed directions as to how the said estate is to be administered had been made therein. Even in relation to the criteria as regards distribution of assets including the manner in which the tax and other liabilities are to be made and how the investments with banks and others are to be encashed, if necessary to be encashed have been stated. More importantly, however, the shares in the companies were to be held in the joint names of the testatrix as also the joint executors. The executors were to hold the same in trust. Whether the said direction had been carried out and, if so, how and in what manner is not known. Executors had also been granted express power to recall and repossess the jewellery, money or moneys wroth possessed by any beneficiary of the Will or legatee but ownership of which was not conferred on them for the purpose of meeting government dues, liabilities or expenses20. The Will was purported to have been executed in presence of one Shanta Kumari Jain, a notary. Two medical certificates; one issued by Dr. S.K. Mukherjee and the other by Dr. Normal Sharma, were also annexed thereto.21. It is not denied or disputed that the Appellant Anil Kak took an active part in the matter of preparation and execution of the Will.For proving the said Will, the Appellants examined one of the executors, viz., Kumar Rampratap Singh as PW-1. He was not aware of the contents of the Will. It was handed over to him on 10.09.1993 by Shri T.N. Unni (PW-6), Chartered Accountant. It was in turn handed over to Anil Kak. The said Will was not executed in his presence. He was not even aware of the execution thereof.22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting witnesses and T.N. Unni examined themselves in support of the case of the Appellants.According to T.N. Unni, he had drafted only pages one to six of the Will. The said Will was purported to have been executed at his residence at Indore. Geeta Sanghi and Baljeet Bawa were the attesting witnesses. Baljit Bawa, as noticed hereinbefore, was not examined. Geeta Sanghi sought to prove the testatrixs signature as also her own signatures on the Will.23. It is beyond any doubt or dispute that none of the attesting witnesses had put their signatures on appendices A to C. Appendices A to C contain the list of jewelleries in great details and which jewellery should be given to which grand daughter. The Wealth Tax assessment for the year 1992-93 was also annexed by way of a statement showing the market value of the shares of the companies registered in India. Another appendix specified that ACC and TISCO shares were to be equally divided amongst four daughters, viz., as per their average market value on the date of latest Wealth Tax assessment.A statement showing the market value of the shares of the companies registered in U.K. as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is stated that each companys share is divided equally amongst my four daughters. Names of the daughters had again been mentioned therein. Statement showing the value of quoted shares as per wealth tax assessment for the year 1992-93 had also been appended, the division whereof were to be done in the following manner:The shares in each company will be divided into six equal divisions. My grand children Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one Division each and my great grand children are bequeathed three remaining shares as follows Children of Gangesh Kumari get one division, Children of Jagat Bingley get one division, children of Vijayendra Ghatge get one division. In case Ashish Dalvi is married and has children before my demise, the shares in each company will be divided into seven equal divisions and distribution remains the same with the additional division going to the children of Ashish Dalvi.24. It also contained bequeaths of jewellery from the personal list of the testatrix as valued on 31st March, 1992 done by M/s. J.R.M. Bhandari. It again contained the statement showing the value of quoted shares in respect of certain companies and the mode and manner in which division thereof should be carried out.25. It has furthermore been admitted that those appendices did not see the light of the day when the Will was executed by the testatrix and attested and notarised.26. It has furthermore not been disputed that whereas Gangesh Kumari Jagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other grand child of testatrix Vijayendra Ghatge is son of Sita Raje Ghatge From the list containing the details of the jewellery, it appears that Vijayendra Ghatge and family had been given one semi rectangle clip set with diamond and ruby cabochon and two buttons studded with diamonds and pearls set in gold. Umika Ghatge had also been given one square diamond ring and one bracelet watch set with diamonds ruby and emerald.It furthermore appears that Arjun Kak is also a beneficiary under the Will.27. The High Court made a distinction between the documents which are mere appendices to an otherwise complete Will and those which are par and parcel of the Will forming its integral part.28. From what has been noticed hereinbefore it is clearly evident the division has not been made per stripe or per capita but by species. Each on of the jewelleries which was to be bequeathed to each of the beneficiar thereunder had specifically been specified. Moreover, from the valuation report, it would appear that the respective distribution purported to have been made in terms of the appendices would not make them of equal value or nearabout which was the desire of the testatrix.32. Section 87 of the Act provides that testators intention to be effectuated as far as possible, stating:87. Testators intention to be effectuated as far as possible - The intention of the testator shall not be set aside because it cannot take effect to the full (sic) but effect is to be given to it as far as possible.33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application.34. If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated. A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated.The testators intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part. [See Bajrang Factory Ltd. and Another Vs. University of Calcutta and Others, ]35. But, the aforementioned principle cannot be applied in the instant case inasmuch as appendices appended to the Will clearly specify as to how and in what manner the intention of the testatrix to divide her properties equally amongst her daughters and/ or her grand children was to be implemented.It is not a case where a general division was to be made leaving the manner of application to the executors. The Will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the Will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire Will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned Counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees.In effect and substance, the purported directions contained in the appendices which did not see the light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly impossible to be carried out. It is in that sense the provisions of Section 87 of the Act are applicable.36. The High Court has assigned vood and cogent reasons in support of its judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form part of the Will at the time of its purported execution. If the Will was incomplete the question of its proving the execution does not arise. An integral part of the document for the purpose of satisfying the tests laid down u/s 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete document.41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held:46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved.In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated:However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.Each case, however, must be determined in the fact situation obtaining therein.The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held:18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach.19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant.42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence. | 0 | 7,823 | 2,699 | ### Instruction:
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attest and extrinsic evidence on this point is receivable. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende Vs. Tarabai Aba Shedage, and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. [See also Adivekka and Others Vs. Hanamavva Kom Venkatesh D by LRs. and Another, ] 40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held: 46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved. In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated: However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held: 18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant. 42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence.
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be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned Counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees.In effect and substance, the purported directions contained in the appendices which did not see the light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly impossible to be carried out. It is in that sense the provisions of Section 87 of the Act are applicable.36. The High Court has assigned vood and cogent reasons in support of its judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form part of the Will at the time of its purported execution. If the Will was incomplete the question of its proving the execution does not arise. An integral part of the document for the purpose of satisfying the tests laid down u/s 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete document.41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held:46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved.In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated:However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.Each case, however, must be determined in the fact situation obtaining therein.The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held:18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach.19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant.42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence.
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Vij Resins Pvt. Ltd. & Anr. Etc Vs. State Of Jammu & Kashmir & Ors | precedents. As we have already pointed out, Section 3 of the Act extinguishes private rights and confers the right to deal with the subject matter of such rights on the State. 24. An attempt was made to distinguish the rule in Pathak case (1978) 2 SCC 50 : 1978 SCc (L&S) 103 : (1978) 3 SCR 334 ) by relying upon the decision in Tara Prasad Singh v. Union of India (Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 : (1980) 3 SCR 1042 ). That seven Judge Bench was dealing with the Coal Mines Nationalisation (Amendment) Act of 1976. The court referred to the two previous decisions in Ajit Singh v. State of Punjab ((1967) 2 SCr 143 : AIR 1967 SC 856 ) and Madan Mohan Pathak v. Union of India ((1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), and observed : (SCC pp. 209-10, para 68) "These decisions have no application to the instant case because the interest of the lessees and sub-lessees which was brought to termination by Section 3(3)(b) of the Nationalisation Amendment Act does not come to be vested in the State. The Act provides that excepting a certain class of leases and sub-leases, all other and sub-leases and sub-leases shall stand terminated insofar as they relate to the wining or mining of coal. There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act. Sub-section (4) of Section 4 of the Act provides that where a mining lease stands terminated under sub-section (3), it shall be lawful for the Central Government or a government company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated. The plain intendment of the Act, which, may it be reiterated, is neither a pretence nor a facade, is that once the outstanding leases and sub-lease are terminated, the Central Government and the other authorities will be free to apply for a mining lease. Any leasehold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by Section 3(3)(b). Another event has to intervene between the termination of existing leases and the creation of new interest. The Central Government, etc. have to take a positive step for obtaining a prospecting licence or a mining lease. Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a government company or a corporation owned, managed or controlled by the Central Government" 25. The statutory scheme of the Act which we are considering is to extinguish private rights both in respect of government owned trees as also trees in private ownership and to vest those rights in the State Government or the government company. The facts in this group of cases, therefore, clearly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the government company. In other words, where the contract was given by the government in respect of the trees belonging to the State, the nullification of the contract would result in the automatic transfer by reversion of the property in the contract to the government. Similarly, where the ownership vested in the private persons by operation of Section 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State. The rule in Pathak case (1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), therefore, is applicable. Sub-article (2-A) of Article 31, therefore, does not apply to the facts of the present case. Consequently, sub-article (2) applies and compensation, therefore, was payable before the property could be taken over by the State. 26. Petitioners in Writ Petition No. 794 of 1986 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lakhs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as well. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is concerned the rule of estoppel does apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights to property without providing for compensation at all and is hit by Article 31(2) of the Constitution. 27. Connected proceedings had been taken for interim arrangement regarding provision of raw material to the petitioners and certain other parties. We do not propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they consider appropriate and such applications, when filed, will be dealt with separately. | 1[ds]12. The petitioners maintained that the government orders and contracts under which they have got the right to exploit or utilise the particular forest products does amount to property and the petitioners were entitled to protection thereof against expropriation and in case no compensation was provided the relevant provisions of the Act became exposed to challenge. They have similarly contended that the impugned provisions of Section 3 are hit for contravening the fundamental right guaranteed by Article 19(1)(g) which confers upon them the right to carry on any occupation, trade orThe government orders made in 1979 did confer the right to exploit the forest and appropriate a part of the collection of the gums for purpose of business. The concept of property known to jurisprudence has expanded through several pronouncements of this Court. In Ramana Dayaram Shetty v. International Airport Authority of India ((1979) 3 SCC 489 : (1979) 3 SCR 1014 ) to which one of us (the learned Chief Justice) was party held : (SCC pp. 504-05, parathe government in a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights etc. The government pours forth wealth money, benefits, services, contracts, quotes and licences. The valuables dispensed by government take many forms, but they all share on characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to government are of many kinds. They comprise social security by benefits, cash grants for political suffers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the government or to the agents of government on the lives of many people... It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the government largesse and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection ? Can they be regarded as gratuity furnished by the State so that the State may withhold grant or revoke it at its pleasure ?..... The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confirming/structuring and checking government discretion in the matter of grant of such largesse... It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that government action be based on standards that are not arbitrary orIn Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir ((1980) 4 SCC 1 : (1980) 3 SCR 1338 ), the interest created in favour of the petitioners in the forest assets of the State (which has now been fatally hit by Section 3) was considered to be property. At page 1354 of the Reports this Court stated : (SCC p. 11, parawas pointed out by this Court in Ramana Dayaram Shetty v. International Airport of India ((1979 3 SCC 489 : (1979) 3 1014) that with the growth of welfare State, new forms of property in the shape of government largesse are developing, since the government is increasingly assuming the role of regulator and dispenser of social services and provider of a large number of benefits including jobs, contracts, licences, quotes, minerals rightsIn Subodh Gopal Bose case (State of W. B. v. Subodh Gopal Bose, 1954 SCR 587 : AIR 1954 SC 92 ), this Court had pointed out : (SCR p.word property in the context of Article 31 [the same should be the meaning under Article 19(1)(f)] which is designed to protect private property in all its forms, must be understood both in corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all othersAgain, in Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. (1954 SCR 674 : AIR 1954 SC 119 : (1954) 24 Com 103), this Court held : (SCR p.contract or agreement which a person may have with the company and which may be cancelled by the directors in exercise of powers under the Ordinance will undoubtedly be "property" within the meaning of the twoIn R. C. Cooper v. Union of India ((1970) 1 SCC 248 : (1970) 3 SCR 530 ) an eleven Judge Bench at page 567 of the Reports, stated : (SCC pp. 281-82, paraentry 42 in the Concurrent List power was conferred upon the Parliament and the State legislatures to legislate with respect to "Principles on the compensation for property acquired or requisitioned for the purpose of the Union or for any other public purpose if to be determined, and the in which such compensation is to be given". Power to legislate for acquisition of property is exercisable only under entry 42 of List III, and not as incident of the power to legislate in respect of a specific head of legislation in any of the three lists...... Under that entry "property" can be compulsorily acquired. In its normal connotation "property" means by "highest right a man can have to anything, being that right which one has to lands or tenements, goods or chattels which does not depend on anothers courtesy : it includes ownership, estates and interest in corporeal things, and also rights such as trademarks, copyrights, patents and even rights in persona capable to transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to transfer or succession, and to their capacity of beingIn Madan Mohan Pathak v. Union of India ((1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ) this Court was examining the validity of the Life Insurance Corporation (Modification of Settlement) Act of 1976. The settlement had created a right to bonus in favour of the Class III and Class IV employees of the Corporation and the Act adversely interfered with that settlement. The question for consideration of the seven Judge Bench was whether bonus payable under the settlement was property within the meaning of Article 31(2) and whether stopping payment of bonus amounted to compulsory acquisition of property without payment of compensation. The court ultimately held that bonus was property and the legislation was bad. At p. 358 of the Reports, this Court said : (SCC p. 70, para 13)It is clear from the scheme of fundamental rights embodied in Part III of the Constitution that the guarantee of the right to property is contained in Article 19(1)(f) and clauses (1) and (2) of Article 31. It stands to reason that property cannot have one meaning in Article 19(1)(f), another in Article 31, clause (1) and still another in Article 31, clause (2). Property must have the same connotation in all the three articles and since these are constitutional provisions to secure a fundamental right, they must receive the widest interpretation and must be held to refer to property of everyp. 360 of the Reports (SCC p. 72), the court again state that every, form of property, tangible or intangible, including debts and closes in action constituted property. In this group of cases before us the executive grant or the contract created interest in the petitioners and there is no room to doubt that by such process in favour of the petitioners property right had beenIt has already been stated that the Act does not provided for any compensation. Section 3 has an overriding application. It provides that is shall not only apply to the classified trees belonging to the State but it shall also apply to such trees belonging to private persons and rights of such private owners to carry on the various operations described in Section 3 are completely taken away without provision of any compensation. It cannot be contended in view of what we have stated above that the right of beneficial enjoyment of the trees by carrying out the processes named in Section 3 do not constitute property. Unless the position is covered by clause (2-A) of Article 31, in view of our conclusion that the interest created under the contract, government order or the right of beneficial enjoyment vested in the private owner of the trees amount to property, the Act would be hit by Article 31(2). Sub-article (2-A)a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of hisAn attempt was made to distinguish the rule in Pathak case (1978) 2 SCC 50 : 1978 SCc (L&S) 103 : (1978) 3 SCR 334 ) by relying upon the decision in Tara Prasad Singh v. Union of India (Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 : (1980) 3 SCR 1042 ). That seven Judge Bench was dealing with the Coal Mines Nationalisation (Amendment) Act of 1976. The court referred to the two previous decisions in Ajit Singh v. State of Punjab ((1967) 2 SCr 143 : AIR 1967 SC 856 ) and Madan Mohan Pathak v. Union of India ((1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), and observed : (SCC pp. 209-10, paradecisions have no application to the instant case because the interest of the lessees and sub-lessees which was brought to termination by Section 3(3)(b) of the Nationalisation Amendment Act does not come to be vested in the State. The Act provides that excepting a certain class of leases and sub-leases, all other and sub-leases and sub-leases shall stand terminated insofar as they relate to the wining or mining of coal. There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act. Sub-section (4) of Section 4 of the Act provides that where a mining lease stands terminated under sub-section (3), it shall be lawful for the Central Government or a government company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated. The plain intendment of the Act, which, may it be reiterated, is neither a pretence nor a facade, is that once the outstanding leases and sub-lease are terminated, the Central Government and the other authorities will be free to apply for a mining lease. Any leasehold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by Section 3(3)(b). Another event has to intervene between the termination of existing leases and the creation of new interest. The Central Government, etc. have to take a positive step for obtaining a prospecting licence or a mining lease. Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a government company or a corporation owned, managed or controlled by the CentralThe statutory scheme of the Act which we are considering is to extinguish private rights both in respect of government owned trees as also trees in private ownership and to vest those rights in the State Government or the government company. The facts in this group of cases, therefore, clearly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the government company. In other words, where the contract was given by the government in respect of the trees belonging to the State, the nullification of the contract would result in the automatic transfer by reversion of the property in the contract to the government. Similarly, where the ownership vested in the private persons by operation of Section 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State. The rule in Pathak case (1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), therefore, is applicable. Sub-article (2-A) of Article 31, therefore, does not apply to the facts of the present case. Consequently, sub-article (2) applies and compensation, therefore, was payable before the property could be taken over by thePetitioners in Writ Petition No. 794 of 1986 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lakhs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as well. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is concerned the rule of estoppel does apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights to property without providing for compensation at all and is hit by Article 31(2) of theConnected proceedings had been taken for interim arrangement regarding provision of raw material to the petitioners and certain other parties. We do not propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they consider appropriate and such applications, when filed, will be dealt with separately | 1 | 5,634 | 2,955 | ### Instruction:
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precedents. As we have already pointed out, Section 3 of the Act extinguishes private rights and confers the right to deal with the subject matter of such rights on the State. 24. An attempt was made to distinguish the rule in Pathak case (1978) 2 SCC 50 : 1978 SCc (L&S) 103 : (1978) 3 SCR 334 ) by relying upon the decision in Tara Prasad Singh v. Union of India (Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 : (1980) 3 SCR 1042 ). That seven Judge Bench was dealing with the Coal Mines Nationalisation (Amendment) Act of 1976. The court referred to the two previous decisions in Ajit Singh v. State of Punjab ((1967) 2 SCr 143 : AIR 1967 SC 856 ) and Madan Mohan Pathak v. Union of India ((1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), and observed : (SCC pp. 209-10, para 68) "These decisions have no application to the instant case because the interest of the lessees and sub-lessees which was brought to termination by Section 3(3)(b) of the Nationalisation Amendment Act does not come to be vested in the State. The Act provides that excepting a certain class of leases and sub-leases, all other and sub-leases and sub-leases shall stand terminated insofar as they relate to the wining or mining of coal. There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act. Sub-section (4) of Section 4 of the Act provides that where a mining lease stands terminated under sub-section (3), it shall be lawful for the Central Government or a government company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated. The plain intendment of the Act, which, may it be reiterated, is neither a pretence nor a facade, is that once the outstanding leases and sub-lease are terminated, the Central Government and the other authorities will be free to apply for a mining lease. Any leasehold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by Section 3(3)(b). Another event has to intervene between the termination of existing leases and the creation of new interest. The Central Government, etc. have to take a positive step for obtaining a prospecting licence or a mining lease. Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a government company or a corporation owned, managed or controlled by the Central Government" 25. The statutory scheme of the Act which we are considering is to extinguish private rights both in respect of government owned trees as also trees in private ownership and to vest those rights in the State Government or the government company. The facts in this group of cases, therefore, clearly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the government company. In other words, where the contract was given by the government in respect of the trees belonging to the State, the nullification of the contract would result in the automatic transfer by reversion of the property in the contract to the government. Similarly, where the ownership vested in the private persons by operation of Section 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State. The rule in Pathak case (1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), therefore, is applicable. Sub-article (2-A) of Article 31, therefore, does not apply to the facts of the present case. Consequently, sub-article (2) applies and compensation, therefore, was payable before the property could be taken over by the State. 26. Petitioners in Writ Petition No. 794 of 1986 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lakhs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as well. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is concerned the rule of estoppel does apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights to property without providing for compensation at all and is hit by Article 31(2) of the Constitution. 27. Connected proceedings had been taken for interim arrangement regarding provision of raw material to the petitioners and certain other parties. We do not propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they consider appropriate and such applications, when filed, will be dealt with separately.
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the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of hisAn attempt was made to distinguish the rule in Pathak case (1978) 2 SCC 50 : 1978 SCc (L&S) 103 : (1978) 3 SCR 334 ) by relying upon the decision in Tara Prasad Singh v. Union of India (Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 : (1980) 3 SCR 1042 ). That seven Judge Bench was dealing with the Coal Mines Nationalisation (Amendment) Act of 1976. The court referred to the two previous decisions in Ajit Singh v. State of Punjab ((1967) 2 SCr 143 : AIR 1967 SC 856 ) and Madan Mohan Pathak v. Union of India ((1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), and observed : (SCC pp. 209-10, paradecisions have no application to the instant case because the interest of the lessees and sub-lessees which was brought to termination by Section 3(3)(b) of the Nationalisation Amendment Act does not come to be vested in the State. The Act provides that excepting a certain class of leases and sub-leases, all other and sub-leases and sub-leases shall stand terminated insofar as they relate to the wining or mining of coal. There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act. Sub-section (4) of Section 4 of the Act provides that where a mining lease stands terminated under sub-section (3), it shall be lawful for the Central Government or a government company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated. The plain intendment of the Act, which, may it be reiterated, is neither a pretence nor a facade, is that once the outstanding leases and sub-lease are terminated, the Central Government and the other authorities will be free to apply for a mining lease. Any leasehold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by Section 3(3)(b). Another event has to intervene between the termination of existing leases and the creation of new interest. The Central Government, etc. have to take a positive step for obtaining a prospecting licence or a mining lease. Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a government company or a corporation owned, managed or controlled by the CentralThe statutory scheme of the Act which we are considering is to extinguish private rights both in respect of government owned trees as also trees in private ownership and to vest those rights in the State Government or the government company. The facts in this group of cases, therefore, clearly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the government company. In other words, where the contract was given by the government in respect of the trees belonging to the State, the nullification of the contract would result in the automatic transfer by reversion of the property in the contract to the government. Similarly, where the ownership vested in the private persons by operation of Section 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State. The rule in Pathak case (1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334 ), therefore, is applicable. Sub-article (2-A) of Article 31, therefore, does not apply to the facts of the present case. Consequently, sub-article (2) applies and compensation, therefore, was payable before the property could be taken over by thePetitioners in Writ Petition No. 794 of 1986 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lakhs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as well. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is concerned the rule of estoppel does apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights to property without providing for compensation at all and is hit by Article 31(2) of theConnected proceedings had been taken for interim arrangement regarding provision of raw material to the petitioners and certain other parties. We do not propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they consider appropriate and such applications, when filed, will be dealt with separately
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The State Of Bihar & Others Vs. Sm. Charusila Dasi | expressed by Lord Selborne:"Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. . .. . . .. . . .. In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity."The decision in ILR (1939) 1 Cal 462: (AIR 1939 Cal 648 ) proceeded on a construction of S. 70 of the Bengal Wakf Act which also had a section similar to S. 3 of the Act. Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in Assam was under any obligation to send such a notice. It was held that the Bengal Act did not apply to Assam and S. 70 stood in a different category from the other sections of the Bengal Act. The ratio of the decision was thus explained:"So far as the status of the Commissioner is concerned, it is conferred by the Bengal Act to operate even outside the province. Therefore, the Commissioner may bring suits under S. 72 or S. 73 of the Bengal Act in courts outside the province. But S. 70 lies in a different category, because it imposes an obligation on the court to issue notice to the Commissioner in certain circumstances. . . . . .. . . . . Section 70 (1) refers to a suit or proceeding in respect of any wakf property, etc., and if this wakf property is situated outside the province, so that the court having jurisdiction over it is also outside the province, then the Act cannot operate beyond its extent, that is to say outside the province of Bengal."The decision in ILR 1948-2 Cal 455 : (AIR 1948 Cal 322), and the decision in AIR 1954 Pat 164 - both related to the interpretation. of some of the provisions of the United Provinces Encumbered Estates Act (U. P. Act 25 of 1934). In the former case the limited question for decision was if the decree-holder under a decree of the Original Side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Benaras under the United Provinces Encumbered Estates Act, 1934. The answer given was that the decree-holder was not so precluded and the decision proceeded on a construction of S. 18 of the United Provinces Encumbered Estates Act, 1934 read with Ss. 7, 13 and 14 (7) of that Act. It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended, as indicated by S. 7, only over debts enforceable through the courts within the province and the word "creditor" in S. 10 must be limited to those of them who would have to enforce their rights through such courts alone. In the Patna case the question for decision was if S. 14 (7) of the U. P. Encumbered Estates Act, 1934 should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature. It was held that the decree passed by the Special Judge of Banaras had not the effect of a decree of a civil court outside the territorial limits of the United Provinces and the Subordinate Judge of Purnea in Bihar had no jurisdiction to execute such a decree or to direct that the properties of a judgment - debtor in Purnea should be attached in execution of the decree. As we have said earlier, these decisions relate to an altogether different problem, namely, the proper construction of certain sections of the Bengal Wakfs Act or of the United Provinces Encumbered Estates Act. The problem before us is of a more general nature and the aforesaid decisions are no authorities for the solution of that problem.16. There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided on 18-3-1953). A similar problem arose in that case where the head of a math situate in Banaras made an application under Art. 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950 on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to that math. In the course of the hearing of the petition the learned Attorney General who appeared for the State of Bombay made it clear that there was no intention on the part of the Government of Bombay or the Charity Commissioner to apply the provisions of the Bombay Act to any math or religious institution situated outside the state territory. The learned Attorney General submitted that the Bombay Act could be made applicable, if at all, to any place of religious instruction or worship which is a appurtenant to the math and is actually with the State territory. In view of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us.17. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of extra-territoriality. | 1[ds]We have held therein that the provisions of the Act do not take away or abridge any of the rights conferred by that Part. In Civil Appeal No. 343 of 1955 in which also judgment has been pronounced today (Mahant Ram Saroop Dasji v. S. P. Sahi, AIR l959 SC 951), we have considered the definition clause in S. 2 (1) of the Act and come to the conclusion that the Act does not apply to private endowments, and have further explained therein the essential distinction in Hindu law between private and public religious trusts We do not wish to repeat what we have said in those two decisions; but in the light of the observations made therein, thetwo questions which fall for decision in this appeal are(1) if on a true construction of the trust deed datedthe Charusila Trust is a private endowment created for the worship of a family idol in which the public are not interested, as found by the High Court and (2) if the answer to the first question is in the negative, does the Act apply by reason of S. 3 thereof to trust properties which are situate outside the State of Bihar.We say this with respect, but we consider that the learned Judges of the High Court have failed to give to several material clauses of the trust deed their due weight and these have an important bearing on the question in issue. It is true that the settlor said that she had installed the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest. That was not, however, what was done. The settlor created the trust for the construction of two temples, in one of which was to be installed the deity Iswar Srigopal and in the other the marble image of her preceptor; the trustees consisted of persons three of whom were strangers to the family, though the settlor reserved to herself the power to remove in her absolute discretion any one or more of the trustees for misconduct by reason of change of religion etc. One of the relevant considerations is if by the trust deed any right of worship has been given to the public or any section of the public answering a particularour opinion, the answer to the question must be in the affirmative.It is to be remembered that with regard to an interest under a trust the beneficiaries only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees place of residence; see Diceys Conflict of Laws, 7th edition, p. 506. The Act purports to do nothing more. Its aim, as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust. Therefore, there is really no question of the Act havingoperation.In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust. This Court has applied the doctrine of territorial connection or nexus tolegislation, sales tax legislation and also to legislation imposing a tax on gambling.In Tata Iron and Steel Co. Ltd. v. State of Bihar, AIR 1958 SC 452 at p. 461, the earlier cases were reviewed and it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situated in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory; indeed, the religious institution and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other. If, therefore, any liability is imposed on the trustees, such liability must affect the trust property.It is true that in the Tata Iron and Steel Co.s case, AIR 1958 SC 452 at p. 461, this Courtis not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation is applicable to all kinds of legislation. It will be enough for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application tolegislation but has extended it to sales tax and to tax ondo not see any reason why the principles which were followed in State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874 : ((S) AIR 1957 SC 699 ), should not be followed in the present case. In R. M. D. Chamarbaugwalas case, 1957 SCR 874 : (AIR 1957 SC 699 ), it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that "all the activities which the gambler is ordinarily expected to undertake" took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground ofWe proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance. These are (1) Sirdar Gurdyal Singh v. Rajah of Faridkote, 21 Ind App 171 at p. 185 (PC); (2) Commissioner of Wakfs, Bengal v. Narasingh Chandra Daw and Co., ILR (1939) 1 Cal 462: (AIR 1939 Cal 648 ); (3) Madangopal Bagla v. Lachmidas, ILR (1948)2 Cal 455: (AIR 1948 Cal 322) and (4) Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 . Those decisions, in our opinion, are not in point, as they related to different problems altogether. In Sirdar Gurdyal Singhs case, 21 Ind App 171(PC), a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkote, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domiciled subject; it was held that the decree was a nullity by international law.There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided onA similar problem arose in that case where the head of a math situate in Banaras made an application under Art. 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950 on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to thatview of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us.17. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of | 1 | 8,373 | 1,539 | ### 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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expressed by Lord Selborne:"Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. . .. . . .. . . .. In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity."The decision in ILR (1939) 1 Cal 462: (AIR 1939 Cal 648 ) proceeded on a construction of S. 70 of the Bengal Wakf Act which also had a section similar to S. 3 of the Act. Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in Assam was under any obligation to send such a notice. It was held that the Bengal Act did not apply to Assam and S. 70 stood in a different category from the other sections of the Bengal Act. The ratio of the decision was thus explained:"So far as the status of the Commissioner is concerned, it is conferred by the Bengal Act to operate even outside the province. Therefore, the Commissioner may bring suits under S. 72 or S. 73 of the Bengal Act in courts outside the province. But S. 70 lies in a different category, because it imposes an obligation on the court to issue notice to the Commissioner in certain circumstances. . . . . .. . . . . Section 70 (1) refers to a suit or proceeding in respect of any wakf property, etc., and if this wakf property is situated outside the province, so that the court having jurisdiction over it is also outside the province, then the Act cannot operate beyond its extent, that is to say outside the province of Bengal."The decision in ILR 1948-2 Cal 455 : (AIR 1948 Cal 322), and the decision in AIR 1954 Pat 164 - both related to the interpretation. of some of the provisions of the United Provinces Encumbered Estates Act (U. P. Act 25 of 1934). In the former case the limited question for decision was if the decree-holder under a decree of the Original Side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Benaras under the United Provinces Encumbered Estates Act, 1934. The answer given was that the decree-holder was not so precluded and the decision proceeded on a construction of S. 18 of the United Provinces Encumbered Estates Act, 1934 read with Ss. 7, 13 and 14 (7) of that Act. It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended, as indicated by S. 7, only over debts enforceable through the courts within the province and the word "creditor" in S. 10 must be limited to those of them who would have to enforce their rights through such courts alone. In the Patna case the question for decision was if S. 14 (7) of the U. P. Encumbered Estates Act, 1934 should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature. It was held that the decree passed by the Special Judge of Banaras had not the effect of a decree of a civil court outside the territorial limits of the United Provinces and the Subordinate Judge of Purnea in Bihar had no jurisdiction to execute such a decree or to direct that the properties of a judgment - debtor in Purnea should be attached in execution of the decree. As we have said earlier, these decisions relate to an altogether different problem, namely, the proper construction of certain sections of the Bengal Wakfs Act or of the United Provinces Encumbered Estates Act. The problem before us is of a more general nature and the aforesaid decisions are no authorities for the solution of that problem.16. There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided on 18-3-1953). A similar problem arose in that case where the head of a math situate in Banaras made an application under Art. 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950 on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to that math. In the course of the hearing of the petition the learned Attorney General who appeared for the State of Bombay made it clear that there was no intention on the part of the Government of Bombay or the Charity Commissioner to apply the provisions of the Bombay Act to any math or religious institution situated outside the state territory. The learned Attorney General submitted that the Bombay Act could be made applicable, if at all, to any place of religious instruction or worship which is a appurtenant to the math and is actually with the State territory. In view of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us.17. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of extra-territoriality.
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the public or any section of the public answering a particularour opinion, the answer to the question must be in the affirmative.It is to be remembered that with regard to an interest under a trust the beneficiaries only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees place of residence; see Diceys Conflict of Laws, 7th edition, p. 506. The Act purports to do nothing more. Its aim, as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust. Therefore, there is really no question of the Act havingoperation.In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust. This Court has applied the doctrine of territorial connection or nexus tolegislation, sales tax legislation and also to legislation imposing a tax on gambling.In Tata Iron and Steel Co. Ltd. v. State of Bihar, AIR 1958 SC 452 at p. 461, the earlier cases were reviewed and it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situated in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory; indeed, the religious institution and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other. If, therefore, any liability is imposed on the trustees, such liability must affect the trust property.It is true that in the Tata Iron and Steel Co.s case, AIR 1958 SC 452 at p. 461, this Courtis not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation is applicable to all kinds of legislation. It will be enough for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application tolegislation but has extended it to sales tax and to tax ondo not see any reason why the principles which were followed in State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874 : ((S) AIR 1957 SC 699 ), should not be followed in the present case. In R. M. D. Chamarbaugwalas case, 1957 SCR 874 : (AIR 1957 SC 699 ), it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that "all the activities which the gambler is ordinarily expected to undertake" took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground ofWe proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance. These are (1) Sirdar Gurdyal Singh v. Rajah of Faridkote, 21 Ind App 171 at p. 185 (PC); (2) Commissioner of Wakfs, Bengal v. Narasingh Chandra Daw and Co., ILR (1939) 1 Cal 462: (AIR 1939 Cal 648 ); (3) Madangopal Bagla v. Lachmidas, ILR (1948)2 Cal 455: (AIR 1948 Cal 322) and (4) Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 . Those decisions, in our opinion, are not in point, as they related to different problems altogether. In Sirdar Gurdyal Singhs case, 21 Ind App 171(PC), a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkote, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domiciled subject; it was held that the decree was a nullity by international law.There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided onA similar problem arose in that case where the head of a math situate in Banaras made an application under Art. 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950 on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to thatview of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us.17. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of
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ANJALI ARORA Vs. UNION OF INDIA | NAVIN SINHA, J.1. The Petitioners seek mandamus under Article 32 of the Constitution, for grant of pay scale on the basis of parity as granted by this Court on 21.10.2010 to the appellants in Yogeshwar Prasad & Ors. vs. NationalInstitute of Educational Planning and Administration & Ors. (in short, ?National Institute?), (2010) 14 SCC 323. 2. It is the contention of the petitioners that they are similarly situated as the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ), working in the National Institute and are therefore also entitled to the benefit of Regulation 4(2) of the National Institute Regulations for grant of pay scale at par with that being given to persons holding similar posts in the Central Government. The petitioners have been pursuing the matter with the respondents by filing representations since 2015 and were assured that their claims were under consideration till it was finally rejected on 05.02.2018. Even while the respondents contend that this Court had confined the relief to the appellants only in the aforesaid appeal, nonetheless they have themselves granted similar relief to four other persons who were not parties to the appeal, by order dated 02.11.2012. The petitioners have therefore been subjected to arbitrary and hostile discrimination.3. The respondents have denied entitlement to relief on the basis of parity. It is their contention that the petitioners are not similarly situated as the appellants in Yogeshwar Prasad((2010) 14 SCC 323 ) or those granted relief on the basis of the same.4. We have considered the submission on behalf of the parties. The controversy relates to the grant of pay scale of Rs.1640-2900 with effect from 01.01.1986 pursuant to the 4 th Central Pay Commission recommendation, and the consequent revisions of that scale. It is not in dispute that the petitioners are also working in the National Institute alike the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners will therefore be equally entitled to the benefit of Regulation 4(2) of the National Institute which reads as follows:?4(2) Group ‘A? officers, other than faculty members and those on UGC grades of pay groups ‘B?, ‘C? and ‘D? employees shall draw salary and allowances in such scales of pay as may be applicable to the corresponding categories of Central Government employees and be subject to such conditions of service as are or may be applicable to Central Government employees from time to time.?5. But parity of pay scale can be granted to the petitioners provided they were similarly situated as the appellants in the Yogeshwar Prasad ((2010) 14 SCC 323 ). If that be so, they would undoubtedly be entitled to be considered for grant of similar relief notwithstanding the observations in Yogeshwar Prasad ((2010) 14 SCC 323 ) confining grant of relief to the appellants therein, in view of the respondents having granted similar relief to others situated alike on 02.11.2012.6. The respondents in their counter affidavits have specifically contended that the petitioners are not similarly situated as the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners were appointed as Junior Stenographer/Stenographer Grade-II which is a post lower than that of Senior Stenographer/Stenographer Grade-I held by the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The posts carry different pay scales and merely acquiring ACP/MACP to the pay scales of Rs.1400-2600/5000-8000 under the 4 th Central Pay Commission and the 5 th Central Pay Commission does not entitle the petitioners to grant of similar relief as granted to those holding higher posts. Therefore, UDCs/Junior Stenographer (Stenographer Grade II) who acquired identical pay scales as those of Assistants/Senior Stenographers/Stenographer Grade-I by virtue of ACP/MACP cannot be considered at par so as to be entitled to parity of pay scales.7. The pay scale of Rs.1640-2900 for the post of Stenographer ‘C? (Senior Stenographer/Stenographer/Stenographer Grade-I) was operationalized in terms of Government of India?s order dated 31.07.1990, during the regime of 5 th Central Pay Commission which was during the period w.e.f 01.01.1996 till 31.12.2005. Both Petitioner Nos. 1 and 2 were not holding the post of Senior Stenographer Grade-I. Petitioner Nos.1 and 2 were promoted as Stenographer Grade-I only w.e.f. 02.11.2017 and 12.07.2018 respectively. Thus, both Petitioner Nos. 1 and 2 became Stenographer Grade-I, only when the 6 th and 7 th Pay Commission were operational and they were already drawing their pay in the pay scale of Rs.9300-34800 with grade pay of Rs.4200. Petitioner No.3 never got regular promotion during her entire period of service and retired on 28.02.2016 as Junior Stenographer (Stenographer Grade-II) only and thus is not eligible to claim the pay scale of Senior Stenographer (Stenographer ‘C?/Stenographer Grade-I) at all. | 0[ds]4. We have considered the submission on behalf of the parties. The controversy relates to the grant of pay scale of Rs.1640-2900 with effect from 01.01.1986 pursuant to the 4 th Central Pay Commission recommendation, and the consequent revisions of that scale. It is not in dispute that the petitioners are also working in the National Institute alike the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners will therefore be equally entitled to the benefit of Regulation 4(2) of the NationalBut parity of pay scale can be granted to the petitioners provided they were similarly situated as the appellants in the Yogeshwar Prasad ((2010) 14 SCC 323 ). If that be so, they would undoubtedly be entitled to be considered for grant of similar relief notwithstanding the observations in Yogeshwar Prasad ((2010) 14 SCC 323 ) confining grant of relief to the appellants therein, in view of the respondents having granted similar relief to others situated alike onpetitioners were appointed as Junior Stenographer/Stenographer Grade-II which is a post lower than that of Senior Stenographer/Stenographer Grade-I held by the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The posts carry different pay scales and merely acquiring ACP/MACP to the pay scales of Rs.1400-2600/5000-8000 under the 4 th Central Pay Commission and the 5 th Central Pay Commission does not entitle the petitioners to grant of similar relief as granted to those holding higher posts. Therefore, UDCs/Junior Stenographer (Stenographer Grade II) who acquired identical pay scales as those of Assistants/Senior Stenographers/Stenographer Grade-I by virtue of ACP/MACP cannot be considered at par so as to be entitled to parity of pay scales.7. The pay scale of Rs.1640-2900 for the post of Stenographer ‘C? (Senior Stenographer/Stenographer/Stenographer Grade-I) was operationalized in terms of Government of India?s order dated 31.07.1990, during the regime of 5 th Central Pay Commission which was during the period w.e.f 01.01.1996 till 31.12.2005. Both Petitioner Nos. 1 and 2 were not holding the post of Senior Stenographer Grade-I. Petitioner Nos.1 and 2 were promoted as Stenographer Grade-I only w.e.f. 02.11.2017 and 12.07.2018 respectively. Thus, both Petitioner Nos. 1 and 2 became Stenographer Grade-I, only when the 6 th and 7 th Pay Commission were operational and they were already drawing their pay in the pay scale of Rs.9300-34800 with grade pay of Rs.4200. Petitioner No.3 never got regular promotion during her entire period of service and retired on 28.02.2016 as Junior Stenographer (Stenographer Grade-II) only and thus is not eligible to claim the pay scale of Senior Stenographer (Stenographer ‘C?/Stenographer Grade-I) at all. | 0 | 883 | 484 | ### 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:
NAVIN SINHA, J.1. The Petitioners seek mandamus under Article 32 of the Constitution, for grant of pay scale on the basis of parity as granted by this Court on 21.10.2010 to the appellants in Yogeshwar Prasad & Ors. vs. NationalInstitute of Educational Planning and Administration & Ors. (in short, ?National Institute?), (2010) 14 SCC 323. 2. It is the contention of the petitioners that they are similarly situated as the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ), working in the National Institute and are therefore also entitled to the benefit of Regulation 4(2) of the National Institute Regulations for grant of pay scale at par with that being given to persons holding similar posts in the Central Government. The petitioners have been pursuing the matter with the respondents by filing representations since 2015 and were assured that their claims were under consideration till it was finally rejected on 05.02.2018. Even while the respondents contend that this Court had confined the relief to the appellants only in the aforesaid appeal, nonetheless they have themselves granted similar relief to four other persons who were not parties to the appeal, by order dated 02.11.2012. The petitioners have therefore been subjected to arbitrary and hostile discrimination.3. The respondents have denied entitlement to relief on the basis of parity. It is their contention that the petitioners are not similarly situated as the appellants in Yogeshwar Prasad((2010) 14 SCC 323 ) or those granted relief on the basis of the same.4. We have considered the submission on behalf of the parties. The controversy relates to the grant of pay scale of Rs.1640-2900 with effect from 01.01.1986 pursuant to the 4 th Central Pay Commission recommendation, and the consequent revisions of that scale. It is not in dispute that the petitioners are also working in the National Institute alike the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners will therefore be equally entitled to the benefit of Regulation 4(2) of the National Institute which reads as follows:?4(2) Group ‘A? officers, other than faculty members and those on UGC grades of pay groups ‘B?, ‘C? and ‘D? employees shall draw salary and allowances in such scales of pay as may be applicable to the corresponding categories of Central Government employees and be subject to such conditions of service as are or may be applicable to Central Government employees from time to time.?5. But parity of pay scale can be granted to the petitioners provided they were similarly situated as the appellants in the Yogeshwar Prasad ((2010) 14 SCC 323 ). If that be so, they would undoubtedly be entitled to be considered for grant of similar relief notwithstanding the observations in Yogeshwar Prasad ((2010) 14 SCC 323 ) confining grant of relief to the appellants therein, in view of the respondents having granted similar relief to others situated alike on 02.11.2012.6. The respondents in their counter affidavits have specifically contended that the petitioners are not similarly situated as the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners were appointed as Junior Stenographer/Stenographer Grade-II which is a post lower than that of Senior Stenographer/Stenographer Grade-I held by the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The posts carry different pay scales and merely acquiring ACP/MACP to the pay scales of Rs.1400-2600/5000-8000 under the 4 th Central Pay Commission and the 5 th Central Pay Commission does not entitle the petitioners to grant of similar relief as granted to those holding higher posts. Therefore, UDCs/Junior Stenographer (Stenographer Grade II) who acquired identical pay scales as those of Assistants/Senior Stenographers/Stenographer Grade-I by virtue of ACP/MACP cannot be considered at par so as to be entitled to parity of pay scales.7. The pay scale of Rs.1640-2900 for the post of Stenographer ‘C? (Senior Stenographer/Stenographer/Stenographer Grade-I) was operationalized in terms of Government of India?s order dated 31.07.1990, during the regime of 5 th Central Pay Commission which was during the period w.e.f 01.01.1996 till 31.12.2005. Both Petitioner Nos. 1 and 2 were not holding the post of Senior Stenographer Grade-I. Petitioner Nos.1 and 2 were promoted as Stenographer Grade-I only w.e.f. 02.11.2017 and 12.07.2018 respectively. Thus, both Petitioner Nos. 1 and 2 became Stenographer Grade-I, only when the 6 th and 7 th Pay Commission were operational and they were already drawing their pay in the pay scale of Rs.9300-34800 with grade pay of Rs.4200. Petitioner No.3 never got regular promotion during her entire period of service and retired on 28.02.2016 as Junior Stenographer (Stenographer Grade-II) only and thus is not eligible to claim the pay scale of Senior Stenographer (Stenographer ‘C?/Stenographer Grade-I) at all.
### Response:
0
### Explanation:
4. We have considered the submission on behalf of the parties. The controversy relates to the grant of pay scale of Rs.1640-2900 with effect from 01.01.1986 pursuant to the 4 th Central Pay Commission recommendation, and the consequent revisions of that scale. It is not in dispute that the petitioners are also working in the National Institute alike the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The petitioners will therefore be equally entitled to the benefit of Regulation 4(2) of the NationalBut parity of pay scale can be granted to the petitioners provided they were similarly situated as the appellants in the Yogeshwar Prasad ((2010) 14 SCC 323 ). If that be so, they would undoubtedly be entitled to be considered for grant of similar relief notwithstanding the observations in Yogeshwar Prasad ((2010) 14 SCC 323 ) confining grant of relief to the appellants therein, in view of the respondents having granted similar relief to others situated alike onpetitioners were appointed as Junior Stenographer/Stenographer Grade-II which is a post lower than that of Senior Stenographer/Stenographer Grade-I held by the appellants in Yogeshwar Prasad ((2010) 14 SCC 323 ). The posts carry different pay scales and merely acquiring ACP/MACP to the pay scales of Rs.1400-2600/5000-8000 under the 4 th Central Pay Commission and the 5 th Central Pay Commission does not entitle the petitioners to grant of similar relief as granted to those holding higher posts. Therefore, UDCs/Junior Stenographer (Stenographer Grade II) who acquired identical pay scales as those of Assistants/Senior Stenographers/Stenographer Grade-I by virtue of ACP/MACP cannot be considered at par so as to be entitled to parity of pay scales.7. The pay scale of Rs.1640-2900 for the post of Stenographer ‘C? (Senior Stenographer/Stenographer/Stenographer Grade-I) was operationalized in terms of Government of India?s order dated 31.07.1990, during the regime of 5 th Central Pay Commission which was during the period w.e.f 01.01.1996 till 31.12.2005. Both Petitioner Nos. 1 and 2 were not holding the post of Senior Stenographer Grade-I. Petitioner Nos.1 and 2 were promoted as Stenographer Grade-I only w.e.f. 02.11.2017 and 12.07.2018 respectively. Thus, both Petitioner Nos. 1 and 2 became Stenographer Grade-I, only when the 6 th and 7 th Pay Commission were operational and they were already drawing their pay in the pay scale of Rs.9300-34800 with grade pay of Rs.4200. Petitioner No.3 never got regular promotion during her entire period of service and retired on 28.02.2016 as Junior Stenographer (Stenographer Grade-II) only and thus is not eligible to claim the pay scale of Senior Stenographer (Stenographer ‘C?/Stenographer Grade-I) at all.
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Bengal & Assam Investors Ltd Vs. Commissioner Of Income Tax, West Bengal | shares and making investments and generally undertaking financial and commercial obligations and transactions and operations of all kinds, the dividend income must be computed under S. 10 because the company is formed expressly for the purpose of carrying on business and holding shares in the course of it. In this connection herefers to the following passage from the judgment of Lord Sterndale in Commissioner of Inland Revenue v. Korean Syndicate Ltd., (1921) 12 Tax Cas 181 at p. 202:"But the fact that the limited company comes into existence in a different way is a matter to be considered. An individual comes into existence for many purposes, or perhaps sometimes for none, whereas a limited company comes into existence for some particular purpose, and if it comes into existence for the particular purpose of carrying out a transaction by getting possession of concessions and turning them to account, then that is a matter to be considered when you come to decide whether doing that is to carrying on a business or not." 10. The learned counsel for the Revenue, Mr. Viswanatha Sastri, contends that the company was not holding shares as part of its stock-in-trade, but was holding them merely as an investment company, and he says that in this respect an investment company even though it is formed under the Companies Act is in no way different from an individual who invests his own moneys or borrows and invests monies in shares for the purpose of getting dividends. He drew our attention to East India Prospecting Syndicate, Calcutta v. Commissioner of Excess profits Tax, Calcutta, 1951-19 ITR 571 : (AIR 1952 Cal 40 ), where the Calcutta High Court in dealing with the Excess Profits Tax Act (XV of 1940) held that "the mere holding of property or investments cannot amount to a business within the meaning of that term as used in the Indian Income-tax Act, 1922, and can only amount to a business as that term is used in the Excess profits Tax Act, 1940, by reason of the proviso to S. 2 (5) of that Act. The proviso to S. 2 (5) of the Excess Profits Tax Act, 1940, only makes the holding of investments or property by limited companies and incorporated societies tantamount to carrying on of business." But the assessee in that case was not carrying on any investment business at all, and, therefore, the decision is of not much assistance to us. The only assistance we can derive from that decision is that the Central Legislature in enacting the Excess Profits Tax Act understood the word "Business" to mean that the term would not include a mere holding of investments, and made a special provision to rope in limited companies or incorporated societies which were holding investments or property within the definition of the word "business". 11. Before the amendment of S. 12 by S. 9 of the Finance Act, 1955, it had been held by the Bombay High Court in Commissioner of Income-tax v. Ahmuty and Co. Ltd., 1955-27 ITR 63 (Bom), that where a company was a dealer in shares which constituted its stock-in-trade the dividend income received by the assessee in respect of its shares was income from business chargeable under S. 10 and the Income-tax authorities could to compel the assessee to show the income under S. 12. But there is not case where it had been held that even if the shares are not stock-in-trade of the assessee company the dividend can be assessed under S. 10. It seems that in practice an investment company was being assessed under S. 12 in respect of dividend income received by it. (See for example Eastern Investment Ltd. v. Commissioner of Income-tax West Bengal, 1951-20 ITR 1 : (AIR 1951 SC 278 ), Which is a case which came up to the Supreme Court. 12. It seems to us that on principle before dividends on shares can be assessed under S. 10, the assessee, be it an individual or a company or any other entity must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend he is not carrying on a business. The only way he can come under S. 10 is by converting the shares into stock-in-trade ,i.e., by carrying on business of dealing in stocks and shares as did the assessee in Commissioner of Income-tax, Bombay v. Bai Shirinbai, 1962-46 ITR 86 : (AIR 1963 SC 477 ). 13. Mr. Desai laid a great deal of stress on the argument that the very fact that a company is incorporated to carry on investment shows that the company is carrying on business. We are unable to agree with this contention. Bhagwati, J. observed in Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1954-25 ITR 449 : (AIR 1954 SC 364 ), that "when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business". He further observed that "the object of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business." 14. Apart from showing mere investment, no facts have been brought out in this case to show that the company was in any way carrying on business in respect of shares. Its position, on the facts placed before us, is in no way different from an individual merely buying shares with a view to holding them for the purpose of earning dividends. No authority has been cited before us that in the case of an individual to acquire and hold shares with the object of receiving dividends is to carry on business. We are unable to hold that if a company does the same, it carried on business within S. 10 of the Act. | 0[ds]11. Before the amendment of S. 12 by S. 9 of the Finance Act, 1955, it had been held by the Bombay High Court in Commissioner of Income-tax v. Ahmuty and Co. Ltd., 1955-27 ITR 63 (Bom), that where a company was a dealer in shares which constituted its stock-in-trade the dividend income received by the assessee in respect of its shares was income from business chargeable under S. 10 and the Income-tax authorities could to compel the assessee to show the income under S. 12. But there is not case where it had been held that even if the shares are not stock-in-trade of the assessee company the dividend can be assessed under S. 10. It seems that in practice an investment company was being assessed under S. 12 in respect of dividend income received by it. (See for example Eastern Investment Ltd. v. Commissioner of Income-tax West Bengal, 1951-20 ITR 1 : (AIR 1951 SC 278 ), Which is a case which came up to the Supreme Court12. It seems to us that on principle before dividends on shares can be assessed under S. 10, the assessee, be it an individual or a company or any other entity must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend he is not carrying on a business. The only way he can come under S. 10 is by converting the shares into stock-in-trade ,i.e., by carrying on business of dealing in stocks and shares as did the assessee in Commissioner of Income-tax, Bombay v. Bai Shirinbai, 1962-46 ITR 86 : (AIR 1963 SC 477 )13. Mr. Desai laid a great deal of stress on the argument that the very fact that a company is incorporated to carry on investment shows that the company is carrying on business. We are unable to agree with this contention. Bhagwati, J. observed in Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1954-25 ITR 449 : (AIR 1954 SC 364 ), that "when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business". He further observed that "the object of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business."14. Apart from showing mere investment, no facts have been brought out in this case to show that the company was in any way carrying on business in respect of shares. Its position, on the facts placed before us, is in no way different from an individual merely buying shares with a view to holding them for the purpose of earning dividends. No authority has been cited before us that in the case of an individual to acquire and hold shares with the object of receiving dividends is to carry on business. We are unable to hold that if a company does the same, it carried on business within S. 10 of the Act. | 0 | 3,407 | 578 | ### 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:
shares and making investments and generally undertaking financial and commercial obligations and transactions and operations of all kinds, the dividend income must be computed under S. 10 because the company is formed expressly for the purpose of carrying on business and holding shares in the course of it. In this connection herefers to the following passage from the judgment of Lord Sterndale in Commissioner of Inland Revenue v. Korean Syndicate Ltd., (1921) 12 Tax Cas 181 at p. 202:"But the fact that the limited company comes into existence in a different way is a matter to be considered. An individual comes into existence for many purposes, or perhaps sometimes for none, whereas a limited company comes into existence for some particular purpose, and if it comes into existence for the particular purpose of carrying out a transaction by getting possession of concessions and turning them to account, then that is a matter to be considered when you come to decide whether doing that is to carrying on a business or not." 10. The learned counsel for the Revenue, Mr. Viswanatha Sastri, contends that the company was not holding shares as part of its stock-in-trade, but was holding them merely as an investment company, and he says that in this respect an investment company even though it is formed under the Companies Act is in no way different from an individual who invests his own moneys or borrows and invests monies in shares for the purpose of getting dividends. He drew our attention to East India Prospecting Syndicate, Calcutta v. Commissioner of Excess profits Tax, Calcutta, 1951-19 ITR 571 : (AIR 1952 Cal 40 ), where the Calcutta High Court in dealing with the Excess Profits Tax Act (XV of 1940) held that "the mere holding of property or investments cannot amount to a business within the meaning of that term as used in the Indian Income-tax Act, 1922, and can only amount to a business as that term is used in the Excess profits Tax Act, 1940, by reason of the proviso to S. 2 (5) of that Act. The proviso to S. 2 (5) of the Excess Profits Tax Act, 1940, only makes the holding of investments or property by limited companies and incorporated societies tantamount to carrying on of business." But the assessee in that case was not carrying on any investment business at all, and, therefore, the decision is of not much assistance to us. The only assistance we can derive from that decision is that the Central Legislature in enacting the Excess Profits Tax Act understood the word "Business" to mean that the term would not include a mere holding of investments, and made a special provision to rope in limited companies or incorporated societies which were holding investments or property within the definition of the word "business". 11. Before the amendment of S. 12 by S. 9 of the Finance Act, 1955, it had been held by the Bombay High Court in Commissioner of Income-tax v. Ahmuty and Co. Ltd., 1955-27 ITR 63 (Bom), that where a company was a dealer in shares which constituted its stock-in-trade the dividend income received by the assessee in respect of its shares was income from business chargeable under S. 10 and the Income-tax authorities could to compel the assessee to show the income under S. 12. But there is not case where it had been held that even if the shares are not stock-in-trade of the assessee company the dividend can be assessed under S. 10. It seems that in practice an investment company was being assessed under S. 12 in respect of dividend income received by it. (See for example Eastern Investment Ltd. v. Commissioner of Income-tax West Bengal, 1951-20 ITR 1 : (AIR 1951 SC 278 ), Which is a case which came up to the Supreme Court. 12. It seems to us that on principle before dividends on shares can be assessed under S. 10, the assessee, be it an individual or a company or any other entity must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend he is not carrying on a business. The only way he can come under S. 10 is by converting the shares into stock-in-trade ,i.e., by carrying on business of dealing in stocks and shares as did the assessee in Commissioner of Income-tax, Bombay v. Bai Shirinbai, 1962-46 ITR 86 : (AIR 1963 SC 477 ). 13. Mr. Desai laid a great deal of stress on the argument that the very fact that a company is incorporated to carry on investment shows that the company is carrying on business. We are unable to agree with this contention. Bhagwati, J. observed in Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1954-25 ITR 449 : (AIR 1954 SC 364 ), that "when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business". He further observed that "the object of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business." 14. Apart from showing mere investment, no facts have been brought out in this case to show that the company was in any way carrying on business in respect of shares. Its position, on the facts placed before us, is in no way different from an individual merely buying shares with a view to holding them for the purpose of earning dividends. No authority has been cited before us that in the case of an individual to acquire and hold shares with the object of receiving dividends is to carry on business. We are unable to hold that if a company does the same, it carried on business within S. 10 of the Act.
### Response:
0
### Explanation:
11. Before the amendment of S. 12 by S. 9 of the Finance Act, 1955, it had been held by the Bombay High Court in Commissioner of Income-tax v. Ahmuty and Co. Ltd., 1955-27 ITR 63 (Bom), that where a company was a dealer in shares which constituted its stock-in-trade the dividend income received by the assessee in respect of its shares was income from business chargeable under S. 10 and the Income-tax authorities could to compel the assessee to show the income under S. 12. But there is not case where it had been held that even if the shares are not stock-in-trade of the assessee company the dividend can be assessed under S. 10. It seems that in practice an investment company was being assessed under S. 12 in respect of dividend income received by it. (See for example Eastern Investment Ltd. v. Commissioner of Income-tax West Bengal, 1951-20 ITR 1 : (AIR 1951 SC 278 ), Which is a case which came up to the Supreme Court12. It seems to us that on principle before dividends on shares can be assessed under S. 10, the assessee, be it an individual or a company or any other entity must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend he is not carrying on a business. The only way he can come under S. 10 is by converting the shares into stock-in-trade ,i.e., by carrying on business of dealing in stocks and shares as did the assessee in Commissioner of Income-tax, Bombay v. Bai Shirinbai, 1962-46 ITR 86 : (AIR 1963 SC 477 )13. Mr. Desai laid a great deal of stress on the argument that the very fact that a company is incorporated to carry on investment shows that the company is carrying on business. We are unable to agree with this contention. Bhagwati, J. observed in Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1954-25 ITR 449 : (AIR 1954 SC 364 ), that "when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business". He further observed that "the object of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business."14. Apart from showing mere investment, no facts have been brought out in this case to show that the company was in any way carrying on business in respect of shares. Its position, on the facts placed before us, is in no way different from an individual merely buying shares with a view to holding them for the purpose of earning dividends. No authority has been cited before us that in the case of an individual to acquire and hold shares with the object of receiving dividends is to carry on business. We are unable to hold that if a company does the same, it carried on business within S. 10 of the Act.
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SUJATA KOHLI Vs. REGISTRAR GENERAL, HIGH COURT OF DELHI & ORS | merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre. 18.2. It is also noteworthy that when from the year 2009, such exercise was undertaken by the High Court establishment to lay down proper norms and criteria for upward progression in DHJS, both the Associations of the judicial officers namely, Delhi Higher Judicial Service Officers Association as also Delhi Judicial Service Officers Association, made representations after the Full Court meeting dated 15.01.2010 and gradual implementation of the criteria was provided after due consideration of the said representations. It is not the case of the appellant that she is not a member of the Association of DHJS officers. 18.3. Viewed from any angle, it is but apparent that the appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion. 19. Coming now to the operation of the criteria in question, we are clearly of the view that providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted. 19.1. Though, in all fairness, the appellant has not attempted to question the reasonableness of the criteria as provided by the High Court but, having regard to the issues raised, we feel inclined to observe that looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five very good ACRs in the preceding five years from the base year. As already noticed, in fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales. 20. Therefore, the contentions urged on behalf of the appellant about non-communication of the criteria for promotion turn out to be totally meritless and the grievance as suggested on behalf of the appellant cannot be considered to be a legal grievance. 21. From the material placed on record, it is also apparent that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The fact that the case of the appellant was also duly considered is amply borne out from the minutes of the Full Court meetings, including those of the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016 (the relevant parts of two such resolutions dated 09.01.2015 and 28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2 hereinabove). Therefore, the appellant cannot raise a grievance that the respondent establishment has not accorded due consideration to her case for promotion. As noticed, case of the appellant was duly considered but she could not be promoted for not possessing the requisite gradings in her ACRs of the relevant period. 22. Having regard to the facts and circumstances of the present case, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant because the fact situation of the said cases were entirely different and this Court held that an employee cannot be denied the benefit of a provision for promotion which was amended after he became eligible for being promoted. In the present case, the High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 2012. | 0[ds]15.1. It does not require any elaborate discussion to say that the right to be considered for promotion is a fundamental right of equality of opportunity in the matter of employmentThe matter in issue in the present appeal relates to promotion to the posts of District and Sessions Judge or Principal Judge, Family Court within the cadre of DHJS. Apparently, no separate provision is found in the Rules of 1970 as regards such upward progression within the cadre and obviously, for such a matter, the residuary provision as contained in Rule 27 comes into operation by virtue of which, the directions or orders for the time being in force and applicable to the officers of comparable status in IAS would apply15.3.1 At this juncture, we may observe that the appellant had attempted to question the said Rule 27 of the Rules of 1970 as being ultra vires, particularly with reference to the decision of this Court in the case of All India Judges Association (supra). In our view, the High Court has rightly rejected such a challenge to Rule 27 because this residuary clause in the Rules of 1970 does not appear offending the law declared by this Court in any manner. This residuary clause is not of equating the judicial officers with the executive officers but only provides that in regard to the matters for which no provision or insufficient provision has been made in the Rules of 1970, the relevant rules, directions or orders as applicable to IAS shall regulate the conditions of service of the officers of DHJS. A perusal of the other provisions in the Rules of 1970 makes it clear that reference to the service conditions of the members of IAS is not an anathema to these rules and, on the contrary, wherever necessary, the applicable rules, orders or directions concerning the members of IAS do govern the service conditions of the judicial officers too. For example, in the matter of pay fixation of a promoted officer, it is provided in Rule 20 that such pay shall be fixed in the referred time scale in accordance with the financial rules, regulations et cetera, as applicable from time to time to the members of IAS; and as per Rule 26, the direct recruits are required to produce before appointment, a certificate of physical fitness in accordance with the standards prescribed for IAS. Such provisions, essentially meant for proper regulation of the service, by themselves, do not put the members of DHJS at par with the members of IAS for all purposes. Moreover, as noticed, what the High Court establishment has provided by way of the impugned resolutions are the norms for promotion while taking cue from the norms applicable to the members of IAS in the equivalent pay scale. Providing for such norms does not in any manner stand at conflict with the principles laid down in the case of All India Judges Association (supra). The challenge to the said Rule 27 has rightly been rejected by the High Court15.4.1. As noticed, in the case of Ajit Singh (supra), even while holding that the right to be considered for promotion is a fundamental right, the Constitution Bench pointed out the subtle distinction in the operation of the norms of seniority on one hand and any rule requiring consideration of merit on the other while observing, inter alia, that if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted16. Keeping the principles aforesaid in view, when we revert to the scheme of the Rules of 1970, the striking feature is that even at the entry level, the promotions are to be made either on merit-cum-seniority basis (As per clause (a) of Rule 7(1) and Rule 7A of the Rules of 1970) or on merit basis (As per clause (b) of Rule 7(1) of the Rules of 1970) . Further, grant of Selection Grade and Super Time Scale is also on assessment of merit–cum–seniority (As per Rule 18 of the Rules of 1970 ) . In the given scheme of the Rules of 1970, it is difficult to countenance any suggestion that in DHJS, merit could be forsaken at any level or only seniority be given primacy in the matter relating to upward progression to the higher posts of District and Sessions Judge or Principal Judge, Family Court. Rather, looking to the nature of posts, in every higher progression, merit would play a major role and would, perforce, acquire primacy17.1. In an overall comprehension of the matter, we have no hesitation in endorsing the views of the High Court in the impugned order that the no- norms position for upward progression in DHJS, as existing prior to the year 2009, could not have been continued with reorganisation of the District Courts and certain norms, commensurate with the posts in question, were required to be provided; and were accordingly provided with reference to the prescriptions for the officers of IAS in the equivalent pay scales. It has been asserted on behalf of the contesting respondent, and remains indisputable, that for the officers of such equivalent pay scales, the requirement had been of five very good ACR gradings (i.e., A grading) for five years preceding the date of consideration for higher positions. The High Court establishment had further been reasonable and balanced in its approach when such threshold requirement of five very good ACR gradings was not foisted on the officers immediately and, in keeping with the position obtainable in the past as also keeping in view the merit requirements, took a considered decision after examining the representations that such criteria be implemented gradually and started with the norms of two very good with three good ACR gradings for the year 2009 and systematically enhanced the norms to three very good with two good ACR gradings for the year 2010; four very good with one good ACR gradings for the year 2011; and eventually provided for five very good ACR gradings for the year 2012 and onwards17.2. In the given fact situation and the methodology of gradual implementation adopted by the High Court, the suggestion on the part of the appellant that there had been any so-called retrospective operation of revised criteria remains totally bereft of substance and could only be rejected18. Turning now to the main plank of the submissions on behalf of the appellant that she was not made aware of such so-called revised criteria, in our view, such submissions carry several shortcomings of their own. As noticed, the appellant joined DHJS in the year 2002 and eventually stood second in rank in her batch. She was confirmed with effect from 25.11.2004. She was, and would always be presumed to be, aware of all the requirements of the Rules of 1970. Moreover, the appellant, a member of DHJS, cannot suggest that she remained oblivious of the developments about creation of 9 Civil Districts in the year 2008 and increase in the strength of District and Sessions Judges to 11. The appellant was also aware of the fact that no specific provision was available in the Rules of 1970 as regards upward progression in DHJS, particularly to the posts of District and Sessions Judge and Principal Judge, Family Court and hence, by virtue of Rule 27 of the Rules of 1970, she would be deemed to be having constructive knowledge that the criteria to be adopted for such upward progression would be that as applicable for the equivalent posts in IAS. The Office Memorandum dated 18.02.2008 issued by the Government of India in its Ministry of Personnel, Public grievances and Pensions (Department of Personnel and Training) has been placed on record by the contesting respondent and it is not the case of the appellant that she was not aware of this Office Memorandum issued by the Government of India ( In the said OM, it had, inter alia, been provided that, – …in order to ensure greater selectivity at higher level of administration, the DPC may ensure that for the promotion to the scale of Rs.18,400–22,400 and above, the prescribed benchmark of Very Good is invariably met in all ACRs of five years under consideration…) . When it had consistently been provided that for promotion to the scale of Rs. 18,400 – 22,400 and above, the prescribed benchmark of very good ought to be met in all ACRs of five years under consideration; and when the higher posts of District and Sessions Judge and Principal Judge, Family Court do carry much higher scales of pay (vide Rule 18 ibid.), neither the High Court could be faulted in applying the same benchmark for such higher posts in DHJS nor the appellant could feign ignorance about the same18.1. Apart from the above, it is noteworthy that in the Rules of 1970, even the entry level promotion to the post in DHJS is on the basis of merit-cum- seniority or merit. Viewed in the light of such requirements, it goes without saying that any upward progression in DHJS could only be on the higher requirements of merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre18.2. It is also noteworthy that when from the year 2009, such exercise was undertaken by the High Court establishment to lay down proper norms and criteria for upward progression in DHJS, both the Associations of the judicial officers namely, Delhi Higher Judicial Service Officers Association as also Delhi Judicial Service Officers Association, made representations after the Full Court meeting dated 15.01.2010 and gradual implementation of the criteria was provided after due consideration of the said representations. It is not the case of the appellant that she is not a member of the Association of DHJS officers18.3. Viewed from any angle, it is but apparent that the appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion19. Coming now to the operation of the criteria in question, we are clearly of the view that providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted19.1. Though, in all fairness, the appellant has not attempted to question the reasonableness of the criteria as provided by the High Court but, having regard to the issues raised, we feel inclined to observe that looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five very good ACRs in the preceding five years from the base year. As already noticed, in fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales20. Therefore, the contentions urged on behalf of the appellant about non-communication of the criteria for promotion turn out to be totally meritless and the grievance as suggested on behalf of the appellant cannot be considered to be a legal grievance21. From the material placed on record, it is also apparent that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The fact that the case of the appellant was also duly considered is amply borne out from the minutes of the Full Court meetings, including those of the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016 (the relevant parts of two such resolutions dated 09.01.2015 and 28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2 hereinabove). Therefore, the appellant cannot raise a grievance that the respondent establishment has not accorded due consideration to her case for promotion. As noticed, case of the appellant was duly considered but she could not be promoted for not possessing the requisite gradings in her ACRs of the relevant period22. Having regard to the facts and circumstances of the present case, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant because the fact situation of the said cases were entirely different and this Court held that an employee cannot be denied the benefit of a provision for promotion which was amended after he became eligible for being promoted. In the present case, the High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 201223. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge/ Principal Judge, Family Court by operation of the criteria laid down in the impugned resolutions. Point number (1) is, accordingly, answered against the appellantIn our view, the submissions remain totally meritless and it cannot be said that the contesting respondent has caused any prejudice to the appellant in the matter of ACR gradings25. The fundamental requirement in law for communication of every entry in ACR to the employee concerned, as settled in the case of Dev Dutt (supra) and reaffirmed in the case of Sukhdev Singh v. Union of India: (2013) 9 SCC 566 , is neither of any doubt nor of any dispute25.1. In our view, reference to the aforesaid principles remains totally misplaced in the fact situation of the present case. It is not in dispute that the appellant was, in fact, informed of every grading made in her ACR. She was awarded B+ (good) in the years 2010, 2011, 2012 and 2013; and A (very good) in the year 2014. From the material placed on record, it appears that the appellant never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from B to B+ or A; and the High Court, acceding to her request, upgraded her ACR to B+. As noticed, the impugned resolution dated 27.01.2011 came to be adopted after due consideration of the representations made to the High Court and in conformity with the criteria provided by the Government of India for the posts equivalent in scale to that of District Judges. However, the criteria of having A (very good) grading in the preceding five years was implemented in a phased manner, as already noticed hereinbefore. The appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at B+ in the relevant years and did not question the same at the appropriate time and in appropriate manner. That being the position, the appellant cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her. The requirements of the decision in Dev Dutt (supra) were duly met with communication of ACR gradings to the appellant26. Having regard to the circumstances of this case, we are impelled to observe that while raising grievance with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individuals minimum merit, by itself, was not going to be decisive; but the relevant factor was going to be comparative merit of the persons in the zone of consideration. That being the position, when the persons in zone of consideration possessing A (very good) grading have been promoted in preference to her, the appellant cannot raise a grievance about her gradings after such promotions27. The other contention as on behalf of the appellant that only the overall ACR grading was communicated but not the point-wise grading or criteria for grading, again, does not advance the cause of the appellant in any manner. As noticed, the appellant did not challenge her B+ gradings in the years 2010, 2012 and 2013. She was awarded B grading in the year 2011 and upon her representation, the same was upgraded to B+. When the appellant had not otherwise challenged her B+ gradings for the years under consideration, she would not be entitled to raise any question on the process or criteria for such award of gradings. Even otherwise, the appellant has failed to show any legal requirement on the respondent establishment to supply to her anything other than the overall grading. Another feeble suggestion on behalf of the appellant, as noticed in the impugned order by the High Court, about want of knowledge of gradings of other officers has rightly not been pressed before us. The grading of an individual officer remains a matter between the officer and the establishment and any other officer cannot claim to be informed about the grading of any other officer as a matter of rightThese submissions are also sans merit and do not in any manner advance the cause of the appellant in the present case. This is for the simple reason that the system and method for awarding of the grades in ACR at the relevant time was equally applicable to all the judicial officers; and the gradings, not only of the appellant but of all other officers too, were made by way of the same methodology. Therein too, as noticed, the judicial officers work and performance was supervised and graded by the committees comprising of three Honble Judges and ultimately, the gradings were finalised by the Full Court. In the impugned order also, the High Court found such system to be a merited one but indicated the want of uniform set of rules or guidelines for all the appraisal committees to follow; and thereafter proceeded to lay down certain norms to be kept in view by the evaluation authorities. The observations by the High Court, essentially meant for improvement of the system with uniform set of guidelines, do not nullify the effect of the ACRs already marked by the existing system. The guidelines indicated by the High Court in the order impugned could only be construed as being meant for future implementation. Nothing turns upon such observations in relation to the case of the appellant29. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been able to establish that she had suffered any prejudice in the matter of ACR gradings. Point number (2) is also, accordingly, answered against the appellant. | 0 | 14,815 | 3,893 | ### Instruction:
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merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre. 18.2. It is also noteworthy that when from the year 2009, such exercise was undertaken by the High Court establishment to lay down proper norms and criteria for upward progression in DHJS, both the Associations of the judicial officers namely, Delhi Higher Judicial Service Officers Association as also Delhi Judicial Service Officers Association, made representations after the Full Court meeting dated 15.01.2010 and gradual implementation of the criteria was provided after due consideration of the said representations. It is not the case of the appellant that she is not a member of the Association of DHJS officers. 18.3. Viewed from any angle, it is but apparent that the appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion. 19. Coming now to the operation of the criteria in question, we are clearly of the view that providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted. 19.1. Though, in all fairness, the appellant has not attempted to question the reasonableness of the criteria as provided by the High Court but, having regard to the issues raised, we feel inclined to observe that looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five very good ACRs in the preceding five years from the base year. As already noticed, in fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales. 20. Therefore, the contentions urged on behalf of the appellant about non-communication of the criteria for promotion turn out to be totally meritless and the grievance as suggested on behalf of the appellant cannot be considered to be a legal grievance. 21. From the material placed on record, it is also apparent that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The fact that the case of the appellant was also duly considered is amply borne out from the minutes of the Full Court meetings, including those of the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016 (the relevant parts of two such resolutions dated 09.01.2015 and 28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2 hereinabove). Therefore, the appellant cannot raise a grievance that the respondent establishment has not accorded due consideration to her case for promotion. As noticed, case of the appellant was duly considered but she could not be promoted for not possessing the requisite gradings in her ACRs of the relevant period. 22. Having regard to the facts and circumstances of the present case, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant because the fact situation of the said cases were entirely different and this Court held that an employee cannot be denied the benefit of a provision for promotion which was amended after he became eligible for being promoted. In the present case, the High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 2012.
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for the appointments made from the year 201223. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge/ Principal Judge, Family Court by operation of the criteria laid down in the impugned resolutions. Point number (1) is, accordingly, answered against the appellantIn our view, the submissions remain totally meritless and it cannot be said that the contesting respondent has caused any prejudice to the appellant in the matter of ACR gradings25. The fundamental requirement in law for communication of every entry in ACR to the employee concerned, as settled in the case of Dev Dutt (supra) and reaffirmed in the case of Sukhdev Singh v. Union of India: (2013) 9 SCC 566 , is neither of any doubt nor of any dispute25.1. In our view, reference to the aforesaid principles remains totally misplaced in the fact situation of the present case. It is not in dispute that the appellant was, in fact, informed of every grading made in her ACR. She was awarded B+ (good) in the years 2010, 2011, 2012 and 2013; and A (very good) in the year 2014. From the material placed on record, it appears that the appellant never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from B to B+ or A; and the High Court, acceding to her request, upgraded her ACR to B+. As noticed, the impugned resolution dated 27.01.2011 came to be adopted after due consideration of the representations made to the High Court and in conformity with the criteria provided by the Government of India for the posts equivalent in scale to that of District Judges. However, the criteria of having A (very good) grading in the preceding five years was implemented in a phased manner, as already noticed hereinbefore. The appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at B+ in the relevant years and did not question the same at the appropriate time and in appropriate manner. That being the position, the appellant cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her. The requirements of the decision in Dev Dutt (supra) were duly met with communication of ACR gradings to the appellant26. Having regard to the circumstances of this case, we are impelled to observe that while raising grievance with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individuals minimum merit, by itself, was not going to be decisive; but the relevant factor was going to be comparative merit of the persons in the zone of consideration. That being the position, when the persons in zone of consideration possessing A (very good) grading have been promoted in preference to her, the appellant cannot raise a grievance about her gradings after such promotions27. The other contention as on behalf of the appellant that only the overall ACR grading was communicated but not the point-wise grading or criteria for grading, again, does not advance the cause of the appellant in any manner. As noticed, the appellant did not challenge her B+ gradings in the years 2010, 2012 and 2013. She was awarded B grading in the year 2011 and upon her representation, the same was upgraded to B+. When the appellant had not otherwise challenged her B+ gradings for the years under consideration, she would not be entitled to raise any question on the process or criteria for such award of gradings. Even otherwise, the appellant has failed to show any legal requirement on the respondent establishment to supply to her anything other than the overall grading. Another feeble suggestion on behalf of the appellant, as noticed in the impugned order by the High Court, about want of knowledge of gradings of other officers has rightly not been pressed before us. The grading of an individual officer remains a matter between the officer and the establishment and any other officer cannot claim to be informed about the grading of any other officer as a matter of rightThese submissions are also sans merit and do not in any manner advance the cause of the appellant in the present case. This is for the simple reason that the system and method for awarding of the grades in ACR at the relevant time was equally applicable to all the judicial officers; and the gradings, not only of the appellant but of all other officers too, were made by way of the same methodology. Therein too, as noticed, the judicial officers work and performance was supervised and graded by the committees comprising of three Honble Judges and ultimately, the gradings were finalised by the Full Court. In the impugned order also, the High Court found such system to be a merited one but indicated the want of uniform set of rules or guidelines for all the appraisal committees to follow; and thereafter proceeded to lay down certain norms to be kept in view by the evaluation authorities. The observations by the High Court, essentially meant for improvement of the system with uniform set of guidelines, do not nullify the effect of the ACRs already marked by the existing system. The guidelines indicated by the High Court in the order impugned could only be construed as being meant for future implementation. Nothing turns upon such observations in relation to the case of the appellant29. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been able to establish that she had suffered any prejudice in the matter of ACR gradings. Point number (2) is also, accordingly, answered against the appellant.
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State of Jammu & Kashmir & Others Vs. Thakur Ganga Singh & Another | of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Art. 14 or the principles governing the doctrine of classification have been questioned by either of the parties. Indeed accepting the said doctrine, the appellants contended that there was a valid classification under the rule while the respondents argued contra.The learned Additional Solicitor General contended, for the first time, before us that the appeal raised a new facet of the doctrine of equality, namely, whether an artificial person and a natural person have equal attributes within the meaning of the equality clause, and, therefore, the case involves a question of interpretation of the Constitution. This argument, if we may say so, involves the same contention in a different garb. If analysed, the argument only comes to this: as an artificial person and a natural person have different attributes, the classification made between them is valid. this argument does not suggest a new interpretation of Art. 14 of the Constitution, but only attempts to bring the rule within the doctrine of classification.We, therefore, hold that the question raised in this case does not involve any question of law as to the interpretation of the Constitution.8. Assuming that the case raises a question of law as to the interpretation of the Constitution, can it be said that the question raised is a substantial question of law within the meaning of cl. (2) of Art. 132. This aspect was considered by the Federal Court in T. M. Krishnaswami Pillai v. Governor General In Council 52 Cal WN (FB) 1: (AIR 1947 FC 37). That decision turned upon the provisions of S. 205 of the Government of India Act, 1935. The material part of that section says:S. 205: "(1) An appeal shall be to the Federal Court from any judgment, decree or final order of a High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made there under........"The Madras High Court gave a certificate to the effect that the case involved a substantial question of law as to the interpretation of S. 240(3) of the Government of India Act, 1935. Under S. 240(3) of the said Act, no person who was a member of a civil service of the Crown in India or held any civil post under the Crown in India could be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The High Court, on the facts found, held that the appellant therein had been offered a reasonable opportunity of showing cause within the meaning of the said section, but gave a certificate under S. 205(1) of the Government of India Act, 1935. In dealing with the propriety of issuing the certificate in the circumstances of that case, Zafrulla Khan, J., speaking on behalf of the Court, concisely and pointedly stated at p. 2(of Cal WN (FR)): (at p. 37 of AIR):"It was urged before us that the case involved a question relating to the interpretation of sub-sec. (3) of Section 240 of the Act .To the extent to which any guidance might have been needed for the purposes of this case on the interpretation of that sub-section that guidance was furnished so far as this Court is concerned in its judgment in Secy. of State v. I. M. Lall, (1945) FCR 103: (AIR 1945 FC 47). The rest was a simple question of fact. In our judgment no "substantial question of law" as to the interpretation of the Constitution Act was involved in this case, which could have formed the basis of a certificate under section 205(1) of the Act."On the question of interpretation of Art. 14 of the Constitution this Court in Budhan Choudhary v. State of Bihar, 1955-1 SCR 1045 at p; 1049: ((S) AIR 1955 SC 191 at p. 193) explained the true meaning and scope of that Article thus:"It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases: namely, geographical ,or according to objects or occupations or the like. What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration."This is only a restatement of the law that has been enunciated by this Court in Charanjit Lal Chowdhuri v. The Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ) and in other subsequent decisions. The said principles were reaffirmed in the recent decisions of this Court in Ram Krishna Dalmia v. Justice Tendolkar, (1959) SCR 279 : (AIR 1958 SC 538 ) and in Mohammed Haneef Qureshi v. State of Bihar, (1959) SCR 629 : (AIR 1958 SC 731 ). In view of the said decision there is no further scope for putting a new interpretation on the provisions of Art. 14 of the Constitution vis-_is the doctrine of classification.The interpretation of Art. 14 in the context of classification has been finally settled by the highest Court of this land and under Art. 141 of the Constitution that interpretation is binding on all the Courts with in the territory of India. What remained to be done by the High Court was only to apply that interpretation to the facts before it. A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided by this Court. | 1[ds]Under cl. (2) of Art. 132 there is no scope for granting a special leave unless two conditions are satisfied: (i) the case should involve a question of law as to the interpretation of the Constitution; and (iii) the said question should be a substantial question of law. The principle underlying the Article is that the final authority of interpreting the Constitution must rest with the Supreme Court. With that object the Article is freed from other limitations imposed under Art. S. 133 and 134 and the right of appeal of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the Constitution.an interpretation of Art. 14, a series of decisions of this Court evolved the doctrine of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Art. 14 or the principles governing the doctrine of classification have been questioned by either of theis only a restatement of the law that has been enunciated by this Court in Charanjit Lal Chowdhuri v. The Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ) and in other subsequent decisions. The said principles were reaffirmed in the recent decisions of this Court in Ram Krishna Dalmia v. Justice Tendolkar, (1959) SCR 279 : (AIR 1958 SC 538 ) and in Mohammed Haneef Qureshi v. State of Bihar, (1959) SCR 629 : (AIR 1958 SC 731 ). In view of the said decision there is no further scope for putting a new interpretation on the provisions of Art. 14 of the Constitution vis-_is the doctrine of classification.The interpretation of Art. 14 in the context of classification has been finally settled by the highest Court of this land and under Art. 141 of the Constitution that interpretation is binding on all the Courts with in the territory of India. What remained to be done by the High Court was only to apply that interpretation to the facts before it. A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided by this Court. | 1 | 2,733 | 407 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Art. 14 or the principles governing the doctrine of classification have been questioned by either of the parties. Indeed accepting the said doctrine, the appellants contended that there was a valid classification under the rule while the respondents argued contra.The learned Additional Solicitor General contended, for the first time, before us that the appeal raised a new facet of the doctrine of equality, namely, whether an artificial person and a natural person have equal attributes within the meaning of the equality clause, and, therefore, the case involves a question of interpretation of the Constitution. This argument, if we may say so, involves the same contention in a different garb. If analysed, the argument only comes to this: as an artificial person and a natural person have different attributes, the classification made between them is valid. this argument does not suggest a new interpretation of Art. 14 of the Constitution, but only attempts to bring the rule within the doctrine of classification.We, therefore, hold that the question raised in this case does not involve any question of law as to the interpretation of the Constitution.8. Assuming that the case raises a question of law as to the interpretation of the Constitution, can it be said that the question raised is a substantial question of law within the meaning of cl. (2) of Art. 132. This aspect was considered by the Federal Court in T. M. Krishnaswami Pillai v. Governor General In Council 52 Cal WN (FB) 1: (AIR 1947 FC 37). That decision turned upon the provisions of S. 205 of the Government of India Act, 1935. The material part of that section says:S. 205: "(1) An appeal shall be to the Federal Court from any judgment, decree or final order of a High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made there under........"The Madras High Court gave a certificate to the effect that the case involved a substantial question of law as to the interpretation of S. 240(3) of the Government of India Act, 1935. Under S. 240(3) of the said Act, no person who was a member of a civil service of the Crown in India or held any civil post under the Crown in India could be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The High Court, on the facts found, held that the appellant therein had been offered a reasonable opportunity of showing cause within the meaning of the said section, but gave a certificate under S. 205(1) of the Government of India Act, 1935. In dealing with the propriety of issuing the certificate in the circumstances of that case, Zafrulla Khan, J., speaking on behalf of the Court, concisely and pointedly stated at p. 2(of Cal WN (FR)): (at p. 37 of AIR):"It was urged before us that the case involved a question relating to the interpretation of sub-sec. (3) of Section 240 of the Act .To the extent to which any guidance might have been needed for the purposes of this case on the interpretation of that sub-section that guidance was furnished so far as this Court is concerned in its judgment in Secy. of State v. I. M. Lall, (1945) FCR 103: (AIR 1945 FC 47). The rest was a simple question of fact. In our judgment no "substantial question of law" as to the interpretation of the Constitution Act was involved in this case, which could have formed the basis of a certificate under section 205(1) of the Act."On the question of interpretation of Art. 14 of the Constitution this Court in Budhan Choudhary v. State of Bihar, 1955-1 SCR 1045 at p; 1049: ((S) AIR 1955 SC 191 at p. 193) explained the true meaning and scope of that Article thus:"It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases: namely, geographical ,or according to objects or occupations or the like. What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration."This is only a restatement of the law that has been enunciated by this Court in Charanjit Lal Chowdhuri v. The Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ) and in other subsequent decisions. The said principles were reaffirmed in the recent decisions of this Court in Ram Krishna Dalmia v. Justice Tendolkar, (1959) SCR 279 : (AIR 1958 SC 538 ) and in Mohammed Haneef Qureshi v. State of Bihar, (1959) SCR 629 : (AIR 1958 SC 731 ). In view of the said decision there is no further scope for putting a new interpretation on the provisions of Art. 14 of the Constitution vis-_is the doctrine of classification.The interpretation of Art. 14 in the context of classification has been finally settled by the highest Court of this land and under Art. 141 of the Constitution that interpretation is binding on all the Courts with in the territory of India. What remained to be done by the High Court was only to apply that interpretation to the facts before it. A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided by this Court.
### Response:
1
### Explanation:
Under cl. (2) of Art. 132 there is no scope for granting a special leave unless two conditions are satisfied: (i) the case should involve a question of law as to the interpretation of the Constitution; and (iii) the said question should be a substantial question of law. The principle underlying the Article is that the final authority of interpreting the Constitution must rest with the Supreme Court. With that object the Article is freed from other limitations imposed under Art. S. 133 and 134 and the right of appeal of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the Constitution.an interpretation of Art. 14, a series of decisions of this Court evolved the doctrine of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Art. 14 or the principles governing the doctrine of classification have been questioned by either of theis only a restatement of the law that has been enunciated by this Court in Charanjit Lal Chowdhuri v. The Union of India, 1950 SCR 869 : (AIR 1951 SC 41 ) and in other subsequent decisions. The said principles were reaffirmed in the recent decisions of this Court in Ram Krishna Dalmia v. Justice Tendolkar, (1959) SCR 279 : (AIR 1958 SC 538 ) and in Mohammed Haneef Qureshi v. State of Bihar, (1959) SCR 629 : (AIR 1958 SC 731 ). In view of the said decision there is no further scope for putting a new interpretation on the provisions of Art. 14 of the Constitution vis-_is the doctrine of classification.The interpretation of Art. 14 in the context of classification has been finally settled by the highest Court of this land and under Art. 141 of the Constitution that interpretation is binding on all the Courts with in the territory of India. What remained to be done by the High Court was only to apply that interpretation to the facts before it. A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided by this Court.
|
Kanchan Udyog Limited Vs. United Spirits Limited | that kind in mind as not unlikely to result from a breach. After noticing The Achilleas (2009) AC 61 it was observed: "69......The Achilleas shows that there may be cases, where based on the individual circumstances surrounding the making of the contract, this assumed expectation is not well founded." The observations noticed therein from para 23 and 24 of the Parabola case (2011) QB 477 are also considered relevant as follows: "23....The next task is to quantify the loss. Where that involves a hypothetical exercise, the court does not apply the same balance of probability approach as it would to the proof of past facts. Rather, it estimates the loss by making the best attempt it can to evaluate the chances, great or small (unless those chances amount to no more than remote speculation) taking all significant factors into consideration.24.....The judge had to make a reasonable assessment and different judges might come to different assessments without being unreasonable. An appellate court will be slow to interfere with the judges assessment." 27. The appellate court with reference to evidence has adequately discussed that the appellant failed to take steps to mitigate it losses under the Explanation to Section 73 of the Act. We find no reason to come to any different conclusion from the materials on record. If concentrates were available from M/s. VEC, the appellant had to offer an explanation why it stopped lifting the same after having done so for nearly a year, and could have continued with the business otherwise and earned profits as observed in Payzu Ltd. (supra). It could also have taken steps to sell the unit after its closure in May, 1989 rather than to do so belatedly in 1996. No reasonable steps had been displayed as taken by the appellant for utilisation of its bottling plant by negotiations with others in the business. Nothing had been demonstrated of the injury that would have been caused to it thereby. 28. That leaves the question with regard to reliance loss and the expectation loss. Whether the two could be maintainable simultaneously or were mutually exclusive? In Pullock & Mulla, 14th Edition, Volume II, page 1174, the primary object for protection of expectation interest, has been described as to put the innocent party in the position which he would have occupied had the contract been performed. The general aim of the law being to protect the innocent partys defeated financial expectation and compensate him for his loss of bargain, subject to the rules of causation and remoteness. The purpose of protection of reliance interest is to put the plaintiff in the position in which he would have been if the contract had never been made. The loss may include expenses incurred in preparation by the innocent partys own performance, expenses incurred after the breach or even pre-contract expenditure but subject to remoteness. The following passage from the same is considered appropriate for extraction: "No Recovery for Both, the Expectation Loss and the Reliance loss." Although the rules as to damages seek to protect both the expectation and the reliance interests, the innocent party cannot ordinarily recover both expectation loss, viz., loss of profit, and reliance loss, viz., expenses incurred in reliance on the promise; that would involve double counting. He has to choose between the two measures. However, he cannot claim reliance losses to put himself in a better position that if the contract had been fully performed: else, the award of damages for reliance losses would confer a windfall on the plaintiff, and would increase the damages in proportion to the claimants inefficiency in performance, rather than in proportion to the gravity of the breach, and probably of normal principles of causation. In such cases, therefore, the plaintiff can recover the loss on account of the wasted expenditure or outlay only to the extent of the expected gain; and the onus of proving lies on the party committing the breach to show that the reliance costs (or any part of them) would not have been recouped, and would still have been wasted, had the contract been performed. 29. In C & P Haulage (supra), which considers Cullinane (supra) also, it has been observed as follows: "The law of contract compensates a plaintiff for damages resulting from the defendants breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the defendants breach. In these circumstances, the true consequence of the defendants breach is that the plaintiff is released from his obligation to complete the contract-or in other words, he is saved from incurring further losses. If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiffs enterprise. Moreover, the amount of damages would increase not in relation to the gravity or consequences of the breach but in relation to the inefficiency with which the plaintiff carried out the contract. The greater his expenses owing to inefficiency, the greater the damages." 30. In view of the conclusion, that the appellant was not entitled to any expectation loss towards anticipated profits, for reasons discussed, any grant of reliance loss would tantamount to giving a benefit to it for what was essentially its own lapses. There are no allegations of any deficiency in the plant. Contrary to its claim of Rs. 2.52 crores towards cost of the plant, the learned Single Judge awarded Rs. 1.60 crores without any discussion for the basis of the same. Though the appellant had preferred a cross appeal, it did not press the same. | 0[ds]The primary document, Exhibit `F1 not having been proved, any assumptions in Exhibit `C already considered in the latter, could not be the basis for a profit projection. There was no evidence in support of the claim that Exhibit `C had been prepared in association with Dr. R.K. Baisya. No adverse inference could be drawn against the respondent and it was for the appellant to have summoned Dr. Baisya as a witness to prove its case, since he had since resigned and left thethe facts of the present case, the conduct of the appellant in placing orders and receiving supply of concentrates directly from M/s. VEC, for a period of nearly one year, and continuing to do so even after it wrote to the respondent in this regard, without recourse to any legal remedies for denial of its legal right to receive concentrates from the respondent, undoubtedly amounts to waiver by conduct and acquiescence by it to the new arrangement. The plea that it was done under compulsion, and not voluntarily, is devoid of any material, substance and evidence. It is unacceptable and merits no consideration. Alternatively, if it was an assignment under Clause 5 of the agreement, there had been no termination of the contract by the respondent.Exhibit `C was a loan application, submitted by the appellant to the WBIDC. There is no evidence that it was prepared together with the respondent. The intent and purpose of a loan application is entirely different, relevant only for the purpose of the borrowerthe lender. The most fundamental characteristic a prospective lender will want to examine in a loan application are assessment of the Credit History of the Borrower, Cash Flow History and Projections for the Business, Collateral that is Available to Secure the Loan and Character of the Borrower. The profitability projections in such an application are only broad estimates based on assumptions and presumptions of the borrower intended to convince the lender of the viability of its project, in absence of which the loan application itself may not be considered. The appellants projections in it of assumed estimated profitability for viability of the project also went completely awry from its own admission that there was no likelihood of profit in the next 5 to 6 years. Viability of the project for sanction of loan cannot lead to an automatic presumption of profits, in the facts of the case, especially when there is evidence that the appellant did not even deploy manpower in accordance with the projections made by it in the loan application. It was not sanctioned on basis of the assumption of the appellant for earning profits. The loan was sanctioned by the WBIDC on basis of thefeasibility report by WEBCON Exhibit `F1. The loan application, after consideration, lost its independent identity and got subsumed in Exhibit `F1.Annexure `M to the plaint containing the projected estimated profitability was only a reproduction of Exhibit `C. The primary document was Exhibit `F1, which took into consideration Exhibit `C also. The former being inadmissible in evidence, as not having been proved in accordance with law, the appellant cannot seek to prove indirectly what it has been unable to prove directly. The conclusion of the appellate court that Exhibitbeing the primary document, the claim for loss of anticipated profits on basis of Exhibit `C was unsustainable, cannot be faulted with.25. In the facts of the present case, it cannot be held that the breach alone was the cause for loss of anticipated profits, much less was it the primary or dominant reason. The appellate court has adequately discussed the appellants letter dated 04.07.1987 thanking the respondent for its advertising support. During the yearthe respondent spent Rs. 2,05,13,376.14 for advertising purposes evident from its balance sheet. Similarly, init spent Rs. 1,65,87,158.73 towards advertisement and sale promotions. On the contrary, for the year ending 31.03.1987, the appellant spent Rs. 6,68,856.00 towards advertisement and in the yearit spent only Rs. 39,288.00. The fact that it was unable to pay for the concentrates seeking deferred payment, acknowledgement on 09.05.1988 that it would continue to suffer loss for the next six years uptoseeking long term credit for five years for supply of concentrates and its acknowledgement in letter dated 27.04.1987 that due to "many factors already discussed with you we have not been able to run the factory and the sales of our product have not picked up in the market", and not to press for payment of consultancy fees, failure to deploy adequate manpower as per its own projections demonstrates the poor financial condition of the appellant as the prime reason for its inability to run the plant and earn profits. As against a value of Rs. 4,26,685.19 of raw materials in 1989, the appellant had an over draft of Rs. 13,89,000.00. It had a credit entry of Rs. 5,135.00 only in July, 1988 in its account with the State Bank of India. The current account with the Union Bank of India reflected a balance of Rs. 1,28,619.25 on 28.03.1989. The Bank balance on 31.03.1989 reflected from its balance sheet was only Rs. 43,345.38, and its loss as reflected in the balance sheet on 31.03.1987 was Rs. 18,47,018.11. In the facts of the present case, it cannot be held that the breach by the respondent was the cause, much less the dominant cause for loss of anticipated profits by the appellant. In Galoo Ltd. (supra) the emphasis was on the common sense approach, holding that the breach may have given the opportunity to incur the loss but did not cause the loss, in the sense in which the word "cause" is used in the law.The appellate court with reference to evidence has adequately discussed that the appellant failed to take steps to mitigate it losses under the Explanation to Section 73 of the Act. We find no reason to come to any different conclusion from the materials on record. If concentrates were available from M/s. VEC, the appellant had to offer an explanation why it stopped lifting the same after having done so for nearly a year, and could have continued with the business otherwise and earned profits as observed in Payzu Ltd. (supra). It could also have taken steps to sell the unit after its closure in May, 1989 rather than to do so belatedly in 1996. No reasonable steps had been displayed as taken by the appellant for utilisation of its bottling plant by negotiations with others in the business. Nothing had been demonstrated of the injury that would have been caused to it thereby.In view of the conclusion, that the appellant was not entitled to any expectation loss towards anticipated profits, for reasons discussed, any grant of reliance loss would tantamount to giving a benefit to it for what was essentially its own lapses. There are no allegations of any deficiency in the plant. Contrary to its claim of Rs. 2.52 crores towards cost of the plant, the learned Single Judge awarded Rs. 1.60 crores without any discussion for the basis of the same. Though the appellant had preferred a cross appeal, it did not press the same. | 0 | 6,937 | 1,314 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
that kind in mind as not unlikely to result from a breach. After noticing The Achilleas (2009) AC 61 it was observed: "69......The Achilleas shows that there may be cases, where based on the individual circumstances surrounding the making of the contract, this assumed expectation is not well founded." The observations noticed therein from para 23 and 24 of the Parabola case (2011) QB 477 are also considered relevant as follows: "23....The next task is to quantify the loss. Where that involves a hypothetical exercise, the court does not apply the same balance of probability approach as it would to the proof of past facts. Rather, it estimates the loss by making the best attempt it can to evaluate the chances, great or small (unless those chances amount to no more than remote speculation) taking all significant factors into consideration.24.....The judge had to make a reasonable assessment and different judges might come to different assessments without being unreasonable. An appellate court will be slow to interfere with the judges assessment." 27. The appellate court with reference to evidence has adequately discussed that the appellant failed to take steps to mitigate it losses under the Explanation to Section 73 of the Act. We find no reason to come to any different conclusion from the materials on record. If concentrates were available from M/s. VEC, the appellant had to offer an explanation why it stopped lifting the same after having done so for nearly a year, and could have continued with the business otherwise and earned profits as observed in Payzu Ltd. (supra). It could also have taken steps to sell the unit after its closure in May, 1989 rather than to do so belatedly in 1996. No reasonable steps had been displayed as taken by the appellant for utilisation of its bottling plant by negotiations with others in the business. Nothing had been demonstrated of the injury that would have been caused to it thereby. 28. That leaves the question with regard to reliance loss and the expectation loss. Whether the two could be maintainable simultaneously or were mutually exclusive? In Pullock & Mulla, 14th Edition, Volume II, page 1174, the primary object for protection of expectation interest, has been described as to put the innocent party in the position which he would have occupied had the contract been performed. The general aim of the law being to protect the innocent partys defeated financial expectation and compensate him for his loss of bargain, subject to the rules of causation and remoteness. The purpose of protection of reliance interest is to put the plaintiff in the position in which he would have been if the contract had never been made. The loss may include expenses incurred in preparation by the innocent partys own performance, expenses incurred after the breach or even pre-contract expenditure but subject to remoteness. The following passage from the same is considered appropriate for extraction: "No Recovery for Both, the Expectation Loss and the Reliance loss." Although the rules as to damages seek to protect both the expectation and the reliance interests, the innocent party cannot ordinarily recover both expectation loss, viz., loss of profit, and reliance loss, viz., expenses incurred in reliance on the promise; that would involve double counting. He has to choose between the two measures. However, he cannot claim reliance losses to put himself in a better position that if the contract had been fully performed: else, the award of damages for reliance losses would confer a windfall on the plaintiff, and would increase the damages in proportion to the claimants inefficiency in performance, rather than in proportion to the gravity of the breach, and probably of normal principles of causation. In such cases, therefore, the plaintiff can recover the loss on account of the wasted expenditure or outlay only to the extent of the expected gain; and the onus of proving lies on the party committing the breach to show that the reliance costs (or any part of them) would not have been recouped, and would still have been wasted, had the contract been performed. 29. In C & P Haulage (supra), which considers Cullinane (supra) also, it has been observed as follows: "The law of contract compensates a plaintiff for damages resulting from the defendants breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the defendants breach. In these circumstances, the true consequence of the defendants breach is that the plaintiff is released from his obligation to complete the contract-or in other words, he is saved from incurring further losses. If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiffs enterprise. Moreover, the amount of damages would increase not in relation to the gravity or consequences of the breach but in relation to the inefficiency with which the plaintiff carried out the contract. The greater his expenses owing to inefficiency, the greater the damages." 30. In view of the conclusion, that the appellant was not entitled to any expectation loss towards anticipated profits, for reasons discussed, any grant of reliance loss would tantamount to giving a benefit to it for what was essentially its own lapses. There are no allegations of any deficiency in the plant. Contrary to its claim of Rs. 2.52 crores towards cost of the plant, the learned Single Judge awarded Rs. 1.60 crores without any discussion for the basis of the same. Though the appellant had preferred a cross appeal, it did not press the same.
### Response:
0
### Explanation:
no consideration. Alternatively, if it was an assignment under Clause 5 of the agreement, there had been no termination of the contract by the respondent.Exhibit `C was a loan application, submitted by the appellant to the WBIDC. There is no evidence that it was prepared together with the respondent. The intent and purpose of a loan application is entirely different, relevant only for the purpose of the borrowerthe lender. The most fundamental characteristic a prospective lender will want to examine in a loan application are assessment of the Credit History of the Borrower, Cash Flow History and Projections for the Business, Collateral that is Available to Secure the Loan and Character of the Borrower. The profitability projections in such an application are only broad estimates based on assumptions and presumptions of the borrower intended to convince the lender of the viability of its project, in absence of which the loan application itself may not be considered. The appellants projections in it of assumed estimated profitability for viability of the project also went completely awry from its own admission that there was no likelihood of profit in the next 5 to 6 years. Viability of the project for sanction of loan cannot lead to an automatic presumption of profits, in the facts of the case, especially when there is evidence that the appellant did not even deploy manpower in accordance with the projections made by it in the loan application. It was not sanctioned on basis of the assumption of the appellant for earning profits. The loan was sanctioned by the WBIDC on basis of thefeasibility report by WEBCON Exhibit `F1. The loan application, after consideration, lost its independent identity and got subsumed in Exhibit `F1.Annexure `M to the plaint containing the projected estimated profitability was only a reproduction of Exhibit `C. The primary document was Exhibit `F1, which took into consideration Exhibit `C also. The former being inadmissible in evidence, as not having been proved in accordance with law, the appellant cannot seek to prove indirectly what it has been unable to prove directly. The conclusion of the appellate court that Exhibitbeing the primary document, the claim for loss of anticipated profits on basis of Exhibit `C was unsustainable, cannot be faulted with.25. In the facts of the present case, it cannot be held that the breach alone was the cause for loss of anticipated profits, much less was it the primary or dominant reason. The appellate court has adequately discussed the appellants letter dated 04.07.1987 thanking the respondent for its advertising support. During the yearthe respondent spent Rs. 2,05,13,376.14 for advertising purposes evident from its balance sheet. Similarly, init spent Rs. 1,65,87,158.73 towards advertisement and sale promotions. On the contrary, for the year ending 31.03.1987, the appellant spent Rs. 6,68,856.00 towards advertisement and in the yearit spent only Rs. 39,288.00. The fact that it was unable to pay for the concentrates seeking deferred payment, acknowledgement on 09.05.1988 that it would continue to suffer loss for the next six years uptoseeking long term credit for five years for supply of concentrates and its acknowledgement in letter dated 27.04.1987 that due to "many factors already discussed with you we have not been able to run the factory and the sales of our product have not picked up in the market", and not to press for payment of consultancy fees, failure to deploy adequate manpower as per its own projections demonstrates the poor financial condition of the appellant as the prime reason for its inability to run the plant and earn profits. As against a value of Rs. 4,26,685.19 of raw materials in 1989, the appellant had an over draft of Rs. 13,89,000.00. It had a credit entry of Rs. 5,135.00 only in July, 1988 in its account with the State Bank of India. The current account with the Union Bank of India reflected a balance of Rs. 1,28,619.25 on 28.03.1989. The Bank balance on 31.03.1989 reflected from its balance sheet was only Rs. 43,345.38, and its loss as reflected in the balance sheet on 31.03.1987 was Rs. 18,47,018.11. In the facts of the present case, it cannot be held that the breach by the respondent was the cause, much less the dominant cause for loss of anticipated profits by the appellant. In Galoo Ltd. (supra) the emphasis was on the common sense approach, holding that the breach may have given the opportunity to incur the loss but did not cause the loss, in the sense in which the word "cause" is used in the law.The appellate court with reference to evidence has adequately discussed that the appellant failed to take steps to mitigate it losses under the Explanation to Section 73 of the Act. We find no reason to come to any different conclusion from the materials on record. If concentrates were available from M/s. VEC, the appellant had to offer an explanation why it stopped lifting the same after having done so for nearly a year, and could have continued with the business otherwise and earned profits as observed in Payzu Ltd. (supra). It could also have taken steps to sell the unit after its closure in May, 1989 rather than to do so belatedly in 1996. No reasonable steps had been displayed as taken by the appellant for utilisation of its bottling plant by negotiations with others in the business. Nothing had been demonstrated of the injury that would have been caused to it thereby.In view of the conclusion, that the appellant was not entitled to any expectation loss towards anticipated profits, for reasons discussed, any grant of reliance loss would tantamount to giving a benefit to it for what was essentially its own lapses. There are no allegations of any deficiency in the plant. Contrary to its claim of Rs. 2.52 crores towards cost of the plant, the learned Single Judge awarded Rs. 1.60 crores without any discussion for the basis of the same. Though the appellant had preferred a cross appeal, it did not press the same.
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K. Kamaraja Nadar Vs. Kunju Thevar & Others | Commission on the other need not be scrutinized for the purposes of negativing this contention. It is enough to say that such a contention has only got to be stated in order to be negatived. It would be absured to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of S. 117 and would involve a dismissal of the petition under S. 85 or S. 90 (3).The above illustration is sufficient to demonstrate that the words "in favour of the Secretary to the Election Commission" used in S. 117 are directory and not mandatory in their character. What is of the essence of the provision contained in S .117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.32. If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of S. 117. No such literal compliance with the terms of S. 117 is at all necessary as is contended for on behalf of the appellant before us.33. As regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we may only refer to our judgment about to be delivered in Mallappa Basappa v. Basavaraj Ayyappa, Civil Appeal No. 76 of 1958 : (A I R 1958 S C 698) (D) where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration.34. Considering Civil Appeal No. 763 of 1957 in the light of the observations made above, we find that Sundaraju Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under S. 38 but who retired from the contest under S. 55A(2) before the commencement of the poll was included in the expression "contesting candidate" used in S. 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected, a necessary party to the petition. Inasmuch as he was not joined as a respondent, the petition was liable to be dismissed under S. 90 (3) of the Act.35. This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I. A. No. 3 of 1957 or otherwise.36. In regard to the deposit of security, however, the position was quite different. According to the evidence given by K. Nataraja Mudaliar, head accountant in charge of the Madurai Taluk Sub Treasury, the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission; also that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such authority. If that was so, there was sufficient compliance with the requirements of S. 117 and there could be no question of dismissing the petition for non-compliance with the provisions of that section.37. Having regard therefore to the conclusion reached above in regard to the non-compliance with the provisions of S. 82, Civil Appeal No. 763 of 1957 will be allowed, the orders of dismissal made by the High Court on the writ petitions Nos. 531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated 5th July 1957, will be vacated and the Election Petition No. 147 of 1957 will be dismissed with costs. As the appellant has failed in his contention in regard to the provisions of S. 117, we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court38. Civil Appeal No. 764 of 1957 also shares a similar fate. The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll. They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under S. 101. The Election Petition No. 74 of 1957 filed by him was thus liable to be dismissed for non-joinder of necessary parties under S. 90 (3) of the Act. | 1[ds]29. When we come to the provisions of Part VI of the Act relating to disputes regarding elections, we find that there is no definition given in S. 79 of the expression "contesting candidate", though there are definitions of "candidate" and "returned candidate" to be found therein.An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Ss. 100(i) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. The words "other than the petitioner are meant to exclude the petitioner when he happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under S. 38,that is to say,candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the contest under S.(2). If the provisions of S. 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under S. 85 of the Act to dismiss the petition and similar are the consequences ofwith the provisions of S. 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. Section 90 (3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Section 90 (3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose.30. Turning now to S. 117, we find that it is a provision relating to the deposit of security for the costs of the petition. When a petitioner presents an election petition to the Election Commission under S. 81 he is to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. The Government Treasury receipt must show that such deposit has been actually made by him either in a Government Treasury or in the Reserve Bank of India; it must also show that it has been so made in favour of the Secretary to the Election Commission and it must further show that it has been made as security for the costs of the petition. These are the three requirements of the section which have to be fulfilled.If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of S. 117. No such literal compliance with the terms of S. 117 is at all necessary as is contended for on behalf of the appellant before us.Considering Civil Appeal No. 763 of 1957 in the light of the observations made above, we find that Sundaraju Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under S. 38 but who retired from the contest under S. 55A(2) before the commencement of the poll was included in the expression "contesting candidate" used in S. 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected, a necessary party to the petition. Inasmuch as he was not joined as a respondent, the petition was liable to be dismissed under S. 90 (3) of the Act.35. This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I. A. No. 3 of 1957 or otherwise.36. In regard to the deposit of security, however, the position was quite different. According to the evidence given by K. Nataraja Mudaliar, head accountant in chargeof the Madurai TalukSub Treasury, the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission; also that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such authority. If that was so, there was sufficient compliance with the requirements of S. 117 and there could be no question of dismissing the petition forwith the provisions of that section.37. Having regard therefore to the conclusion reached above in regard to thewith the provisions of S. 82, Civil Appeal No. 763 of 1957 will be allowed, the orders of dismissal made by the High Court on the writ petitions Nos. 531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated 5th July 1957, will be vacated and the Election Petition No. 147 of 1957 will be dismissed with costs. As the appellant has failed in his contention in regard to the provisions of S. 117, we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court38. Civil Appeal No. 764 of 1957 also shares a similar fate. The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll. They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under S. 101. The Election Petition No. 74 of 1957 filed by him was thus liable to be dismissed forof necessary parties under S. 90 (3) of the Act.So far as Civil Appeal No. 48 of 1958 in concerned, the difficulty which faces the appellant is that we have nothing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under S. 117 . The copy of the chalan which is cyclostyled at page 45 of the record is deficient in material particulars and does not throw any light on the question. The appellant no doubt made an application to the Election Tribunal to try his objection as regards thewith the provisions of that section as a preliminary objection and determine whether the second respondent had complied with the provisions of S. 117 and if not to dismiss his petition. The Election Tribunal , however, did not decide this preliminary objection but ordered that the trial of the petition do proceed. The High Court before whom the Writ Petition M. J. C. No. 480 of 1957 was filed also came to the same conclusion as it thought that the matter could be decided at the time of hearing itself and dismissed the application.41.We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd respondent in support of the numerous allegations of corrupt practices attributed by him to the appellant, his agents or others working on his behalf; examination of a large number of witnesses by or on behalf of the appellant controverting the allegations made against him; examination of witnesses in support of the recrimination submitted by the appellant against the 2nd respondent; and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal . | 1 | 9,389 | 1,739 | ### Instruction:
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Commission on the other need not be scrutinized for the purposes of negativing this contention. It is enough to say that such a contention has only got to be stated in order to be negatived. It would be absured to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of S. 117 and would involve a dismissal of the petition under S. 85 or S. 90 (3).The above illustration is sufficient to demonstrate that the words "in favour of the Secretary to the Election Commission" used in S. 117 are directory and not mandatory in their character. What is of the essence of the provision contained in S .117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.32. If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of S. 117. No such literal compliance with the terms of S. 117 is at all necessary as is contended for on behalf of the appellant before us.33. As regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we may only refer to our judgment about to be delivered in Mallappa Basappa v. Basavaraj Ayyappa, Civil Appeal No. 76 of 1958 : (A I R 1958 S C 698) (D) where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration.34. Considering Civil Appeal No. 763 of 1957 in the light of the observations made above, we find that Sundaraju Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under S. 38 but who retired from the contest under S. 55A(2) before the commencement of the poll was included in the expression "contesting candidate" used in S. 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected, a necessary party to the petition. Inasmuch as he was not joined as a respondent, the petition was liable to be dismissed under S. 90 (3) of the Act.35. This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I. A. No. 3 of 1957 or otherwise.36. In regard to the deposit of security, however, the position was quite different. According to the evidence given by K. Nataraja Mudaliar, head accountant in charge of the Madurai Taluk Sub Treasury, the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission; also that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such authority. If that was so, there was sufficient compliance with the requirements of S. 117 and there could be no question of dismissing the petition for non-compliance with the provisions of that section.37. Having regard therefore to the conclusion reached above in regard to the non-compliance with the provisions of S. 82, Civil Appeal No. 763 of 1957 will be allowed, the orders of dismissal made by the High Court on the writ petitions Nos. 531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated 5th July 1957, will be vacated and the Election Petition No. 147 of 1957 will be dismissed with costs. As the appellant has failed in his contention in regard to the provisions of S. 117, we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court38. Civil Appeal No. 764 of 1957 also shares a similar fate. The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll. They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under S. 101. The Election Petition No. 74 of 1957 filed by him was thus liable to be dismissed for non-joinder of necessary parties under S. 90 (3) of the Act.
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it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of S. 117. No such literal compliance with the terms of S. 117 is at all necessary as is contended for on behalf of the appellant before us.Considering Civil Appeal No. 763 of 1957 in the light of the observations made above, we find that Sundaraju Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under S. 38 but who retired from the contest under S. 55A(2) before the commencement of the poll was included in the expression "contesting candidate" used in S. 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected, a necessary party to the petition. Inasmuch as he was not joined as a respondent, the petition was liable to be dismissed under S. 90 (3) of the Act.35. This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I. A. No. 3 of 1957 or otherwise.36. In regard to the deposit of security, however, the position was quite different. According to the evidence given by K. Nataraja Mudaliar, head accountant in chargeof the Madurai TalukSub Treasury, the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission; also that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such authority. If that was so, there was sufficient compliance with the requirements of S. 117 and there could be no question of dismissing the petition forwith the provisions of that section.37. Having regard therefore to the conclusion reached above in regard to thewith the provisions of S. 82, Civil Appeal No. 763 of 1957 will be allowed, the orders of dismissal made by the High Court on the writ petitions Nos. 531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated 5th July 1957, will be vacated and the Election Petition No. 147 of 1957 will be dismissed with costs. As the appellant has failed in his contention in regard to the provisions of S. 117, we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court38. Civil Appeal No. 764 of 1957 also shares a similar fate. The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll. They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under S. 101. The Election Petition No. 74 of 1957 filed by him was thus liable to be dismissed forof necessary parties under S. 90 (3) of the Act.So far as Civil Appeal No. 48 of 1958 in concerned, the difficulty which faces the appellant is that we have nothing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under S. 117 . The copy of the chalan which is cyclostyled at page 45 of the record is deficient in material particulars and does not throw any light on the question. The appellant no doubt made an application to the Election Tribunal to try his objection as regards thewith the provisions of that section as a preliminary objection and determine whether the second respondent had complied with the provisions of S. 117 and if not to dismiss his petition. The Election Tribunal , however, did not decide this preliminary objection but ordered that the trial of the petition do proceed. The High Court before whom the Writ Petition M. J. C. No. 480 of 1957 was filed also came to the same conclusion as it thought that the matter could be decided at the time of hearing itself and dismissed the application.41.We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd respondent in support of the numerous allegations of corrupt practices attributed by him to the appellant, his agents or others working on his behalf; examination of a large number of witnesses by or on behalf of the appellant controverting the allegations made against him; examination of witnesses in support of the recrimination submitted by the appellant against the 2nd respondent; and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal .
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Anirudh Kumar Vs. Municipal Corp. Of Delhi | within its ambit hygienic atmosphere and ecological balance. It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. There is constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment. Dealing with the municipal laws providing for power of demolition, it was observed that while interpreting municipal legislation framed in public interest, a strict constitutional approach must be adopted. A perusal of the master plan shows that the public purpose behind it is based on historic facts guided by expert opinion. 46. Even though the High Court issued notice in the writ petition to examine the case in so far as the Clauses 3 and 7 of the Regularisation Certificate, the learned senior counsel appearing on behalf of the respondent-owners contended that the High Court has examined this aspect and did not find any contravention of the aforesaid conditions or any illegality committed by the respondent-owners, therefore, this Court is required to examine only with regard to the aforesaid Clauses. This contention cannot be accepted by this Court particularly in view of the fact that there is blatant violation of the provisions of building bye-laws of MCD in using the building for the purpose other than the purpose for which it is constructed and further running the Pathological Lab or the Nursing Home is impermissible in the concerned building under the Master Plan 2001 or MPD 2021 and also under the provisions of the Water (Prevention and Control of Pollution) Act, 1986. 47. The running the Pathological Lab by the respondent-owners air, sound pollution is created rampantly on account of which the public resident health and peaceful has been adversely affected. Therefore, public interest is affected and there is violation of rule of law. Hence, we have examined this appeal on all aspects of the matter and on merits. This position of law is well settled in the catena of decisions of this Court. 48. Further, the respondent-owners to justify that the Pathological Lab does comply with the safety measures and environmental regulation as enforced by the Government from time to time, have submitted the National Accreditation Board for Testing and Calibration Laboratories (NABL) Certificate that has been granted to the Diagnostic Centre. On our examination of the said certificate, it is true that the Pathological Lab had been granted such NABL certification, however, the same was granted on 15.7.2001 and was valid only for three years from the date of issue of the certificate i.e. upto 14.07.2004. No record or document has been produced before us to prove that the Pathological Lab is still certified under the NABL certification. Hence, the above said justification and submission cannot be accepted by us. 49. Further, despite its notice by the MCD and DPCC, the illegal and unlawful activities of the respondent-owners have continued. Instead of taking prompt action as provided under the provisions of DDA Act, 1957 and the Environment Law referred to supra, the MCD proceeded to regularise the illegal and unlawful activities of the respondent-owners which has been carrying on since 1995 though it is a party to the writ petition proceedings initiated against them for running the Pathological Lab on the basement, ground floor, first floor and mezzanine floor of the building. Further, the DPCC not only regularised the commercial activities of the Pathological Lab run by the respondent-owners under the guise of a Nursing Home with retrospective effect but no prompt action was taken under the provisions of the Act to either stop it or to demolish the illegal structure. 50. Therefore, both the MCD and the DPCC abdicated their statutory duties in permitting the owners to carry on with the unlawful activities which inaction despite persistent request made by the appellant and the residents of the area did not yield any results. The counsel for the MCD made the statement before the courts below and even before this Court that there are no illegal activities on the part of the respondent-owners as they are supported by issuance of a Regularisation Certificate. In this regard as discussed previously in this judgement, the issuance of Regularisation Certificate to run the Pathological Lab in the building is totally impermissible in law even though the respondent-owners have placed reliance upon Mixed Use of the land in the area as per MPD 2021 referred to supra. 51. Further, it is necessary for us to make an observation here that the conduct of the MCD and the DPCC for their inaction is highly deplorable as they have miserably failed to discharge their statutory duties on account of which there has been a blatant violation of the rule of law and thereby a large number of residents of the locality are suffering on account of the unlawful activities of the respondent-owners, whose activities are patronised by both the authorities. 52. In view of the reasons recorded by us on the relevant aspects which have emerged from the pleadings, the questions which were raised and the rival legal contentions urged, we have to reject the both factual and legal pleas on behalf of the respondent-owners. We also do not accept the reliance placed by the learned senior counsel Mr. L. Nageshwar Rao upon the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 No.20 of 2011, which was valid up to 31st December, 2014 in justification of the inaction and the same is wholly untenable in law. The contentions urged by the learned senior counsel placing reliance upon the MPD 2021 which came into force w.e.f. 07.02.2007 that the respondent-owners are permitted to run the Nursing Home and carry on with the Diagnostic Centre in the building placing further reliance upon the various judgments of this Court referred to supra are all unfounded and the same cannot be accepted as they are misplaced. | 1[ds]26. In view of the above mentioned decisions of this Court, we hold that the findings and reasons recorded by both the learned single Judge and the Division Bench of the High Court that it is not public interest litigation is contrary to the law laid down by the Constitution Bench of this Court and other decisions referred to supra. The said reasoning is liable to be set aside, accordingly it is set aside27. Further, notice was issued by the High Court for limited purpose to examine the correctness of Clauses 3 and 7 of the Regularisation Certificate issued to the respondent-owners by the MCD in exercise of its authority to grant the same. However, the MCD has ignored the relevant aspects of the case of deviation of the then relevant Delhi Master Plan and unauthorised use of the basement, ground floor, mezzanine floor and the first floor of the concerned building28. In addition to this, the appellant being a resident of the second floor of the building, questioned the legality and validity of the Regularisation Certificate issued by the MCD under Clause 15.7.1 of the MPD-2021 approved by the Ministry of Urban Development, Government of India. In the second Writ Petition (c) 225 of 2008 filed by the appellant, the challenge was on the basis of the said certificate, for which the learned single Judge at the time of preliminary hearing of the said petition, has issued limited notice dated 11.1.2008 to the respondents with respect to Clause 3 of the Regularisation Certificate dealing with parking arrangements which would affect the neihbouring local residents of the colony and Clause 7 of the Regularisation Certificate which states that the respondent-owners shall ensure no nuisance or hardship would be created for the local residents in running the Nursing Home. However, contrary to this, they have been running a large Pathological Lab in the name of Nursing Home, named Dr. Dangs Diagnostic Centre in the basement, ground floor, mezzanine floor and the first floor of the building. The respondent-owners have refuted the same30. Further, we are satisfied that the issuance of the said Regularisation Certificate in favour of the respondent-owners of the Pathological Lab is in contravention of the building bye-laws and MPD-2021 referred to supra35. From a careful reading of the aforesaid extracted portions of the Master Plan 2021 and upon which reliance has been placed by Mr. H.P.Rawal, learned senior counsel on behalf of appellant and Mr. K. K. Venugopal and Ms. Indu Malhotra, learned senior counsel on behalf of the respondents, we have to hold that the grant of Regularisation Certificate under Mixed Use Regulations of the MPD 2021 giving retrospective effect enabling respondent-owners to run a Pathological Lab in the guise of a Nursing Home in the residential area falling in categories A and B is not sustainable in law and liable to be set aside. Further, in view of the facts of the case on hand, the relevant provisions of MPD 2021 and the evidence on record, we have to hold that the writ appeal filed by the appellant has been wrongly dismissed by the Division Bench of the High Court without examining the legality and validity of the issuance of the Regularisation Certificate on 11.06.2007 allegedly under the MPD 2021 which was still at the proposal stage at that time and the said Plan came into effect only on 07.02.2007, enabling the respondent-owners to use the premises for commercial activity which in our view is prohibited in the residential plot of the building under the various Clauses of the Master Plan 2021 extracted above36. Further, the said Regularisation Certificate granted by the MCD is contradictory to the Mixed Use Regulations under the Delhi Master Plan 2001 as well which was relevant and in force at the time of granting of the Regularisation Certificate to the respondent-owners. The provision for Mixed Use under the MPD 2001 clearly states that the area/street for Mixed Use activity should be identified by conducting a study of the impact on the traffic in that area/street in which such Mixed Use activity is likely to take place and also evaluate the environmental needs and impact on municipal services of the area if Mixed Use is allowed. In the present case, no report or document of evaluation or study conducted by the MCD has been brought to the notice of the courts below or this Court to establish and prove that the concerned building is an appropriate premises to allow a non-residential or Mixed Use activity in residential premises. The Mixed Use Regulations under MPD 2001 further states that if after the above said evaluation and study it is found that the Mixed Use activity in the street/area is feasible, then such activity shall be allowed only on the ground floor of the premises to the extent of 25% of the area or 50sqm, whichever is less and that such establishment can be run by the resident of the dwelling unit only. In the present case, the Pathological Lab is being run on the basement, ground floor, first floor and the mezzanine floor and the respondent-owners of the Pathological Lab are not the residents of the concerned building, thus it is a clear violation of the provisions for Mixed Use of residential premises under the Master Plan 2001. The Master Plan 2001 also provides that activities such as running of a nursing home should not be allowed, whereas in the Regularisation Certificate, it is clearly stated that permission is being granted for running of a nursing home38. On examining the Regularisation Certificate issued by the MCD, it is clear that the Regularisation Certificate is for running of a Pathological Lab whereas the conditions mentioned therein are directed towards running of a nursing home. Therefore, there is a lot of inconsistency within the Regularisation Certificate itself and due to the same, the Regularisation Certificate cannot be accepted by us as it is impermissible not only in law but also because the same was granted without seeking permission from the High Court during the pendency of the earlier Writ Petition No. 8808 of 2004 filed by the appellant41. As per the report of the DPCC, it is clear that chemical substances emitted from the Pathological Lab will be obnoxious, non-compatible, polluting and therefore, the same are not permissible under Clause 15.5 of the MPD 2021. Further, when the respondent-owners started the Diagnostic Centre, they employed about more than 50 people and installed 25 Air Conditioners, two diesel generator sets of 25 KVA and 40 KVA each in the set back area, along with kerosene oil tanks, gas cylinders and electric panels. Around 300 patients visit the centre per day and more than 100 cars are parked in the vicinity. All these factors lead to air pollution which is in contravention of the Air (Prevention and Control of Pollution) Act, 1981. At present, 80 employees are working and around 300 patients visit the Pathological Lab every day and vehicles are parked in and around the surrounding area which is also creating a parking problem to the residents of the area. The nuisance created by all these factors not only leads to air pollution but also noise pollution to a great extent. In this regard, it is necessary for us to examine the decision of this Court in the case of Noise Pollution (V) in RE ((2005) 5 SCC 733 ) at paras 11, 103 and 104 wherein it was held that noise generated upto unpleasant or obnoxious levels violates the rights of the people to a peaceful, comfortable and pollution-free life guaranteed by Article 21 of the Constitution of India45. It is an undisputed fact that the consent was not obtained by the respondent-owners from DPCC under Section 25 of the Water (Prevention and Control of Pollution) Act which states that no person shall without the previous consent of DPCC establish or take any steps to establish any industry, operation or process or any treatment and disposal system or any extension or addition thereto which is likely to discharge sewage or trade effluent into a stream or well or sewer or land. It is mandatory under the said provision to first obtain consent from DPCC and admittedly such consent has neither been obtained by the respondent-owners nor granted by the respondent No.5, DPCC, nor has the same been placed before the learned single Judge or the Division Bench or this Court. The running of the Pathological Lab for which the generator sets and other heavy equipments have been installed not only create sound pollution and air pollution but also the same is in contravention of the Water, Air and the Environment Protection Acts referred to supra. Therefore, in view of the relevant provisions of law referred to supra, the facts of the case and the evidence on record, we have to hold that the running of the Pathological Lab by the respondent-owners in the concerned building is in violation of law46. Even though the High Court issued notice in the writ petition to examine the case in so far as the Clauses 3 and 7 of the Regularisation Certificate, the learned senior counsel appearing on behalf of the respondent-owners contended that the High Court has examined this aspect and did not find any contravention of the aforesaid conditions or any illegality committed by the respondent-owners, therefore, this Court is required to examine only with regard to the aforesaid Clauses. This contention cannot be accepted by this Court particularly in view of the fact that there is blatant violation of the provisions of building bye-laws of MCD in using the building for the purpose other than the purpose for which it is constructed and further running the Pathological Lab or the Nursing Home is impermissible in the concerned building under the Master Plan 2001 or MPD 2021 and also under the provisions of the Water (Prevention and Control of Pollution) Act, 198650. Therefore, both the MCD and the DPCC abdicated their statutory duties in permitting the owners to carry on with the unlawful activities which inaction despite persistent request made by the appellant and the residents of the area did not yield any results. The counsel for the MCD made the statement before the courts below and even before this Court that there are no illegal activities on the part of the respondent-owners as they are supported by issuance of a Regularisation Certificate. In this regard as discussed previously in this judgement, the issuance of Regularisation Certificate to run the Pathological Lab in the building is totally impermissible in law even though the respondent-owners have placed reliance upon Mixed Use of the land in the area as per MPD 2021 referred to supra51. Further, it is necessary for us to make an observation here that the conduct of the MCD and the DPCC for their inaction is highly deplorable as they have miserably failed to discharge their statutory duties on account of which there has been a blatant violation of the rule of law and thereby a large number of residents of the locality are suffering on account of the unlawful activities of the respondent-owners, whose activities are patronised by both the authorities52. In view of the reasons recorded by us on the relevant aspects which have emerged from the pleadings, the questions which were raised and the rival legal contentions urged, we have to reject the both factual and legal pleas on behalf of the respondent-owners. We also do not accept the reliance placed by the learned senior counsel Mr. L. Nageshwar Rao upon the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 No.20 of 2011, which was valid up to 31st December, 2014 in justification of the inaction and the same is wholly untenable in law. The contentions urged by the learned senior counsel placing reliance upon the MPD 2021 which came into force w.e.f. 07.02.2007 that the respondent-owners are permitted to run the Nursing Home and carry on with the Diagnostic Centre in the building placing further reliance upon the various judgments of this Court referred to supra are all unfounded and the same cannot be accepted as they are misplaced. | 1 | 11,142 | 2,167 | ### 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:
within its ambit hygienic atmosphere and ecological balance. It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. There is constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment. Dealing with the municipal laws providing for power of demolition, it was observed that while interpreting municipal legislation framed in public interest, a strict constitutional approach must be adopted. A perusal of the master plan shows that the public purpose behind it is based on historic facts guided by expert opinion. 46. Even though the High Court issued notice in the writ petition to examine the case in so far as the Clauses 3 and 7 of the Regularisation Certificate, the learned senior counsel appearing on behalf of the respondent-owners contended that the High Court has examined this aspect and did not find any contravention of the aforesaid conditions or any illegality committed by the respondent-owners, therefore, this Court is required to examine only with regard to the aforesaid Clauses. This contention cannot be accepted by this Court particularly in view of the fact that there is blatant violation of the provisions of building bye-laws of MCD in using the building for the purpose other than the purpose for which it is constructed and further running the Pathological Lab or the Nursing Home is impermissible in the concerned building under the Master Plan 2001 or MPD 2021 and also under the provisions of the Water (Prevention and Control of Pollution) Act, 1986. 47. The running the Pathological Lab by the respondent-owners air, sound pollution is created rampantly on account of which the public resident health and peaceful has been adversely affected. Therefore, public interest is affected and there is violation of rule of law. Hence, we have examined this appeal on all aspects of the matter and on merits. This position of law is well settled in the catena of decisions of this Court. 48. Further, the respondent-owners to justify that the Pathological Lab does comply with the safety measures and environmental regulation as enforced by the Government from time to time, have submitted the National Accreditation Board for Testing and Calibration Laboratories (NABL) Certificate that has been granted to the Diagnostic Centre. On our examination of the said certificate, it is true that the Pathological Lab had been granted such NABL certification, however, the same was granted on 15.7.2001 and was valid only for three years from the date of issue of the certificate i.e. upto 14.07.2004. No record or document has been produced before us to prove that the Pathological Lab is still certified under the NABL certification. Hence, the above said justification and submission cannot be accepted by us. 49. Further, despite its notice by the MCD and DPCC, the illegal and unlawful activities of the respondent-owners have continued. Instead of taking prompt action as provided under the provisions of DDA Act, 1957 and the Environment Law referred to supra, the MCD proceeded to regularise the illegal and unlawful activities of the respondent-owners which has been carrying on since 1995 though it is a party to the writ petition proceedings initiated against them for running the Pathological Lab on the basement, ground floor, first floor and mezzanine floor of the building. Further, the DPCC not only regularised the commercial activities of the Pathological Lab run by the respondent-owners under the guise of a Nursing Home with retrospective effect but no prompt action was taken under the provisions of the Act to either stop it or to demolish the illegal structure. 50. Therefore, both the MCD and the DPCC abdicated their statutory duties in permitting the owners to carry on with the unlawful activities which inaction despite persistent request made by the appellant and the residents of the area did not yield any results. The counsel for the MCD made the statement before the courts below and even before this Court that there are no illegal activities on the part of the respondent-owners as they are supported by issuance of a Regularisation Certificate. In this regard as discussed previously in this judgement, the issuance of Regularisation Certificate to run the Pathological Lab in the building is totally impermissible in law even though the respondent-owners have placed reliance upon Mixed Use of the land in the area as per MPD 2021 referred to supra. 51. Further, it is necessary for us to make an observation here that the conduct of the MCD and the DPCC for their inaction is highly deplorable as they have miserably failed to discharge their statutory duties on account of which there has been a blatant violation of the rule of law and thereby a large number of residents of the locality are suffering on account of the unlawful activities of the respondent-owners, whose activities are patronised by both the authorities. 52. In view of the reasons recorded by us on the relevant aspects which have emerged from the pleadings, the questions which were raised and the rival legal contentions urged, we have to reject the both factual and legal pleas on behalf of the respondent-owners. We also do not accept the reliance placed by the learned senior counsel Mr. L. Nageshwar Rao upon the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 No.20 of 2011, which was valid up to 31st December, 2014 in justification of the inaction and the same is wholly untenable in law. The contentions urged by the learned senior counsel placing reliance upon the MPD 2021 which came into force w.e.f. 07.02.2007 that the respondent-owners are permitted to run the Nursing Home and carry on with the Diagnostic Centre in the building placing further reliance upon the various judgments of this Court referred to supra are all unfounded and the same cannot be accepted as they are misplaced.
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it is clear that chemical substances emitted from the Pathological Lab will be obnoxious, non-compatible, polluting and therefore, the same are not permissible under Clause 15.5 of the MPD 2021. Further, when the respondent-owners started the Diagnostic Centre, they employed about more than 50 people and installed 25 Air Conditioners, two diesel generator sets of 25 KVA and 40 KVA each in the set back area, along with kerosene oil tanks, gas cylinders and electric panels. Around 300 patients visit the centre per day and more than 100 cars are parked in the vicinity. All these factors lead to air pollution which is in contravention of the Air (Prevention and Control of Pollution) Act, 1981. At present, 80 employees are working and around 300 patients visit the Pathological Lab every day and vehicles are parked in and around the surrounding area which is also creating a parking problem to the residents of the area. The nuisance created by all these factors not only leads to air pollution but also noise pollution to a great extent. In this regard, it is necessary for us to examine the decision of this Court in the case of Noise Pollution (V) in RE ((2005) 5 SCC 733 ) at paras 11, 103 and 104 wherein it was held that noise generated upto unpleasant or obnoxious levels violates the rights of the people to a peaceful, comfortable and pollution-free life guaranteed by Article 21 of the Constitution of India45. It is an undisputed fact that the consent was not obtained by the respondent-owners from DPCC under Section 25 of the Water (Prevention and Control of Pollution) Act which states that no person shall without the previous consent of DPCC establish or take any steps to establish any industry, operation or process or any treatment and disposal system or any extension or addition thereto which is likely to discharge sewage or trade effluent into a stream or well or sewer or land. It is mandatory under the said provision to first obtain consent from DPCC and admittedly such consent has neither been obtained by the respondent-owners nor granted by the respondent No.5, DPCC, nor has the same been placed before the learned single Judge or the Division Bench or this Court. The running of the Pathological Lab for which the generator sets and other heavy equipments have been installed not only create sound pollution and air pollution but also the same is in contravention of the Water, Air and the Environment Protection Acts referred to supra. Therefore, in view of the relevant provisions of law referred to supra, the facts of the case and the evidence on record, we have to hold that the running of the Pathological Lab by the respondent-owners in the concerned building is in violation of law46. Even though the High Court issued notice in the writ petition to examine the case in so far as the Clauses 3 and 7 of the Regularisation Certificate, the learned senior counsel appearing on behalf of the respondent-owners contended that the High Court has examined this aspect and did not find any contravention of the aforesaid conditions or any illegality committed by the respondent-owners, therefore, this Court is required to examine only with regard to the aforesaid Clauses. This contention cannot be accepted by this Court particularly in view of the fact that there is blatant violation of the provisions of building bye-laws of MCD in using the building for the purpose other than the purpose for which it is constructed and further running the Pathological Lab or the Nursing Home is impermissible in the concerned building under the Master Plan 2001 or MPD 2021 and also under the provisions of the Water (Prevention and Control of Pollution) Act, 198650. Therefore, both the MCD and the DPCC abdicated their statutory duties in permitting the owners to carry on with the unlawful activities which inaction despite persistent request made by the appellant and the residents of the area did not yield any results. The counsel for the MCD made the statement before the courts below and even before this Court that there are no illegal activities on the part of the respondent-owners as they are supported by issuance of a Regularisation Certificate. In this regard as discussed previously in this judgement, the issuance of Regularisation Certificate to run the Pathological Lab in the building is totally impermissible in law even though the respondent-owners have placed reliance upon Mixed Use of the land in the area as per MPD 2021 referred to supra51. Further, it is necessary for us to make an observation here that the conduct of the MCD and the DPCC for their inaction is highly deplorable as they have miserably failed to discharge their statutory duties on account of which there has been a blatant violation of the rule of law and thereby a large number of residents of the locality are suffering on account of the unlawful activities of the respondent-owners, whose activities are patronised by both the authorities52. In view of the reasons recorded by us on the relevant aspects which have emerged from the pleadings, the questions which were raised and the rival legal contentions urged, we have to reject the both factual and legal pleas on behalf of the respondent-owners. We also do not accept the reliance placed by the learned senior counsel Mr. L. Nageshwar Rao upon the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 No.20 of 2011, which was valid up to 31st December, 2014 in justification of the inaction and the same is wholly untenable in law. The contentions urged by the learned senior counsel placing reliance upon the MPD 2021 which came into force w.e.f. 07.02.2007 that the respondent-owners are permitted to run the Nursing Home and carry on with the Diagnostic Centre in the building placing further reliance upon the various judgments of this Court referred to supra are all unfounded and the same cannot be accepted as they are misplaced.
|
COMMISSIONER OF CUSTOMS, BANGALORE I Vs. M/S MOTOROLA INDIA LTD | se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance. Alternatively, the question raised or arising may require interpretation of the provisions of the Constitution. Such interpreta- tion may involve a fresh or a relook or even an attempt to understand the true and correct purport of a laid down meaning of the constitutional provisions that may come into focus in a given case. It is only such questions of importance, alone, that are required to be decided by the Supreme Court and by the very nature of the questions raised or arising, the same necessarily have to involve issues of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. This is the limitation that has to be understood to be inbuilt in Section 130-E(b) of the Act which, in our con- sidered view, would also be consistent with the role and jurisdiction of the Supreme Court of India as envisaged under the Constitution. Viewed from the aforesaid per- spective, the jurisdiction of the Supreme Court under Section 130-E(b) of the Act or the pari materia provi- sions of any other statute would be in harmony with those contained in Chapter IV of Part V of the Constitution.? 14. It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. 15. This Court in the case of Steel Authority (supra), after considering the earlier judgments of this Court, carved out certain conditions which are required to be satisfied before admitting an appeal under Section 130E of the Customs Act. It will be apposite to refer to paragraphs 21 and 22 of the said judgment. Paragraphs 21 and 22 read thus: "21. On the basis of the discussion that has preceded, it must therefore be held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied:(i) The question raised or arising must have a direct and/or proximate nexus to the question of determi- nation of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130-E(b) of the Act.(ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessi- tating a resolution.(iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.(iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occa- sioning a failure of justice."22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the pri- mary question indicated at the outset of the present or- der, namely, whether this appeal deserves to be admit- ted. 16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to this court. "(i) determination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for." 17. Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act. | 1[ds]9. Upon a conjoint reading of the aforesaid provisions, it could thus be seen that an appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The only exception carved out is that an appeal shall lie before this Court and shall not lie before the High Court against the order relating, amongst other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment.10. It could thus clearly be seen that, only if any question having relation to the rate of duty is involved in an appeal or if it relates to value of goods for the purpose of assessment, the appeal would lie to this Court and in all other cases it would lie before the High Court.It could thus clearly be seen that, this Court, while considering the provisions of Section 130 and Section 130E of the Customs Act, has held that where an appeal involves determination of any question that has relation to customs duty for the purpose of assessment or where an appeal involves determination of any question that has relation to the value of goods for the purposes of assessment, such cases will have to be treated separately and have to be given special treatment.It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to thisdetermination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for.Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act. | 1 | 4,165 | 763 | ### 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:
se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance. Alternatively, the question raised or arising may require interpretation of the provisions of the Constitution. Such interpreta- tion may involve a fresh or a relook or even an attempt to understand the true and correct purport of a laid down meaning of the constitutional provisions that may come into focus in a given case. It is only such questions of importance, alone, that are required to be decided by the Supreme Court and by the very nature of the questions raised or arising, the same necessarily have to involve issues of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. This is the limitation that has to be understood to be inbuilt in Section 130-E(b) of the Act which, in our con- sidered view, would also be consistent with the role and jurisdiction of the Supreme Court of India as envisaged under the Constitution. Viewed from the aforesaid per- spective, the jurisdiction of the Supreme Court under Section 130-E(b) of the Act or the pari materia provi- sions of any other statute would be in harmony with those contained in Chapter IV of Part V of the Constitution.? 14. It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. 15. This Court in the case of Steel Authority (supra), after considering the earlier judgments of this Court, carved out certain conditions which are required to be satisfied before admitting an appeal under Section 130E of the Customs Act. It will be apposite to refer to paragraphs 21 and 22 of the said judgment. Paragraphs 21 and 22 read thus: "21. On the basis of the discussion that has preceded, it must therefore be held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied:(i) The question raised or arising must have a direct and/or proximate nexus to the question of determi- nation of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130-E(b) of the Act.(ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessi- tating a resolution.(iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.(iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occa- sioning a failure of justice."22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the pri- mary question indicated at the outset of the present or- der, namely, whether this appeal deserves to be admit- ted. 16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to this court. "(i) determination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for." 17. Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act.
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1
### Explanation:
9. Upon a conjoint reading of the aforesaid provisions, it could thus be seen that an appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The only exception carved out is that an appeal shall lie before this Court and shall not lie before the High Court against the order relating, amongst other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment.10. It could thus clearly be seen that, only if any question having relation to the rate of duty is involved in an appeal or if it relates to value of goods for the purpose of assessment, the appeal would lie to this Court and in all other cases it would lie before the High Court.It could thus clearly be seen that, this Court, while considering the provisions of Section 130 and Section 130E of the Customs Act, has held that where an appeal involves determination of any question that has relation to customs duty for the purpose of assessment or where an appeal involves determination of any question that has relation to the value of goods for the purposes of assessment, such cases will have to be treated separately and have to be given special treatment.It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to thisdetermination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for.Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act.
|
Burmah Shell Oil Storage and Distributing Company of India Limited Vs. Commissioner of Income Tax | been indicated by the High Court that decision in Indian Overseas Bank Ltd. v. CIT1 was concerned with proviso (b) to Section 10(2)(vi - b) of the Income Tax Act, 1922 which is in pari materia with Section 34(3)(a) of Income Tax Act, 1961. The High Court has held that (a) excess amount in the earlier years development rebate reserve account is not freezed by Section 34(3)(a) of the Act in view of its clear language; (b) the directors of a company are entitled to free the excess amount and after doing so, the company by debiting it in the profit and loss account and by crediting it to the development rebate reserve account can make up the shortfall of the accounting year in which the development rebate is actually claimed or allowed and (c) except in these cases in which the Central Board of Revenue or the Central Board of Direct Taxes have relaxed the provisions of Section 34(3)(a) it must be complied with in order to earn the development rebate claimed in a particular year. The High Court has held that the appellant-Company did not transfer the excess amounts of the earlier years in the accounting year for the purpose of making up the corresponding reserve and it is an admitted fact that the appellant-Company did not comply with the provisions of Section 34(3)(a) of the Act.12. Mr Rajappa has next urged that so far as the appellant- Company is concerned, the said cylinders must be held to be "actually used up". The question as to whether or not the packages are "actually used up" needs to be determined not in abstract term but with reference to the actual usefulness to the assessee. Mr Rajappa has also contended that the expression "actually used up" in item M(2)(2)(d)(i) of Part 1 of the Depreciation Schedule Appendix 1 of Rule 5 of the Income Tax Rules, 1962 includes both total and partial us e up. Mr Rajappa has submitted after the sale of the cylinders to the Refinery, the cylinders did not belong to the appellant-Company and they lost their usefulness to the appellant-Company and it is immaterial if the very same cylinder s were used by the Refinery to fill up with gases and sending the same to the appellant-Company for distribution to the consumers. It may be noted that similar contentions were also made before the High Court but the same were rejected by holding inter alia that expression "used up" means "exhausted by use, rendered unserviceable". In view of the expression "actually used up", the case of "partial use up" was not acceptable. The High Court has also held that the words "actually used up" qualifies the word "packages". Hence the expression is not required to be interpreted with reference to the user by the assessee. It has been indicated by the High Court that the cylinders in fact, after the sale, were put to use by the Refinery and such cylinders filled up with gas were sent to the appellant-Company which in its turn distributed the same to the consumers. Since the cylinders were actually used up in the trade both by the Refinery and by the appellant- Company after the sale, it cannot be held that the cylinders were "actually used up". Hence, the claim for deduction of Rs 27, 43, 807 as a revenue expenditure under Rule 5 of the Income Tax Rules, 1962 read with item M(2)(2)(d)(i) of Part 1 of Appendix 1 to the rules was inadmissible and reference on this question must be answered against the assessee. 13.Mr J. Ramamurti learned Senior Advocate appearing for the respondent has submitted that the Appellate Tribunal has found as a fact that the gas cylinders are returnable packages. Hence, the schedule entry M(2)(2)(d)(i) of Appendix 1 is applicable. Such schedule refers only to cost and not loss. As the cylinders were not "actually used up" for reasons indicated by the High Court, the assessee was not en titled to any benefit of this entry. Mr Ramamurti has also urged that where entry M(2)(2)(d)(i) of Appendix 1 to the rules is applicable, Section 32(1)(iii) of the Income Tax Act does not apply. Even assuming that Section 32(1)(iii) applies, the Tribunal has not found any fact relating to written down value. Written down value being a question of fact must be found on consideration of relevant materials. The Tribunal has not dealt with this issue and the question therefore did not arise for consideration. Mr Ramamurti has also submitted that in any event, as rightly pointed out by the High Court, the assessee is not entitled to claim any benefit under Section 32(1)(iii) as the assessee has not written off the deficiency in its books of account. Such writing down is a condition which is required to be satisfied. Mr Ramamurti in this connection has referred to a decision of Madras High Court in S. Rajagopala Vandayar v. CIT2 which according to Mr Ramamurti has taken into consideration earlier decisions including the decision of this Court in CIT v. National Syndicate3 and Boards circulars. Mr Ramamurti has also submitted that amendment of Section 34(3)(a) regarding development rebate reserves being effective from April 1, 1962, the assessees claim for such rebate was not at all entertainable. He has therefore, submitted that there is no occasion to interfere with the decision of the High Court and the appeal should be dismissed. 14. After giving our careful consideration to the matter, we approve the decision of the High Court which has already been indicated in some detail. In our view, the cylinders in question did not satisfy a case of returnable packages "actually used up". It also appears to us that the High Court has held, for good reasons, that the assessee could not claim any deduction under Section 32(1)(iii) of the Act and a claim on account of development reserve under Section 34(3)(a) of the Act was also inadmissible for the reasons indicated by the High Court. 15. | 0[ds]14. After giving our careful consideration to the matter, we approve the decision of the High Court which has already been indicated in some detail. In our view, the cylinders in question did not satisfy a case of returnable packages "actually used up". It also appears to us that the High Court has held, for good reasons, that the assessee could not claim any deduction under Section 32(1)(iii) of the Act and a claim on account of development reserve under Section 34(3)(a) of the Act was also inadmissible for the reasons indicated by the High Court. | 0 | 3,411 | 122 | ### Instruction:
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been indicated by the High Court that decision in Indian Overseas Bank Ltd. v. CIT1 was concerned with proviso (b) to Section 10(2)(vi - b) of the Income Tax Act, 1922 which is in pari materia with Section 34(3)(a) of Income Tax Act, 1961. The High Court has held that (a) excess amount in the earlier years development rebate reserve account is not freezed by Section 34(3)(a) of the Act in view of its clear language; (b) the directors of a company are entitled to free the excess amount and after doing so, the company by debiting it in the profit and loss account and by crediting it to the development rebate reserve account can make up the shortfall of the accounting year in which the development rebate is actually claimed or allowed and (c) except in these cases in which the Central Board of Revenue or the Central Board of Direct Taxes have relaxed the provisions of Section 34(3)(a) it must be complied with in order to earn the development rebate claimed in a particular year. The High Court has held that the appellant-Company did not transfer the excess amounts of the earlier years in the accounting year for the purpose of making up the corresponding reserve and it is an admitted fact that the appellant-Company did not comply with the provisions of Section 34(3)(a) of the Act.12. Mr Rajappa has next urged that so far as the appellant- Company is concerned, the said cylinders must be held to be "actually used up". The question as to whether or not the packages are "actually used up" needs to be determined not in abstract term but with reference to the actual usefulness to the assessee. Mr Rajappa has also contended that the expression "actually used up" in item M(2)(2)(d)(i) of Part 1 of the Depreciation Schedule Appendix 1 of Rule 5 of the Income Tax Rules, 1962 includes both total and partial us e up. Mr Rajappa has submitted after the sale of the cylinders to the Refinery, the cylinders did not belong to the appellant-Company and they lost their usefulness to the appellant-Company and it is immaterial if the very same cylinder s were used by the Refinery to fill up with gases and sending the same to the appellant-Company for distribution to the consumers. It may be noted that similar contentions were also made before the High Court but the same were rejected by holding inter alia that expression "used up" means "exhausted by use, rendered unserviceable". In view of the expression "actually used up", the case of "partial use up" was not acceptable. The High Court has also held that the words "actually used up" qualifies the word "packages". Hence the expression is not required to be interpreted with reference to the user by the assessee. It has been indicated by the High Court that the cylinders in fact, after the sale, were put to use by the Refinery and such cylinders filled up with gas were sent to the appellant-Company which in its turn distributed the same to the consumers. Since the cylinders were actually used up in the trade both by the Refinery and by the appellant- Company after the sale, it cannot be held that the cylinders were "actually used up". Hence, the claim for deduction of Rs 27, 43, 807 as a revenue expenditure under Rule 5 of the Income Tax Rules, 1962 read with item M(2)(2)(d)(i) of Part 1 of Appendix 1 to the rules was inadmissible and reference on this question must be answered against the assessee. 13.Mr J. Ramamurti learned Senior Advocate appearing for the respondent has submitted that the Appellate Tribunal has found as a fact that the gas cylinders are returnable packages. Hence, the schedule entry M(2)(2)(d)(i) of Appendix 1 is applicable. Such schedule refers only to cost and not loss. As the cylinders were not "actually used up" for reasons indicated by the High Court, the assessee was not en titled to any benefit of this entry. Mr Ramamurti has also urged that where entry M(2)(2)(d)(i) of Appendix 1 to the rules is applicable, Section 32(1)(iii) of the Income Tax Act does not apply. Even assuming that Section 32(1)(iii) applies, the Tribunal has not found any fact relating to written down value. Written down value being a question of fact must be found on consideration of relevant materials. The Tribunal has not dealt with this issue and the question therefore did not arise for consideration. Mr Ramamurti has also submitted that in any event, as rightly pointed out by the High Court, the assessee is not entitled to claim any benefit under Section 32(1)(iii) as the assessee has not written off the deficiency in its books of account. Such writing down is a condition which is required to be satisfied. Mr Ramamurti in this connection has referred to a decision of Madras High Court in S. Rajagopala Vandayar v. CIT2 which according to Mr Ramamurti has taken into consideration earlier decisions including the decision of this Court in CIT v. National Syndicate3 and Boards circulars. Mr Ramamurti has also submitted that amendment of Section 34(3)(a) regarding development rebate reserves being effective from April 1, 1962, the assessees claim for such rebate was not at all entertainable. He has therefore, submitted that there is no occasion to interfere with the decision of the High Court and the appeal should be dismissed. 14. After giving our careful consideration to the matter, we approve the decision of the High Court which has already been indicated in some detail. In our view, the cylinders in question did not satisfy a case of returnable packages "actually used up". It also appears to us that the High Court has held, for good reasons, that the assessee could not claim any deduction under Section 32(1)(iii) of the Act and a claim on account of development reserve under Section 34(3)(a) of the Act was also inadmissible for the reasons indicated by the High Court. 15.
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0
### Explanation:
14. After giving our careful consideration to the matter, we approve the decision of the High Court which has already been indicated in some detail. In our view, the cylinders in question did not satisfy a case of returnable packages "actually used up". It also appears to us that the High Court has held, for good reasons, that the assessee could not claim any deduction under Section 32(1)(iii) of the Act and a claim on account of development reserve under Section 34(3)(a) of the Act was also inadmissible for the reasons indicated by the High Court.
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SHAILNDRA KUMAR JAIN Vs. MAYA PRAKASH JAIN | filed written statement admitting the claim of the plaintiff. The counsel for the defendants has also made a statement in the Court that decree be passed as prayed for. In the result, I pass a decree for declaration to the effect that the plaintiff is the owner and in possession of the properties mentioned in clause (a) of para No.11 of the plaint. The parties be bear their own costs of the suit. Pronounced. 5. Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit No.464 of 2006 in the Court of Civil Judge (Senior Division), Meerut, submitting inter alia that after the aforesaid decree dated 23.02.1966, there was a further family settlement arrived at between all sons of said Amba Prasad Jain on 05.11.2005 regarding division of house and other joint properties. This settlement was said to have been arrived at in the presence of Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. Padamkanta Jain and Shri Akhilesh Jain. It was claimed that the parties were bound by said settlement dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was exclusive owner of certain properties mentioned in the schedule to the plaint in said suit of 2006. 6. An application Ex.92 Ka was preferred by original Defendant No.8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants in aforesaid Suit No.464 of 2006. It was submitted that after the death of her parents i.e. Amba Prasad Jain, and Smt. Devi Jain, the applicant was entitled to the property which was left behind by the parents and the applicant being a necessary party she ought to be impleaded as one of the defendants in Suit No.464 of 2006. During the pendency of the application, Smt. Srikanta Jain expired and the appellants, i.e. her legal heirs were substituted in her place. 7. The application was dismissed by the trial court vide order dated 10.03.2016. It was observed that the applicant Smt. Srikanta Jain had knowledge of 1966 Suit but no steps were taken to appeal against the decree passed on the basis of oral family partition between her parents and brothers and as such her application was required to be dismissed. 8. The appellants being aggrieved, preferred Civil Revision No.156 of 2016 in the High Court, which revision was dismissed by the High Court vide order dated 19.07.2018. It was observed as under: Since, as noticed above, the suit where from this revision arises basically seeks implementation of an earlier decree in Suit No.92 of 1966, which determined the shares of the parties thereto, upon acceptance of an alleged oral partition between them, and since admittedly the parties to the suit are only those whose shares are to be separated, the Court below has committed no illegality in rejecting the impleadment application, on a finding that revisionist are not necessary parties In the proceedings. 9. We heard Shri D.K. Garg, learned Advocate for the appellants and Shri Jitender Mohan Sharma, learned Senior Advocate for the respondents. 10. The earlier suit was filed by a son against his parents, three brothers and four sisters. In terms of compromise entered into between the Plaintiff, the parents and three brothers, the properties were mutually divided amongst said six persons. Since Amba Prasad Jain and Smt. Devi Jain were alive, the proper parties in an action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons. The daughters in the family, namely, Defendant Nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned. However, it is well settled See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14 that if a partition takes place between her husband and sons, a wife is entitled (except in Southern India) to receive a share equal to that of a son and enjoy that share separately even from her husband . Therefore, if the compromise was entered into between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about it. In the circumstances, the absence of any challenge to the decree in 1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jain could not have challenged the decree in 1966 Suit. 11. On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. It is precisely on this count that the applicant Srikanta Jain claims to be entitled to have a share in the properties which were allocated to Amba Prasad Jain and Smt. Devi Jain. The partition effected pursuant to decree in 1966 Suit cannot, in any way, disentitle her from claiming a share in the properties of her father and mother. In the aforesaid premises, Srikanta Jain was definitely a necessary and proper party to be impleaded in the subsequent suit which was filed by Maya Prakash Jain. 12. It was, however, contended by Mr. Jitender Mohan Sharma, learned Senior Advocate appearing for Respondent No.1 that the father and the mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills under which their properties had devolved upon the sons exclusively. The due execution of the Wills is yet to the proved by the Respondents. If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs. The daughters are, therefore, necessary parties to the proceedings. In the present case, if the Wills so propounded are proved, they will chart a course of succession other than the normal mode of succession and to the prejudice of the daughters. In such an action or proceeding, the daughters being Class I heirs are necessary and proper parties and are required to be impleaded. | 0[ds]10. The earlier suit was filed by a son against his parents, three brothers and four sisters. In terms of compromise entered into between the Plaintiff, the parents and three brothers, the properties were mutually divided amongst said six persons. Since Amba Prasad Jain and Smt. Devi Jain were alive, the proper parties in an action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons. The daughters in the family, namely, Defendant Nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned. However, it is well settled See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14 that if a partition takes place between her husband and sons, a wife is entitled (except in Southern India) to receive a share equal to that of a son and enjoy that share separately even from her. Therefore, if the compromise was entered into between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about it. In the circumstances, the absence of any challenge to the decree in 1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jain could not have challenged the decree in 1966 Suit11. On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. It is precisely on this count that the applicant Srikanta Jain claims to be entitled to have a share in the properties which were allocated to Amba Prasad Jain and Smt. Devi Jain. The partition effected pursuant to decree in 1966 Suit cannot, in any way, disentitle her from claiming a share in the properties of her father and mother. In the aforesaid premises, Srikanta Jain was definitely a necessary and proper party to be impleaded in the subsequent suit which was filed by Maya Prakash Jain12. It was, however, contended by Mr. Jitender Mohan Sharma, learned Senior Advocate appearing for Respondent No.1 that the father and the mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills under which their properties had devolved upon the sons exclusively.The due execution of the Wills is yet to the proved by the Respondents. If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs. The daughters are, therefore, necessary parties to the proceedings. In the present case, if the Wills so propounded are proved, they will chart a course of succession other than the normal mode of succession and to the prejudice of the daughters. In such an action or proceeding, the daughters being Class I heirs are necessary and proper parties and are required to be impleaded. | 0 | 1,347 | 560 | ### Instruction:
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filed written statement admitting the claim of the plaintiff. The counsel for the defendants has also made a statement in the Court that decree be passed as prayed for. In the result, I pass a decree for declaration to the effect that the plaintiff is the owner and in possession of the properties mentioned in clause (a) of para No.11 of the plaint. The parties be bear their own costs of the suit. Pronounced. 5. Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit No.464 of 2006 in the Court of Civil Judge (Senior Division), Meerut, submitting inter alia that after the aforesaid decree dated 23.02.1966, there was a further family settlement arrived at between all sons of said Amba Prasad Jain on 05.11.2005 regarding division of house and other joint properties. This settlement was said to have been arrived at in the presence of Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. Padamkanta Jain and Shri Akhilesh Jain. It was claimed that the parties were bound by said settlement dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was exclusive owner of certain properties mentioned in the schedule to the plaint in said suit of 2006. 6. An application Ex.92 Ka was preferred by original Defendant No.8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants in aforesaid Suit No.464 of 2006. It was submitted that after the death of her parents i.e. Amba Prasad Jain, and Smt. Devi Jain, the applicant was entitled to the property which was left behind by the parents and the applicant being a necessary party she ought to be impleaded as one of the defendants in Suit No.464 of 2006. During the pendency of the application, Smt. Srikanta Jain expired and the appellants, i.e. her legal heirs were substituted in her place. 7. The application was dismissed by the trial court vide order dated 10.03.2016. It was observed that the applicant Smt. Srikanta Jain had knowledge of 1966 Suit but no steps were taken to appeal against the decree passed on the basis of oral family partition between her parents and brothers and as such her application was required to be dismissed. 8. The appellants being aggrieved, preferred Civil Revision No.156 of 2016 in the High Court, which revision was dismissed by the High Court vide order dated 19.07.2018. It was observed as under: Since, as noticed above, the suit where from this revision arises basically seeks implementation of an earlier decree in Suit No.92 of 1966, which determined the shares of the parties thereto, upon acceptance of an alleged oral partition between them, and since admittedly the parties to the suit are only those whose shares are to be separated, the Court below has committed no illegality in rejecting the impleadment application, on a finding that revisionist are not necessary parties In the proceedings. 9. We heard Shri D.K. Garg, learned Advocate for the appellants and Shri Jitender Mohan Sharma, learned Senior Advocate for the respondents. 10. The earlier suit was filed by a son against his parents, three brothers and four sisters. In terms of compromise entered into between the Plaintiff, the parents and three brothers, the properties were mutually divided amongst said six persons. Since Amba Prasad Jain and Smt. Devi Jain were alive, the proper parties in an action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons. The daughters in the family, namely, Defendant Nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned. However, it is well settled See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14 that if a partition takes place between her husband and sons, a wife is entitled (except in Southern India) to receive a share equal to that of a son and enjoy that share separately even from her husband . Therefore, if the compromise was entered into between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about it. In the circumstances, the absence of any challenge to the decree in 1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jain could not have challenged the decree in 1966 Suit. 11. On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. It is precisely on this count that the applicant Srikanta Jain claims to be entitled to have a share in the properties which were allocated to Amba Prasad Jain and Smt. Devi Jain. The partition effected pursuant to decree in 1966 Suit cannot, in any way, disentitle her from claiming a share in the properties of her father and mother. In the aforesaid premises, Srikanta Jain was definitely a necessary and proper party to be impleaded in the subsequent suit which was filed by Maya Prakash Jain. 12. It was, however, contended by Mr. Jitender Mohan Sharma, learned Senior Advocate appearing for Respondent No.1 that the father and the mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills under which their properties had devolved upon the sons exclusively. The due execution of the Wills is yet to the proved by the Respondents. If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs. The daughters are, therefore, necessary parties to the proceedings. In the present case, if the Wills so propounded are proved, they will chart a course of succession other than the normal mode of succession and to the prejudice of the daughters. In such an action or proceeding, the daughters being Class I heirs are necessary and proper parties and are required to be impleaded.
### Response:
0
### Explanation:
10. The earlier suit was filed by a son against his parents, three brothers and four sisters. In terms of compromise entered into between the Plaintiff, the parents and three brothers, the properties were mutually divided amongst said six persons. Since Amba Prasad Jain and Smt. Devi Jain were alive, the proper parties in an action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons. The daughters in the family, namely, Defendant Nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned. However, it is well settled See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14 that if a partition takes place between her husband and sons, a wife is entitled (except in Southern India) to receive a share equal to that of a son and enjoy that share separately even from her. Therefore, if the compromise was entered into between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about it. In the circumstances, the absence of any challenge to the decree in 1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jain could not have challenged the decree in 1966 Suit11. On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. It is precisely on this count that the applicant Srikanta Jain claims to be entitled to have a share in the properties which were allocated to Amba Prasad Jain and Smt. Devi Jain. The partition effected pursuant to decree in 1966 Suit cannot, in any way, disentitle her from claiming a share in the properties of her father and mother. In the aforesaid premises, Srikanta Jain was definitely a necessary and proper party to be impleaded in the subsequent suit which was filed by Maya Prakash Jain12. It was, however, contended by Mr. Jitender Mohan Sharma, learned Senior Advocate appearing for Respondent No.1 that the father and the mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills under which their properties had devolved upon the sons exclusively.The due execution of the Wills is yet to the proved by the Respondents. If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs. The daughters are, therefore, necessary parties to the proceedings. In the present case, if the Wills so propounded are proved, they will chart a course of succession other than the normal mode of succession and to the prejudice of the daughters. In such an action or proceeding, the daughters being Class I heirs are necessary and proper parties and are required to be impleaded.
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Krishna Flour Mills Vs. Commissioner of Income Tax, Bangalore | on the footing that on the facts found by the Tribunal, apart from mere suspicion and surmises, no such inference as has been drawn by the Tribunal reasonably follows ; his argument is that the materials point only one way, and on such facts as the Tribunal has found no person acting judicially and properly instructed as to the relevant law could have come to the finding at which it arrived3. Learned counsel for the respondent has contested the correctness of the position taken up on behalf of the appellant, and he has pointed out that the question regarding which the appellant moved the High Court under section 66(2) is different from the question which is now being canvassed. It is true that by merely adding the words " right in law " to a question which is otherwise a question of fact does not make it a question of law. It is equally true that whether a firm is genuine or not is normally a question of fact. It is clear, however, that the grievance of the appellant is that the facts found by the Tribunal do not reasonably lead to the conclusion it has drawn and the conclusion is based on suspicion and surmise4. What are the facts which the Tribunal has found ? They may now be set out seriatim : (1) the two new partners, Nagaratnamma and V. Setty, contributed their share of the capital in the manner stated in the deed of partnership ; (2) the capital account of V. Setty in the books of the partnership business showed, during the six years from 1948 to 1954, that he had accumulated profits of about 2 lakhs and had withdrawn about Rs. 3, 000 a year in the two years 1950 and 1951 and Rs. 15, 366, Rs. 12, 864 and Rs. 12, 058 respectively in the three years 1952, 1953 and 1954 respectively ; (3) that the amounts withdrawn in 1950 and 1951 represented notionally the household expenses debited to his account, by reason of the fact that V. Setty lived then with his brotherin-law; (4) that the amounts withdrawn in 1952, 1953 and 1954 covered similar expenses as also expenses for improvement of a house which V. Setty had purchased in 1945 ; (5) that the appellant had not furnished full details of how the amounts withdrawn in those years were spent ; (6) the account of Nagaratnamma showed that she had not withdrawn any part of her share of profits, which were separately shown in the account ; and (7) she was an ordinary type of Hindu house-wife. The Tribunal also referred to the circumstances that K. R. Setty had been corresponding with the income-tax authorities on the footing that he was the proprietor of the business even after the commencement of the partnership ; but that correspondence does not appear to have been made a part of the record, nor is there any mention of what K. R. Setty had actually stated and in what circumstances. On these facts the Tribunal stated its conclusion in the following words "On the above facts, we do not find it difficult to reach a conclusion that the partnership claimed on the basis of the deed dated November 16, 1949, is not genuine and that the deed is a document not intended to be acted upon. It may be that so far as the outside world is concerned the three persons in question have held themselves out as partners, but that cannot by any means establish automatically the genuineness of the arrangement too. The actual conduct of the parties inter se is the essential point to bear in mind for this purpose. On the above facts, we hold that the firm is not genuine and accordingly not registerable under section 26-A."5. Apart from the relation between the parties which is not in dispute, the Tribunal has not really referred to any conduct of the parties inter se which would indicate that the partnership was not genuine. The underlying assumption in the reasoning of the Tribunal seems to be that a partnership consisting of the wife and brother-in-law must be necessarily suspect and if the wife saves her profits and the brother-in-law does not spend his share of the profits fully, the inference must be that the partnership is a bogus partnership. On the materials placed before us, we consider that such an inference is unreasonable and not justified either by partnership law or common human experience. The books of partnership accounts were not held to be false ; nor was it suggested that there were no good reasons for taking the wife and brother-in-law as partners. It was accepted that both of them contributed their share of the capital, and it was not disputed that the brother-in-law managed the business, and at the relevant time lived with K. R. Setty. Learned counsel for the respondent suggested that the sum of Rs. 50, 000 which Nagaratnamma contributed might not be her stridhanam in law. It is enough to point out that no such finding was given by the Tribunal; on the contrary, the Tribunal found that she contributed her share of the capital in the manner stated in the deed of partnershipFor these reasons, we think that a question of law arises out of the order of the Tribunal, namely, " whether in the facts and circumstances found by the Tribunal, there was material to come to the conclusion that the partnership firm constituted by the deed of partnership dated November 16, 1949, was not genuine? " We would accordingly allow these appeals, set aside the order of the High Court of Mysore dated October 8, 1958, and direct that the Tribunal be required to state a case on the question indicated above and refer it to the said High Court. The appellant will be entitled to its costs of the High Court and of this court. There will be one set of costs in these appeals. | 0[ds]They may now be set out seriatim : (1) the two new partners, Nagaratnamma and V. Setty, contributed their share of the capital in the manner stated in the deed of partnership ; (2) the capital account of V. Setty in the books of the partnership business showed, during the six years from 1948 to 1954, that he had accumulated profits of about 2 lakhs and had withdrawn about Rs. 3, 000 a year in the two years 1950 and 1951 and Rs. 15, 366, Rs. 12, 864 and Rs. 12, 058 respectively in the three years 1952, 1953 and 1954 respectively ; (3) that the amounts withdrawn in 1950 and 1951 represented notionally the household expenses debited to his account, by reason of the fact that V. Setty lived then with his(4) that the amounts withdrawn in 1952, 1953 and 1954 covered similar expenses as also expenses for improvement of a house which V. Setty had purchased in 1945 ; (5) that the appellant had not furnished full details of how the amounts withdrawn in those years were spent ; (6) the account of Nagaratnamma showed that she had not withdrawn any part of her share of profits, which were separately shown in the account ; and (7) she was an ordinary type of HinduThe Tribunal also referred to the circumstances that K. R. Setty had been corresponding with theApart from the relation between the parties which is not in dispute, the Tribunal has not really referred to any conduct of the parties inter se which would indicate that the partnership was not genuine. The underlying assumption in the reasoning of the Tribunal seems to be that a partnership consisting of the wife andmust be necessarily suspect and if the wife saves her profits and thedoes not spend his share of the profits fully, the inference must be that the partnership is a bogus partnership. On the materials placed before us, we consider that such an inference is unreasonable and not justified either by partnership law or common human experience. The books of partnership accounts were not held to be false ; nor was it suggested that there were no good reasons for taking the wife andas partners. It was accepted that both of them contributed their share of the capital, and it was not disputed that themanaged the business, and at the relevant time lived with K. R. Setty. Learned counsel for the respondent suggested that the sum of Rs. 50, 000 which Nagaratnamma contributed might not be her stridhanam in law. It is enough to point out that no such finding was given by the Tribunal; on the contrary, the Tribunal found that she contributed her share of the capital in the manner stated in the deed of partnershipFor these reasons, we think that a question of law arises out of the order of the Tribunal, namely, " whether in the facts and circumstances found by the Tribunal, there was material to come to the conclusion that the partnership firm constituted by the deed of partnership dated November 16, 1949, was not genuine? " We would accordingly allow these appeals, set aside the order of the High Court of Mysore dated October 8, 1958, and direct that the Tribunal be required to state a case on the question indicated above and refer it to the said High Court. The appellant will be entitled to its costs of the High Court and of this court. There will be one set of costs in these appeals. | 0 | 2,120 | 651 | ### 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:
on the footing that on the facts found by the Tribunal, apart from mere suspicion and surmises, no such inference as has been drawn by the Tribunal reasonably follows ; his argument is that the materials point only one way, and on such facts as the Tribunal has found no person acting judicially and properly instructed as to the relevant law could have come to the finding at which it arrived3. Learned counsel for the respondent has contested the correctness of the position taken up on behalf of the appellant, and he has pointed out that the question regarding which the appellant moved the High Court under section 66(2) is different from the question which is now being canvassed. It is true that by merely adding the words " right in law " to a question which is otherwise a question of fact does not make it a question of law. It is equally true that whether a firm is genuine or not is normally a question of fact. It is clear, however, that the grievance of the appellant is that the facts found by the Tribunal do not reasonably lead to the conclusion it has drawn and the conclusion is based on suspicion and surmise4. What are the facts which the Tribunal has found ? They may now be set out seriatim : (1) the two new partners, Nagaratnamma and V. Setty, contributed their share of the capital in the manner stated in the deed of partnership ; (2) the capital account of V. Setty in the books of the partnership business showed, during the six years from 1948 to 1954, that he had accumulated profits of about 2 lakhs and had withdrawn about Rs. 3, 000 a year in the two years 1950 and 1951 and Rs. 15, 366, Rs. 12, 864 and Rs. 12, 058 respectively in the three years 1952, 1953 and 1954 respectively ; (3) that the amounts withdrawn in 1950 and 1951 represented notionally the household expenses debited to his account, by reason of the fact that V. Setty lived then with his brotherin-law; (4) that the amounts withdrawn in 1952, 1953 and 1954 covered similar expenses as also expenses for improvement of a house which V. Setty had purchased in 1945 ; (5) that the appellant had not furnished full details of how the amounts withdrawn in those years were spent ; (6) the account of Nagaratnamma showed that she had not withdrawn any part of her share of profits, which were separately shown in the account ; and (7) she was an ordinary type of Hindu house-wife. The Tribunal also referred to the circumstances that K. R. Setty had been corresponding with the income-tax authorities on the footing that he was the proprietor of the business even after the commencement of the partnership ; but that correspondence does not appear to have been made a part of the record, nor is there any mention of what K. R. Setty had actually stated and in what circumstances. On these facts the Tribunal stated its conclusion in the following words "On the above facts, we do not find it difficult to reach a conclusion that the partnership claimed on the basis of the deed dated November 16, 1949, is not genuine and that the deed is a document not intended to be acted upon. It may be that so far as the outside world is concerned the three persons in question have held themselves out as partners, but that cannot by any means establish automatically the genuineness of the arrangement too. The actual conduct of the parties inter se is the essential point to bear in mind for this purpose. On the above facts, we hold that the firm is not genuine and accordingly not registerable under section 26-A."5. Apart from the relation between the parties which is not in dispute, the Tribunal has not really referred to any conduct of the parties inter se which would indicate that the partnership was not genuine. The underlying assumption in the reasoning of the Tribunal seems to be that a partnership consisting of the wife and brother-in-law must be necessarily suspect and if the wife saves her profits and the brother-in-law does not spend his share of the profits fully, the inference must be that the partnership is a bogus partnership. On the materials placed before us, we consider that such an inference is unreasonable and not justified either by partnership law or common human experience. The books of partnership accounts were not held to be false ; nor was it suggested that there were no good reasons for taking the wife and brother-in-law as partners. It was accepted that both of them contributed their share of the capital, and it was not disputed that the brother-in-law managed the business, and at the relevant time lived with K. R. Setty. Learned counsel for the respondent suggested that the sum of Rs. 50, 000 which Nagaratnamma contributed might not be her stridhanam in law. It is enough to point out that no such finding was given by the Tribunal; on the contrary, the Tribunal found that she contributed her share of the capital in the manner stated in the deed of partnershipFor these reasons, we think that a question of law arises out of the order of the Tribunal, namely, " whether in the facts and circumstances found by the Tribunal, there was material to come to the conclusion that the partnership firm constituted by the deed of partnership dated November 16, 1949, was not genuine? " We would accordingly allow these appeals, set aside the order of the High Court of Mysore dated October 8, 1958, and direct that the Tribunal be required to state a case on the question indicated above and refer it to the said High Court. The appellant will be entitled to its costs of the High Court and of this court. There will be one set of costs in these appeals.
### Response:
0
### Explanation:
They may now be set out seriatim : (1) the two new partners, Nagaratnamma and V. Setty, contributed their share of the capital in the manner stated in the deed of partnership ; (2) the capital account of V. Setty in the books of the partnership business showed, during the six years from 1948 to 1954, that he had accumulated profits of about 2 lakhs and had withdrawn about Rs. 3, 000 a year in the two years 1950 and 1951 and Rs. 15, 366, Rs. 12, 864 and Rs. 12, 058 respectively in the three years 1952, 1953 and 1954 respectively ; (3) that the amounts withdrawn in 1950 and 1951 represented notionally the household expenses debited to his account, by reason of the fact that V. Setty lived then with his(4) that the amounts withdrawn in 1952, 1953 and 1954 covered similar expenses as also expenses for improvement of a house which V. Setty had purchased in 1945 ; (5) that the appellant had not furnished full details of how the amounts withdrawn in those years were spent ; (6) the account of Nagaratnamma showed that she had not withdrawn any part of her share of profits, which were separately shown in the account ; and (7) she was an ordinary type of HinduThe Tribunal also referred to the circumstances that K. R. Setty had been corresponding with theApart from the relation between the parties which is not in dispute, the Tribunal has not really referred to any conduct of the parties inter se which would indicate that the partnership was not genuine. The underlying assumption in the reasoning of the Tribunal seems to be that a partnership consisting of the wife andmust be necessarily suspect and if the wife saves her profits and thedoes not spend his share of the profits fully, the inference must be that the partnership is a bogus partnership. On the materials placed before us, we consider that such an inference is unreasonable and not justified either by partnership law or common human experience. The books of partnership accounts were not held to be false ; nor was it suggested that there were no good reasons for taking the wife andas partners. It was accepted that both of them contributed their share of the capital, and it was not disputed that themanaged the business, and at the relevant time lived with K. R. Setty. Learned counsel for the respondent suggested that the sum of Rs. 50, 000 which Nagaratnamma contributed might not be her stridhanam in law. It is enough to point out that no such finding was given by the Tribunal; on the contrary, the Tribunal found that she contributed her share of the capital in the manner stated in the deed of partnershipFor these reasons, we think that a question of law arises out of the order of the Tribunal, namely, " whether in the facts and circumstances found by the Tribunal, there was material to come to the conclusion that the partnership firm constituted by the deed of partnership dated November 16, 1949, was not genuine? " We would accordingly allow these appeals, set aside the order of the High Court of Mysore dated October 8, 1958, and direct that the Tribunal be required to state a case on the question indicated above and refer it to the said High Court. The appellant will be entitled to its costs of the High Court and of this court. There will be one set of costs in these appeals.
|
Commissioner Of Income-Tax, Bombay City Vs. The Century Spinning And Manufacturing Co. Ltd | is not denied that it was actually distributed. These being the facts, the question arises whether the amount in question can be called a reserve.7. The term reserve is not defined in the Act and we must resort to the ordinary natural meaning as understood in common parlance. The Dictionary meaning of the word Reserve is:"1 (a) To keep for future use or enjoyment: to store up for some time or occasion; to refrain from using or enjoying at once.(b) To keep back or hold over to a later time or place or for further treatment.6. to set apart for some purpose or with some end in view; to keep for some use.11. To retain or preserve for certain purpose" (Oxford Dictionary, Vol. VIII, p. 513).8. In Websters New International Dictionary, Edn, 2. p. 2118, Reserve is defined as follows :"1. To keep in store for future or special use: to keep in reserve; to retain, to keep, as for oneself.2. To keep back; to retain or hold over to a future time or place.3. To preserve."9. What is the true nature and character of the disputed sum must be determined with reference to the substance of the matter and when this is borne in mind, it follows that on 1-4-1946. which is the crucial date, the sum of Rs. 5,08,637 could not be called a reserve, for nobody possessed of the requisite authority had indicated on that date the manner of its disposal or destination. On the other hand, on 28-2-1946, the Directors clearly earmarked it for distribution as divided and did not choose to make it a reserve Nor did the company in its meeting on 3-4-1946. decide that it was a reserve. It remained on the1st of April as a mass of undistributed profits which were available for distribution and not ear-marked as Reserve. On 1-1-1946, the amount was simply brought from the profit and loss account to the next year and nobody with any authority on that date made or declared a reserve. The reserve may be a general reserve or a specific, reserve, but there must be a clear indication to show whether it was a reserve either of the one or the other kind. The fact that it constituted a mass of undistributed profits on 1-1-1946.cannot automatically make it a reserve. On 1-4-1946, which is the commencement of the chargeable accounting period, there was merely a recommendation by the Directors that the amount in question should be distributed as dividend. Far from showing that the Directors had made the amount in question a reserve, it shows that they had decided to ear-mark it for distribution as dividend. By the resolution of the shareholders on 3-4-1946, the amount was shortly afterwards distributed as dividend.The High Court appear to have been under a misapprehension as to the real position, for they observed :"It was open to the Directors to distribute the sum of Rs. 5,08,637 as dividends. They did not choose to do so and have kept back this amount. Therefore, by keeping back this amount they constituted it a reserve. A reserve in the sense. in which it is used in R. 2 can only mean profit earned by a company and not distributed as dividend to the shareholders but kept back by the Directors for any purpose to which it may be put in future. Therefore, giving to the reserves its plain natural meaning, it is clear that the sum of Rs. 5,08,637 was kept in reserve by the company and not distributed as profits and subjected to taxation. Therefore, it. satisfied all the requirements of R. 2."The Directors had no power to distribute the sum as dividend. They could only recommend, as indeed they did. and it was up to the share holders of the company to accept that recommendation in which case alone the distribution could take place. The recommendation was accepted and the dividend was actually distributed. It is, there-fore, not correct to say that the amount was kept back. The nature of the amount which was nothing more than the undistributed profits or the company, remained unaltered. Thus the profits lying unutilized and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Sch. II, R. 2(1).10. Reference was made to Ss. 131(a) and 132, Indian Companies Act. Section 131 (a) enjoins upon the Directors to attach to every balance-sheet a report with respect to the state of companys affairs and the amount if any which they recommended to be paid by way of dividend and the amount. if any, which they propose to carry to the Reserve Fund, General Reserve or Reserve Account. The latter section refers to the contents of the balance-sheet which is to be drawn up in the Form marked F in the III Schedule. This Form contains a separate head of reserves.Regulation 99 of the 1st Schedule. Table A, lays down"that the Directors may, before recommending any dividend set aside out of the profits of the company such sums as they think, proper as a reserve or reserves which shall, at the discretion of the directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the company may be properly applied. .. .. . .. "The Regulation suggests that any sum out of the profits of the company which is to be made as a reserve or reserves must be set aside before the Directors recommended any dividend.In this case the Directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves. Indeed they never applied their mind to this aspect of the matter. The balance-sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian Companies Act. These provisions also support the conclusion as to what is the true nature of a reserve shown in a balance-sheet. | 1[ds]9. What is the true nature and character of the disputed sum must be determined with reference to the substance of the matter and when this is borne in mind, it follows that on 1-4-1946. which is the crucial date, the sum of Rs. 5,08,637 could not be called a reserve, for nobody possessed of the requisite authority had indicated on that date the manner of its disposal or destination. On the other hand, on 28-2-1946, the Directors clearly earmarked it for distribution as divided and did not choose to make it a reserve Nor did the company in its meeting on 3-4-1946. decide that it was a reserve. It remained on the1st of April as a mass of undistributed profits which were available for distribution and not ear-marked as Reserve. On 1-1-1946, the amount was simply brought from the profit and loss account to the next year and nobody with any authority on that date made or declared a reserve. The reserve may be a general reserve or a specific, reserve, but there must be a clear indication to show whether it was a reserve either of the one or the other kind. The fact that it constituted a mass of undistributed profits on 1-1-1946.cannot automatically make it a reserve. On 1-4-1946, which is the commencement of the chargeable accounting period, there was merely a recommendation by the Directors that the amount in question should be distributed as dividend. Far from showing that the Directors had made the amount in question a reserve, it shows that they had decided to ear-mark it for distribution as dividend. By the resolution of the shareholders on 3-4-1946, the amount was shortly afterwards distributed as dividend.TheDirectors had no power to distribute the sum as dividend. They could only recommend, as indeed they did. and it was up to the share holders of the company to accept that recommendation in which case alone the distribution could take place. The recommendation was accepted and the dividend was actually distributed. It is, there-fore, not correct to say that the amount was kept back. The nature of the amount which was nothing more than the undistributed profits or the company, remained unaltered. Thus the profits lying unutilized and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Sch. II, R.Regulation suggests that any sum out of the profits of the company which is to be made as a reserve or reserves must be set aside before the Directors recommended any dividend.In this case the Directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves. Indeed they never applied their mind to this aspect of the matter. The balance-sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian Companies Act. These provisions also support the conclusion as to what is the true nature of a reserve shown in a balance-sheet.11. We are of the opinion that the view taken by the Bombay High Court is erroneous and must be set aside. The appeal of the Commissioner of Income-tax is allowed with costs.12. As regards the second question Mr. Kolah, the learned counsel for the Company, frankly conceded that the view taken by the High Court on this part of the case is not open to challenge and is correct. The High Court held that the profits for three months from 1-1-1946 to 1-4-1946. were not reserves which would attract the application of R. 2 of Sch. II. With this conclusion we agree. | 1 | 2,433 | 656 | ### 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:
is not denied that it was actually distributed. These being the facts, the question arises whether the amount in question can be called a reserve.7. The term reserve is not defined in the Act and we must resort to the ordinary natural meaning as understood in common parlance. The Dictionary meaning of the word Reserve is:"1 (a) To keep for future use or enjoyment: to store up for some time or occasion; to refrain from using or enjoying at once.(b) To keep back or hold over to a later time or place or for further treatment.6. to set apart for some purpose or with some end in view; to keep for some use.11. To retain or preserve for certain purpose" (Oxford Dictionary, Vol. VIII, p. 513).8. In Websters New International Dictionary, Edn, 2. p. 2118, Reserve is defined as follows :"1. To keep in store for future or special use: to keep in reserve; to retain, to keep, as for oneself.2. To keep back; to retain or hold over to a future time or place.3. To preserve."9. What is the true nature and character of the disputed sum must be determined with reference to the substance of the matter and when this is borne in mind, it follows that on 1-4-1946. which is the crucial date, the sum of Rs. 5,08,637 could not be called a reserve, for nobody possessed of the requisite authority had indicated on that date the manner of its disposal or destination. On the other hand, on 28-2-1946, the Directors clearly earmarked it for distribution as divided and did not choose to make it a reserve Nor did the company in its meeting on 3-4-1946. decide that it was a reserve. It remained on the1st of April as a mass of undistributed profits which were available for distribution and not ear-marked as Reserve. On 1-1-1946, the amount was simply brought from the profit and loss account to the next year and nobody with any authority on that date made or declared a reserve. The reserve may be a general reserve or a specific, reserve, but there must be a clear indication to show whether it was a reserve either of the one or the other kind. The fact that it constituted a mass of undistributed profits on 1-1-1946.cannot automatically make it a reserve. On 1-4-1946, which is the commencement of the chargeable accounting period, there was merely a recommendation by the Directors that the amount in question should be distributed as dividend. Far from showing that the Directors had made the amount in question a reserve, it shows that they had decided to ear-mark it for distribution as dividend. By the resolution of the shareholders on 3-4-1946, the amount was shortly afterwards distributed as dividend.The High Court appear to have been under a misapprehension as to the real position, for they observed :"It was open to the Directors to distribute the sum of Rs. 5,08,637 as dividends. They did not choose to do so and have kept back this amount. Therefore, by keeping back this amount they constituted it a reserve. A reserve in the sense. in which it is used in R. 2 can only mean profit earned by a company and not distributed as dividend to the shareholders but kept back by the Directors for any purpose to which it may be put in future. Therefore, giving to the reserves its plain natural meaning, it is clear that the sum of Rs. 5,08,637 was kept in reserve by the company and not distributed as profits and subjected to taxation. Therefore, it. satisfied all the requirements of R. 2."The Directors had no power to distribute the sum as dividend. They could only recommend, as indeed they did. and it was up to the share holders of the company to accept that recommendation in which case alone the distribution could take place. The recommendation was accepted and the dividend was actually distributed. It is, there-fore, not correct to say that the amount was kept back. The nature of the amount which was nothing more than the undistributed profits or the company, remained unaltered. Thus the profits lying unutilized and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Sch. II, R. 2(1).10. Reference was made to Ss. 131(a) and 132, Indian Companies Act. Section 131 (a) enjoins upon the Directors to attach to every balance-sheet a report with respect to the state of companys affairs and the amount if any which they recommended to be paid by way of dividend and the amount. if any, which they propose to carry to the Reserve Fund, General Reserve or Reserve Account. The latter section refers to the contents of the balance-sheet which is to be drawn up in the Form marked F in the III Schedule. This Form contains a separate head of reserves.Regulation 99 of the 1st Schedule. Table A, lays down"that the Directors may, before recommending any dividend set aside out of the profits of the company such sums as they think, proper as a reserve or reserves which shall, at the discretion of the directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the company may be properly applied. .. .. . .. "The Regulation suggests that any sum out of the profits of the company which is to be made as a reserve or reserves must be set aside before the Directors recommended any dividend.In this case the Directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves. Indeed they never applied their mind to this aspect of the matter. The balance-sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian Companies Act. These provisions also support the conclusion as to what is the true nature of a reserve shown in a balance-sheet.
### Response:
1
### Explanation:
9. What is the true nature and character of the disputed sum must be determined with reference to the substance of the matter and when this is borne in mind, it follows that on 1-4-1946. which is the crucial date, the sum of Rs. 5,08,637 could not be called a reserve, for nobody possessed of the requisite authority had indicated on that date the manner of its disposal or destination. On the other hand, on 28-2-1946, the Directors clearly earmarked it for distribution as divided and did not choose to make it a reserve Nor did the company in its meeting on 3-4-1946. decide that it was a reserve. It remained on the1st of April as a mass of undistributed profits which were available for distribution and not ear-marked as Reserve. On 1-1-1946, the amount was simply brought from the profit and loss account to the next year and nobody with any authority on that date made or declared a reserve. The reserve may be a general reserve or a specific, reserve, but there must be a clear indication to show whether it was a reserve either of the one or the other kind. The fact that it constituted a mass of undistributed profits on 1-1-1946.cannot automatically make it a reserve. On 1-4-1946, which is the commencement of the chargeable accounting period, there was merely a recommendation by the Directors that the amount in question should be distributed as dividend. Far from showing that the Directors had made the amount in question a reserve, it shows that they had decided to ear-mark it for distribution as dividend. By the resolution of the shareholders on 3-4-1946, the amount was shortly afterwards distributed as dividend.TheDirectors had no power to distribute the sum as dividend. They could only recommend, as indeed they did. and it was up to the share holders of the company to accept that recommendation in which case alone the distribution could take place. The recommendation was accepted and the dividend was actually distributed. It is, there-fore, not correct to say that the amount was kept back. The nature of the amount which was nothing more than the undistributed profits or the company, remained unaltered. Thus the profits lying unutilized and not specially set apart for any purpose on the crucial date did not constitute reserves within the meaning of Sch. II, R.Regulation suggests that any sum out of the profits of the company which is to be made as a reserve or reserves must be set aside before the Directors recommended any dividend.In this case the Directors while recommending dividend took no action to set aside any portion of this sum as a reserve or reserves. Indeed they never applied their mind to this aspect of the matter. The balance-sheet drawn up by the assessee as showing the profits was prepared in accordance with the provisions of the Indian Companies Act. These provisions also support the conclusion as to what is the true nature of a reserve shown in a balance-sheet.11. We are of the opinion that the view taken by the Bombay High Court is erroneous and must be set aside. The appeal of the Commissioner of Income-tax is allowed with costs.12. As regards the second question Mr. Kolah, the learned counsel for the Company, frankly conceded that the view taken by the High Court on this part of the case is not open to challenge and is correct. The High Court held that the profits for three months from 1-1-1946 to 1-4-1946. were not reserves which would attract the application of R. 2 of Sch. II. With this conclusion we agree.
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Smt. Aslhing @ Lhingjanong Vs. L.S. John and Others | FAZAL ALI, J.1. In this election appeal the only point for determination is whether at the time when respondent No. I filed his nomination paper he held a subsisting contract with the Government for widening the PLP road.. While it is true that there was such a contract in existence prior to 30.11.1979, respondent No. 1 wrote a letter on 30.11.1979 to the concerned Executive Engineer stating that he was closing the said contract. The last date for filing nomination was 10.12.1979. It is argued that the contents of the said letter does not have the effect of putting an end to the contract. After going through the contents of the letter i t is absolutely clear that the contractor unilaterally put an end to the contract and informed the Department concerned accordingly and also he had resigned from the contractors list of PWD Manipur. Thus after this letter the contract came t o an end by breach and the contract was no longer subsisting. Mr. Rangarajan has submitted some very nice and delicate questions for consideration. One of them-being that until and unless the letter is accepted by the Authority the contract would continue and thus the respondent would suffer from the disqualification. In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting. The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages. No other point is raised before us. | 0[ds]In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting. The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages. No other point is raised before us. | 0 | 284 | 71 | ### 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:
FAZAL ALI, J.1. In this election appeal the only point for determination is whether at the time when respondent No. I filed his nomination paper he held a subsisting contract with the Government for widening the PLP road.. While it is true that there was such a contract in existence prior to 30.11.1979, respondent No. 1 wrote a letter on 30.11.1979 to the concerned Executive Engineer stating that he was closing the said contract. The last date for filing nomination was 10.12.1979. It is argued that the contents of the said letter does not have the effect of putting an end to the contract. After going through the contents of the letter i t is absolutely clear that the contractor unilaterally put an end to the contract and informed the Department concerned accordingly and also he had resigned from the contractors list of PWD Manipur. Thus after this letter the contract came t o an end by breach and the contract was no longer subsisting. Mr. Rangarajan has submitted some very nice and delicate questions for consideration. One of them-being that until and unless the letter is accepted by the Authority the contract would continue and thus the respondent would suffer from the disqualification. In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting. The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages. No other point is raised before us.
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### Explanation:
In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting. The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages. No other point is raised before us.
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Management Of Ritz Theatre (P) Ltd Vs. Its Workmen | was the specific plea made by the respondents in their statement before the Tribunal and that had been specifically traversed by the appellant. In support of its plea that the order of dismissal had been served on the employee, the appellant had examined certain witnesses; and before deciding the question as to whether the finding of the Tribunal is based on any evidence or not, it may be necessary to consider that evidence broadly. It does appear that a document had been produced by the appellant (Ex. M/8) which purports to be the order of dismissal and which purports to bear the signature of Mohd. Mia.Mohd. Mia took oath before the Tribunal that that signature was not his and that in fact no order had been served on him. He has not been cross-examined on this point. But apart from this aspect of the matter, the evidence given by the appellant in support of its case that the order of dismissal has been served on Mohd. Mia is so completely discrepant that it must be discarded as worthless. Om Bahl who is the Manager of the Ritz Theatre stated that when he received the order of dismissal of Mohd. Mia from the Managing Directors Head Office Delhi, he gave it to the Assistant Manager to be served on the employee. He no doubt purported to say that it contained the signature of Mohd. Mia. but he knew nothing about the actual service and so his evidence is not of much assistance. Om Prakash, the Assistant Manager stated that he in his turn gave the order of dismissal to his staff to get it served on Mohd. Mia. He frankly stated that Mohd. Mia did not put his signature on the order in his presence, and so his evidence also does not help. It would be noticed that the evidence of Om Bahl and Om Prakash makes it clear that neither of them was present when the order was alleged to have been served on Mohd. Mia. Now, when we come to the evidence of Kundan Lal, he stated that the order was given by Mr. Om. Prakash to Mohd. Mia in his presence. In other words, the evidence of this witness purports to show that the order of dismissal was served on Mohd. Mia by the Assistant Manager in the presence of this witness, and that clearly is consistent with the testimony of Om Prakash himself. Similarly, Bhagwati Prasad stated that Om Prakash, Om Bahl and Kundan Lal were all present when the order was served so that this witness went one step further when he stated that not only the Assistant Manager but the Manager was also present when the orders was served. Having regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidence. 19. That takes us to the question as to the proper order which should be passed in respect of Mohd. Mia. The grievance made by the respondents before the Tribunal was that Mohd. Mia had been suspended from September 11, 1958, and had continued under suspension ever since. That is why they claimed that he was entitled to reinstatement. Mr. Andley contends that though it may not be possible for him to rely on the evidence led by the appellant in support of its plea that the order of dismissal had in fact been served on Mohd. Mia, it would be open to him to contend that at least on the date of reference Mohd. Mia had notice that he had been dismissed and so the relationship of master and servant should be deemed to have been terminated from that date in any event. We are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day. | 1[ds]12. We do not think that this view can be accepted as correct. In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. It is quite conceivable, and in fact it happens in many cases, that the employer may rely on the enquiry in the first instance and alternatively and without prejudice to his plea that the enquiry is proper and binding, may seek to lead additional evidence. It would, we think, be unfair to hold that merely by adopting such a course, the employer gives up his plea that the enquiry was proper and that the Tribunal should not go into the merits of the dispute for itself. If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence it would follow that he gives up his stand based on the holding of the domestic enquiry. Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer; if the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence. Instead of following such an elaborate and somewhat cumbersome procedure, if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given an opportunity to lead additional evidence,it would be open to the Tribunal first to consider the preliminary issue and then to proceed to deal with the merits in case the preliminary issue is decided against the employer. That, in our opinion, is the true and correct legal position in this matterIt was observed in the course of the judgment that where there has been a proper enquiry by the management, itself the Tribunal, it has been settled by a number of decisions of this Court has to accept the finding arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. Then this Court proceeded to add that the mere fact that no enquiry has been held or that the enquiry has not been held or that the enquiry has not been properly conducted can not absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. It would thus be seen that this decision lays down the principle that even if no enquiry has been held and an industrial employee has been dismissed, where a dispute is referred to the Industrial Tribunal for its adjudication, the failure to hold the enquiry would not necessarily be fatal to the employers case and it would be open to him to justify the dismissal by citing evidence before the Tribunal in support of his case that the employee was guilty of misconduct which justified his dismissal. This conclusion cannot by any stretch of imagination support Mr. Sastris contention that as soon as evidence is led by the employer, the plea raised by him on the ground of the enquiry held by him prior to the dismissal of the employee is not available to him and that the Tribunal is at liberty to examine the question and decide it on the merits for itselfWe are satisfied that this literal and somewhat mechanical way of regarding this solitary sentence in the judgment torn from its context is not justified. Therefore we do not think that there is any authority for the proposition that wherever the employer seeks to lead additional evidence before the Tribunal in support of the dismissal of his employee, it must necessarily follow that he has given up his stand based on the previous departmental enquiry and the Tribunal is entitled to examine the dispute on the merits for itself; and on principle of fair play and justice the said proposition is unsound. That is why we hold that the Tribunal was in error in proceeding to examine the evidence for itself in coming to the conclusion that the dismissal of Jai Jai Ram was not justified on the merits. It is true that the Tribunal has observed that the findings recorded at the departmental enquiry were baseless, but that clearly is the result of its appreciation of the whole of the evidence adduced before it and this course should not have been adopted by the Tribunal15. It appears from the award that no attempt was made before the Tribunal by the respondents to justify their plea that the enquiry was improper or unfair. In fact, as we have already indicated, the Tribunal took the view that because evidence was led by the employer the scope of the enquiry automatically became wider. However, we have heard Mr. Sastri in support of his argument that in fact the enquiry was unfair. In dealing with this point, it may be necessary to recall that the enquiry in the present case has been very elaborate. As we have already pointed out, eleven witnesses each were examined by both the parties, and documentary evidence was also adduced; and the Enquiry Officer has made an elaborate and well-considered report. He has examined the oral evidence cited before him, considered the documents to which his attention was drawn and has also examined the probabilities in the case. Therefore prima facie, it would be difficult to entertain the plea that the enquiry was unfair or that the conclusions reached by the enquiry Officer were baseless. The record of the enquiry shows that all the witnesses examined by the employer were cross-examined by the respondents and the record does not show that any opportunity was refused to the respondents either to test the employers evidence or to lead their own evidenceIt is true that in this application ten separate grounds had been set out alleging irregularities committed at the said enquiry. But it is significant that no attempt has been made before the Tribunal to justify these allegations. The Secretary who signed that documents has given evidence in this case, but he has no personal knowledge about the said allegations and he has said nothing about them. Mohd. Mia has also given evidence, but he has also not said anything about those allegations. Jai Jai Ram has not given evidence before the Tribunal. Therefore it is quite clear that on the record before the Tribunal, there is no evidence whatever to justify the several allegations made in the document on which Mr. Sastri relies. That is why we think this ground of attack against the propriety or the fairness of the enquiry must be rejectedIt appears that the Enquiry Officer wanted an actual verification of carben consumption, and so he directed that a sort of mathematical stipulation should be submitted by the management in that behalf. That brings out clearly the thorough manner in which the Enquiry Officer conducted the enquiry. The report shows that whilst this material was being prepared, the workmen did not co-operate and Mr. Sastris grievance is that they were not given an opportunity to co- operate in this matter. This contention is not justified by the record at all. It appears that Jai Jai Ram wanted that he should work the machines when the said material was being collected, and that request was naturally not accepted by the Enquiry Officer; but the fact that this request was turned down did not justify Jai Jai Rams non-co-operation when the calculations were made and documents were prepared in that behalf. Therefore it seems to us that the Enquiry Officer was justified in criticising the employees for not co-operating with the employer when the said statement was prepared. The argument that a proper opportunity was not given to the employee in that behalf must therefore be rejected. The result is that the grievance made by Mr. Sastri before us that the enquiry was unfair or otherwise improper cannot be sustained. If that be the true position, it follows that the order of dismissal passed against Jai Jai Ram must be sustainedHaving regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidenceWe are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day. | 1 | 5,066 | 2,049 | ### 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:
was the specific plea made by the respondents in their statement before the Tribunal and that had been specifically traversed by the appellant. In support of its plea that the order of dismissal had been served on the employee, the appellant had examined certain witnesses; and before deciding the question as to whether the finding of the Tribunal is based on any evidence or not, it may be necessary to consider that evidence broadly. It does appear that a document had been produced by the appellant (Ex. M/8) which purports to be the order of dismissal and which purports to bear the signature of Mohd. Mia.Mohd. Mia took oath before the Tribunal that that signature was not his and that in fact no order had been served on him. He has not been cross-examined on this point. But apart from this aspect of the matter, the evidence given by the appellant in support of its case that the order of dismissal has been served on Mohd. Mia is so completely discrepant that it must be discarded as worthless. Om Bahl who is the Manager of the Ritz Theatre stated that when he received the order of dismissal of Mohd. Mia from the Managing Directors Head Office Delhi, he gave it to the Assistant Manager to be served on the employee. He no doubt purported to say that it contained the signature of Mohd. Mia. but he knew nothing about the actual service and so his evidence is not of much assistance. Om Prakash, the Assistant Manager stated that he in his turn gave the order of dismissal to his staff to get it served on Mohd. Mia. He frankly stated that Mohd. Mia did not put his signature on the order in his presence, and so his evidence also does not help. It would be noticed that the evidence of Om Bahl and Om Prakash makes it clear that neither of them was present when the order was alleged to have been served on Mohd. Mia. Now, when we come to the evidence of Kundan Lal, he stated that the order was given by Mr. Om. Prakash to Mohd. Mia in his presence. In other words, the evidence of this witness purports to show that the order of dismissal was served on Mohd. Mia by the Assistant Manager in the presence of this witness, and that clearly is consistent with the testimony of Om Prakash himself. Similarly, Bhagwati Prasad stated that Om Prakash, Om Bahl and Kundan Lal were all present when the order was served so that this witness went one step further when he stated that not only the Assistant Manager but the Manager was also present when the orders was served. Having regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidence. 19. That takes us to the question as to the proper order which should be passed in respect of Mohd. Mia. The grievance made by the respondents before the Tribunal was that Mohd. Mia had been suspended from September 11, 1958, and had continued under suspension ever since. That is why they claimed that he was entitled to reinstatement. Mr. Andley contends that though it may not be possible for him to rely on the evidence led by the appellant in support of its plea that the order of dismissal had in fact been served on Mohd. Mia, it would be open to him to contend that at least on the date of reference Mohd. Mia had notice that he had been dismissed and so the relationship of master and servant should be deemed to have been terminated from that date in any event. We are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day.
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was made before the Tribunal by the respondents to justify their plea that the enquiry was improper or unfair. In fact, as we have already indicated, the Tribunal took the view that because evidence was led by the employer the scope of the enquiry automatically became wider. However, we have heard Mr. Sastri in support of his argument that in fact the enquiry was unfair. In dealing with this point, it may be necessary to recall that the enquiry in the present case has been very elaborate. As we have already pointed out, eleven witnesses each were examined by both the parties, and documentary evidence was also adduced; and the Enquiry Officer has made an elaborate and well-considered report. He has examined the oral evidence cited before him, considered the documents to which his attention was drawn and has also examined the probabilities in the case. Therefore prima facie, it would be difficult to entertain the plea that the enquiry was unfair or that the conclusions reached by the enquiry Officer were baseless. The record of the enquiry shows that all the witnesses examined by the employer were cross-examined by the respondents and the record does not show that any opportunity was refused to the respondents either to test the employers evidence or to lead their own evidenceIt is true that in this application ten separate grounds had been set out alleging irregularities committed at the said enquiry. But it is significant that no attempt has been made before the Tribunal to justify these allegations. The Secretary who signed that documents has given evidence in this case, but he has no personal knowledge about the said allegations and he has said nothing about them. Mohd. Mia has also given evidence, but he has also not said anything about those allegations. Jai Jai Ram has not given evidence before the Tribunal. Therefore it is quite clear that on the record before the Tribunal, there is no evidence whatever to justify the several allegations made in the document on which Mr. Sastri relies. That is why we think this ground of attack against the propriety or the fairness of the enquiry must be rejectedIt appears that the Enquiry Officer wanted an actual verification of carben consumption, and so he directed that a sort of mathematical stipulation should be submitted by the management in that behalf. That brings out clearly the thorough manner in which the Enquiry Officer conducted the enquiry. The report shows that whilst this material was being prepared, the workmen did not co-operate and Mr. Sastris grievance is that they were not given an opportunity to co- operate in this matter. This contention is not justified by the record at all. It appears that Jai Jai Ram wanted that he should work the machines when the said material was being collected, and that request was naturally not accepted by the Enquiry Officer; but the fact that this request was turned down did not justify Jai Jai Rams non-co-operation when the calculations were made and documents were prepared in that behalf. Therefore it seems to us that the Enquiry Officer was justified in criticising the employees for not co-operating with the employer when the said statement was prepared. The argument that a proper opportunity was not given to the employee in that behalf must therefore be rejected. The result is that the grievance made by Mr. Sastri before us that the enquiry was unfair or otherwise improper cannot be sustained. If that be the true position, it follows that the order of dismissal passed against Jai Jai Ram must be sustainedHaving regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on Mohd. Mia. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidenceWe are not prepared to accept this argument, particularly when we are satisfied that the appellant has taken a different plea and sought to support it by evidence which it should not have done The relationship of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employees service but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. Andley to-day and Mr. Sastri concedes that effective steps have now been taken by the employer to terminate the service of Mohd. Mia and that from to-day in any case he is not an employee of the appellant. That being so the further question which we have to consider is the amount which we should direct the appellant to pay to Mohd. Mia. Mr. Andley has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extent beyond a fortnight. There are no standing orders in the appellants concern and Mr. Andley has therefore requested us to hold that the suspension of Mohd. Mia was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to accept this argument partially; because in the circumstances of this case, we think, it would be fair to hold that the order of suspension passed on Mohd. Mia on September 11, 1955 was justified until December 1, 1958; and so we direct that from December 1, 1958 until to-day the appellant should pay Mohd. Mia the wages to which he would have been entitled if he had been in the actual employment of the appellant and had been working in its concern from day to day.
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Commissioner of Income Tax Vs. Kala Cartoons P. Limited (And Others Appeals and Special Leave Petitions) | C.A. Nos. 3967-71 of 1999 : At the instance of the Revenue, the following questions relating to the assessment years 1980-81 to 1984-85 were referred for the opinion of the High Court under section 256(2) of the Income-tax Act, 1961 : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that the assessee is an industrial company eligible to be taxed only at the rate of 55 per cent. ? (1)(a) Whether processing of marine products for export would make the assessee an industrial company ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that it cannot be said that the issue involved herein is a debatable issue and on that basis there was no mistake on the face of the record and are not the findings wrong, unreasonable and illogical ?" * The High Court by the judgment and order under appeal answered questions Nos. 1 and 1(a) in the affirmative, that is, in favour of the assessee and against the Revenue. The second question was returned unanswered. In these appeals, we are not concerned with the second question and in relation thereto, learned counsel for the Revenue did not make any submission. The Tribunal, while answering the aforesaid questions in favour of the assessee, has relied upon the decisions of the Kerala High Court in CIT v. Marwell Sea Foods 1987 KER 263 and CIT v. Relish Foods 1989 KER 106. The case of the assessee for claiming allowance under section 80HH is that it is an industrial undertaking that manufactures/produces articles. The Tribunal has held that the activities of the assessee involve purchasing, peeling, freezing and export of shrimps. The said activities were held to be amounting to production. Apart from the above activities, there is no description of what the assessee does to the shrimps after buying except peeling and freezing and thereafter exporting.The decision of the High Court in the case of Relish Foods 1989 KER 106, has been set aside by this court in the case of CIT v. Relish Foods 1999 SC 431 . In respect of Marwell Sea Foods case 1987 KER 263 (Ker), it was noticed by this court that the assessee therein had placed before the taxing authorities a detailed description of the process by which prawns were prepared for export and the appellate authorities had understood the various stages through which the prawns passed as processes involving production or manufacture. Here nothing of the kind was placed by the assessee before the taxing authorities. The present case is squarely covered by the decision in the case of Relish Foods 1999 SC 431 (SC). | 1[ds]The case of the assessee for claiming allowance under section 80HH is that it is an industrial undertaking that manufactures/produces articles. The Tribunal has held that the activities of the assessee involve purchasing, peeling, freezing and export of shrimps. The said activities were held to be amounting to production. Apart from the above activities, there is no description of what the assessee does to the shrimps after buying except peeling and freezing and thereafter exporting.The decision of the High Court in the case of Relish Foods 1989 KER 106, has been set aside by this court in the case of CIT v. Relish Foods 1999 SC 431 . In respect of Marwell Sea Foods case 1987 KER 263 (Ker), it was noticed by this court that the assessee therein had placed before the taxing authorities a detailed description of the process by which prawns were prepared for export and the appellate authorities had understood the various stages through which the prawns passed as processes involving production or manufacture. Here nothing of the kind was placed by the assessee before the taxing authorities. The present case is squarely covered by the decision in the case of Relish Foods 1999 SC 431 (SC). | 1 | 515 | 220 | ### 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:
C.A. Nos. 3967-71 of 1999 : At the instance of the Revenue, the following questions relating to the assessment years 1980-81 to 1984-85 were referred for the opinion of the High Court under section 256(2) of the Income-tax Act, 1961 : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that the assessee is an industrial company eligible to be taxed only at the rate of 55 per cent. ? (1)(a) Whether processing of marine products for export would make the assessee an industrial company ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that it cannot be said that the issue involved herein is a debatable issue and on that basis there was no mistake on the face of the record and are not the findings wrong, unreasonable and illogical ?" * The High Court by the judgment and order under appeal answered questions Nos. 1 and 1(a) in the affirmative, that is, in favour of the assessee and against the Revenue. The second question was returned unanswered. In these appeals, we are not concerned with the second question and in relation thereto, learned counsel for the Revenue did not make any submission. The Tribunal, while answering the aforesaid questions in favour of the assessee, has relied upon the decisions of the Kerala High Court in CIT v. Marwell Sea Foods 1987 KER 263 and CIT v. Relish Foods 1989 KER 106. The case of the assessee for claiming allowance under section 80HH is that it is an industrial undertaking that manufactures/produces articles. The Tribunal has held that the activities of the assessee involve purchasing, peeling, freezing and export of shrimps. The said activities were held to be amounting to production. Apart from the above activities, there is no description of what the assessee does to the shrimps after buying except peeling and freezing and thereafter exporting.The decision of the High Court in the case of Relish Foods 1989 KER 106, has been set aside by this court in the case of CIT v. Relish Foods 1999 SC 431 . In respect of Marwell Sea Foods case 1987 KER 263 (Ker), it was noticed by this court that the assessee therein had placed before the taxing authorities a detailed description of the process by which prawns were prepared for export and the appellate authorities had understood the various stages through which the prawns passed as processes involving production or manufacture. Here nothing of the kind was placed by the assessee before the taxing authorities. The present case is squarely covered by the decision in the case of Relish Foods 1999 SC 431 (SC).
### Response:
1
### Explanation:
The case of the assessee for claiming allowance under section 80HH is that it is an industrial undertaking that manufactures/produces articles. The Tribunal has held that the activities of the assessee involve purchasing, peeling, freezing and export of shrimps. The said activities were held to be amounting to production. Apart from the above activities, there is no description of what the assessee does to the shrimps after buying except peeling and freezing and thereafter exporting.The decision of the High Court in the case of Relish Foods 1989 KER 106, has been set aside by this court in the case of CIT v. Relish Foods 1999 SC 431 . In respect of Marwell Sea Foods case 1987 KER 263 (Ker), it was noticed by this court that the assessee therein had placed before the taxing authorities a detailed description of the process by which prawns were prepared for export and the appellate authorities had understood the various stages through which the prawns passed as processes involving production or manufacture. Here nothing of the kind was placed by the assessee before the taxing authorities. The present case is squarely covered by the decision in the case of Relish Foods 1999 SC 431 (SC).
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Bharat Coking Coal Limited Vs. S State Of Bihar | right of collection of sludge/slurry has been settled have all along taken the stand that the discharge of slurry/sludge by the appellants washery into the river has been polluting the river and affecting the fertility of land, therefore the State government, permitted the removal of the slurry/sludge with a view to prevent pollution of the river and the land. On the admitted facts the entire activity relating to disposal of the industrial waste, slime or tailing in the shape of sludge/slurry escaping from the washeries of the appellants coal mines including the prevention of pollution of river water or land is covered by S. 18 of the Act. The High courts confined themselves to the question whether sludge/slurry was a mineral under the Act and failed to consider the scope and effect of S. 18 of the Act. We are therefore of the opinion that in view of the admitted case of the parties disposal of sludge/slurry coming out from the washeries of appellants coal mines is covered by the Act and the State government had no authority in law to grant any lease or settlement authorising collection of the same from the river bed or from any other land. Consequently, the respondents in whose favour settlements have been made by the State government have no right or authority to collect sludge/slurry either from the river bed or from any other land.(23) IN Civil No. 4521 of 1986 the appellants claim that plot No. 370 situated in village Sudamdih belonged to them and the sludge/slurry discharged from their washery as settled down on that land also belonged to them therefore the State government had no authorityin law to permit respondents to collect slurry coal from their land. The High court held that since the appellants ownership rights in respect of plot No. 370 of village Sudamdih was seriously disputed the question should be decided by the civil court. Mr Kapil Sibal learned counsel for the appellant urged that the High court committed serious error as there was no scope for any dispute regarding the question of ownership of plot No. 370. We find force in his submission. There is sufficient material on record to show that Bharat Coking Coal Ltd. is the owner of the plot No. 370 situated at village Sudamdih and the respondents have failed to place any material before the court that the appellant is not owner of plot No. 370. A Notification was issued by the central government on 6/08/1960 under Ss. (1 of S. 4 of the Coal Bearing Areas (Acquisition and Development) Act, 1957, for purpose of prospecting coal in the land specified in the Schedule to the notification included the entire land of village Sudamdih District Dhanbad. By another Notification dated 30/08/1961 issued under S. 7 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 the central government declared its intention to acquire the lands measuring 778. 45 acres specified in Schedule A to the notification Sudamdih village was mentioned in the Schedule. Plot No. 370 of Sudamdih was expressly specified therein. By another Notification dated 16/12/1961 the central government declared under S. 9 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 that the land measuring 778. 45 acres described in Schedule A and the rights to mine, quarry, bore, dig and search for win work and carry away minerals in the lands measuring 625. 73 acres described in Schedule B are acquired. The Schedule to the notification clearly stated that all rights in village Sudamdih were acquired and plot No. 370 was expressly specified in the Schedule to the notification. On the issue of the aforesaid notifications the lands specified therein vested in the central government. The central government by its order dated 27/01/1962 transferred the aforesaid lands including plot No. 370 situated in village Sudamdih to National Coal Development Corporation, a government undertaking. In 1975 the central government reorganised the management structure of the coal industry in the public sector and a central company, i. e. Coal India Limited, was constituted having Bharat Coking Coal Limited as one of its subsidiaries. Bharat Coking Coal Ltd. was incorporated for running and managing the Sudamdih and Monidih coal mines of National Development Corporation. Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat Coking Coal Ltd. During the pendency of the appeal before this court proceedings were initiated against respondent 4 for the violation of interim orders of this court. In the contempt proceedings respondent 4 contended that plot No. 370 of village Sudamdih belonged to the State of Bihar and the appellants had no ownership rights therein. This court held that since plot No. 370 of Sudamdih has been acquired under S. 9 (1 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 the appellant company was its owner, and it was idle to contend the contrary. We therefore hold that the appellant is the owner of plot No. 370 of village Sudamdih and the State government had no authority in law to make any arrangement or to settle any right with respondents for collecting slurry deposits from that plot No. 370 of Sudamdih.(24) IN view of the above discussion, we hold that the slurry which escapes from the appellants washeries is mineral and its regulation is within the exclusive jurisdiction of the central government. We further hold that in view of the Parliamentary declaration made by S. 2 of the Act and having regard to S. 18 of the Act and State government has no authority in law to make a settlement or grant any lease to any person for the collection of slurry deposits either from the river bed or other land. The impugned settlements made in favour of the respondents by the State government are illegal and the respondent-lessees have no right or title to collect the slurry deposits, therefore, they are restrained from lifting or collecting the same from the land in dispute. | 1[ds](10) VIEWED in the light of the above meaning of slurry, there is no doubt that in the instant cases slurry is coal slurry, as admittedly small particles of coal escape from the washery plant along with water. After it overflows the storage pond the slurry flows into the river and is deposited on the river bed, which is later on collected and used as fuel after it is formed into briquettes. The deposit which is collected from the river bed continues to be carbonaceous in character having all the elements of coal. Thus, the slurry is coal in liquid form. A division bench of the Patna High court in Kesari Mal Jain v. State of Bihar placing reliance on Nelsons Dictionary of Mining which defined Slurry as "slurry inter alia means fine carbonaceous discharge from a colliery washery" held that the carbonaceous particles so discharged from the coal washery is used for producing energy or heat therefore it was coal. The bench further held that coal particles which flow out with the water from the coal washeries are formed into balls or briquettes for sale in the market for purposes of producing energy or heat, therefore, slurry was coal. The Division benchs view was not accepted by the full bench of the Patna High court as it held that the slurry deposit did not constitute a mineral. We agree with the view taken by the division bench in Kesari Mat case" as in our opinion the slurry coal deposited in the river bed or land, in substance as well as in its character continues to behave already discussed the characteristic of slurry which shows that the coal can be transported in liquid form of slurry. The slurry which gets deposited on the river bed and on raiyati land contains fine particles of coal, on its resumption it is used for energy and fuel purposes. It is, therefore, difficult to accept the contention that the coal particles which escape from the washery and get deposited in the river bed or in raiyati land do not have the character of mineral. It is not, however, open to the State to raise this contention as while making settlement and granting lease in favour of the respondents for lifting or collecting slurry deposits the State itself proceeded on the assumption that the coal particles as deposited in the river bed and in the raiyati land on its escape from the coal washeries constituted mineral. Since under the Bihar Land Reforms Act the minerals vest in the State, it claimed right to grant lease in favour of the respondents for collecting the same. In the indenture of settlement dated 9/04/1975 granted in favour of the M/s Industrial Fuel Marketing Company and others in Civil Nos.of 1987 the State government itself stated: "and whereas these rejects/sludge being a mineral (emphasis supplied) the State government is the owner of the same by virtue of the entire State including the minerals having vested in the State government under the provisions of Bihar Land Reforms Act". The indenture purported to confer right on the lessee for lifting rejects also known as sludge comprising fine particles of coal which are ejected in the process of coal being washed in the coal washeries and which flow into the nearby river or to the lands held by the raiyats. The lease was granted by the Mining Department of the State government dealing with minerals. Similarly, the indenture of settlement dated 9/04/1981 granted in favour of respondent 4 in Civil Appeal Nos.of 1987 permitting him to collect slurry after it is deposited in the river bed or in the land as specified in the lease, was also executed by the State of Bihar on the premise that the slurry as deposited in the river bed was a mineral, namely, coal. Thus, it is apparent that the State of Bihar itself has been treating the Slurry deposits as mineral and on that assumption it has been executing leases conferring rights on the respondents to collect the same on payment of royalty. In this view, it is not open to the State of Bihar and the lessees to contend that slurry is not coal or mineral within the meaning of theLEARNED counsel for the respondents attempted to justify States action on the ground that the slurry as settled down in river bed or in raiyati land was not waste or industrial effluent of coal mines as the washeries are not part of coal mines. We find no merit in the submission. S. 3 of the Act defines mining operations which means any operation undertaken for the purpose of winning any mineral. The expression mine is not defined by the Act instead S. 3 (i) says that the expression mine has the same meaning as assigned to it inthe Mines Act, 1952. mine as defined by S. 2 (l) (j) of Mines Act, 1952 means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and it includes: (XII) "any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on. "the inclusive definition of mine is wide enough to include any premises belonging to a mine where any ancillary process is carried on for preparing the minerals or coke for sale. There is no dispute between the parties that the coal as extracted from the coal mine is crushed into pieces and thereafter it is washed to remove its impurities and ash contents to make the coal fit for sale. After the coal is washed, it assumes the form of coke which is sold to consumers. The washery, wherein the process of washing coal is carried on, for the purpose of preparing the coal for sale is an integral part of a mine as it involves ancillary process. Washery is included within the definition of mine underthe Mines Act, 1952. Any waste discharge from the washery carrying small particles of coal in the form of slurry is the waste slime arising from operations carried out in a mine.(22) MOREOVER, it is not open to the respondents to contend that slurry is not a waste discharged from the washeries of coal mines. The respondents have all along pleaded before the High court as well as before this court that slurry is a waste discharged from the washery of the appellants coal mines. In Civil No. 4521 of 1986 Ram Nath Singh respondent 4 has stated in paragraph 2 of his affidavit before this court that slurry/sludge is a waste substance of Sudamdih coal washery and in order to keep the river water clean and pollution free and to earn revenue the State government settled the collection of slurry from the river bed in his favour. The State of Bihar also in its affidavit filed before the High court expressly stated that the sludge/slurry was rejected property from the coal washery and the State of Bihar made settlement in favour of the respondents for collection of the waste deposits from the river bed and other land. The full bench of the Patna High court also observed: "the sludge/slurry could not be raised to the status of being coal, as it was the consequential wastes of coal mining process, therefore the true nature of slurry was that it was a mere residue reject or waste of an industrial process consisting of mud, ash, oily substances, water and carbonaceous ingredients. " The respondents have all along proceeded on the assumption that sludge/slurry was an industrial waste arising out of the mining operations of coal. The State of Bihar as well as the respondents in whose favour the right of collection of sludge/slurry has been settled have all along taken the stand that the discharge of slurry/sludge by the appellants washery into the river has been polluting the river and affecting the fertility of land, therefore the State government, permitted the removal of the slurry/sludge with a view to prevent pollution of the river and the land. On the admitted facts the entire activity relating to disposal of the industrial waste, slime or tailing in the shape of sludge/slurry escaping from the washeries of the appellants coal mines including the prevention of pollution of river water or land is covered by S. 18 of the Act. The High courts confined themselves to the question whether sludge/slurry was a mineral under the Act and failed to consider the scope and effect of S. 18 of the Act. We are therefore of the opinion that in view of the admitted case of the parties disposal of sludge/slurry coming out from the washeries of appellants coal mines is covered by the Act and the State government had no authority in law to grant any lease or settlement authorising collection of the same from the river bed or from any other land. Consequently, the respondents in whose favour settlements have been made by the State government have no right or authority to collect sludge/slurry either from the river bed or from any other land.(23) IN Civil No. 4521 of 1986 the appellants claim that plot No. 370 situated in village Sudamdih belonged to them and the sludge/slurry discharged from their washery as settled down on that land also belonged to them therefore the State government had no authorityin law to permit respondents to collect slurry coal from their land. The High court held that since the appellants ownership rights in respect of plot No. 370 of village Sudamdih was seriously disputed the question should be decided by the civil court. Mr Kapil Sibal learned counsel for the appellant urged that the High court committed serious error as there was no scope for any dispute regarding the question of ownership of plot No. 370. We find force in his submission. There is sufficient material on record to show that Bharat Coking Coal Ltd. is the owner of the plot No. 370 situated at village Sudamdih and the respondents have failed to place any material before the court that the appellant is not owner of plot No. 370. A Notification was issued by the central government on 6/08/1960 under Ss. (1 of S. 4 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957, for purpose of prospecting coal in the land specified in the Schedule to the notification included the entire land of village Sudamdih District Dhanbad. By another Notification dated 30/08/1961 issued under S. 7 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 the central government declared its intention to acquire the lands measuring 778. 45 acres specified in Schedule A to the notification Sudamdih village was mentioned in the Schedule. Plot No. 370 of Sudamdih was expressly specified therein. By another Notification dated 16/12/1961 the central government declared under S. 9 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 that the land measuring 778. 45 acres described in Schedule A and the rights to mine, quarry, bore, dig and search for win work and carry away minerals in the lands measuring 625. 73 acres described in Schedule B are acquired. The Schedule to the notification clearly stated that all rights in village Sudamdih were acquired and plot No. 370 was expressly specified in the Schedule to the notification. On the issue of the aforesaid notifications the lands specified therein vested in the central government. The central government by its order dated 27/01/1962 transferred the aforesaid lands including plot No. 370 situated in village Sudamdih to National Coal Development Corporation, a government undertaking. In 1975 the central government reorganised the management structure of the coal industry in the public sector and a central company, i. e. Coal India Limited, was constituted having Bharat Coking Coal Limited as one of its subsidiaries. Bharat Coking Coal Ltd. was incorporated for running and managing the Sudamdih and Monidih coal mines of National Development Corporation. Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat Coking Coal Ltd. During the pendency of the appeal before this court proceedings were initiated against respondent 4 for the violation of interim orders of this court. In the contempt proceedings respondent 4 contended that plot No. 370 of village Sudamdih belonged to the State of Bihar and the appellants had no ownership rights therein. This court held that since plot No. 370 of Sudamdih has been acquired under S. 9 (1 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 the appellant company was its owner, and it was idle to contend the contrary. We therefore hold that the appellant is the owner of plot No. 370 of village Sudamdih and the State government had no authority in law to make any arrangement or to settle any right with respondents for collecting slurry deposits from that plot No. 370 of Sudamdih.(24) IN view of the above discussion, we hold that the slurry which escapes from the appellants washeries is mineral and its regulation is within the exclusive jurisdiction of the central government. We further hold that in view of the Parliamentary declaration made by S. 2 of the Act and having regard to S. 18 of the Act and State government has no authority in law to make a settlement or grant any lease to any person for the collection of slurry deposits either from the river bed or other land. The impugned settlements made in favour of the respondents by the State government are illegal and the respondent-lessees have no right or title to collect the slurry deposits, therefore, they are restrained from lifting or collecting the same from the land in dispute. | 1 | 9,722 | 2,470 | ### 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:
right of collection of sludge/slurry has been settled have all along taken the stand that the discharge of slurry/sludge by the appellants washery into the river has been polluting the river and affecting the fertility of land, therefore the State government, permitted the removal of the slurry/sludge with a view to prevent pollution of the river and the land. On the admitted facts the entire activity relating to disposal of the industrial waste, slime or tailing in the shape of sludge/slurry escaping from the washeries of the appellants coal mines including the prevention of pollution of river water or land is covered by S. 18 of the Act. The High courts confined themselves to the question whether sludge/slurry was a mineral under the Act and failed to consider the scope and effect of S. 18 of the Act. We are therefore of the opinion that in view of the admitted case of the parties disposal of sludge/slurry coming out from the washeries of appellants coal mines is covered by the Act and the State government had no authority in law to grant any lease or settlement authorising collection of the same from the river bed or from any other land. Consequently, the respondents in whose favour settlements have been made by the State government have no right or authority to collect sludge/slurry either from the river bed or from any other land.(23) IN Civil No. 4521 of 1986 the appellants claim that plot No. 370 situated in village Sudamdih belonged to them and the sludge/slurry discharged from their washery as settled down on that land also belonged to them therefore the State government had no authorityin law to permit respondents to collect slurry coal from their land. The High court held that since the appellants ownership rights in respect of plot No. 370 of village Sudamdih was seriously disputed the question should be decided by the civil court. Mr Kapil Sibal learned counsel for the appellant urged that the High court committed serious error as there was no scope for any dispute regarding the question of ownership of plot No. 370. We find force in his submission. There is sufficient material on record to show that Bharat Coking Coal Ltd. is the owner of the plot No. 370 situated at village Sudamdih and the respondents have failed to place any material before the court that the appellant is not owner of plot No. 370. A Notification was issued by the central government on 6/08/1960 under Ss. (1 of S. 4 of the Coal Bearing Areas (Acquisition and Development) Act, 1957, for purpose of prospecting coal in the land specified in the Schedule to the notification included the entire land of village Sudamdih District Dhanbad. By another Notification dated 30/08/1961 issued under S. 7 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 the central government declared its intention to acquire the lands measuring 778. 45 acres specified in Schedule A to the notification Sudamdih village was mentioned in the Schedule. Plot No. 370 of Sudamdih was expressly specified therein. By another Notification dated 16/12/1961 the central government declared under S. 9 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 that the land measuring 778. 45 acres described in Schedule A and the rights to mine, quarry, bore, dig and search for win work and carry away minerals in the lands measuring 625. 73 acres described in Schedule B are acquired. The Schedule to the notification clearly stated that all rights in village Sudamdih were acquired and plot No. 370 was expressly specified in the Schedule to the notification. On the issue of the aforesaid notifications the lands specified therein vested in the central government. The central government by its order dated 27/01/1962 transferred the aforesaid lands including plot No. 370 situated in village Sudamdih to National Coal Development Corporation, a government undertaking. In 1975 the central government reorganised the management structure of the coal industry in the public sector and a central company, i. e. Coal India Limited, was constituted having Bharat Coking Coal Limited as one of its subsidiaries. Bharat Coking Coal Ltd. was incorporated for running and managing the Sudamdih and Monidih coal mines of National Development Corporation. Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat Coking Coal Ltd. During the pendency of the appeal before this court proceedings were initiated against respondent 4 for the violation of interim orders of this court. In the contempt proceedings respondent 4 contended that plot No. 370 of village Sudamdih belonged to the State of Bihar and the appellants had no ownership rights therein. This court held that since plot No. 370 of Sudamdih has been acquired under S. 9 (1 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 the appellant company was its owner, and it was idle to contend the contrary. We therefore hold that the appellant is the owner of plot No. 370 of village Sudamdih and the State government had no authority in law to make any arrangement or to settle any right with respondents for collecting slurry deposits from that plot No. 370 of Sudamdih.(24) IN view of the above discussion, we hold that the slurry which escapes from the appellants washeries is mineral and its regulation is within the exclusive jurisdiction of the central government. We further hold that in view of the Parliamentary declaration made by S. 2 of the Act and having regard to S. 18 of the Act and State government has no authority in law to make a settlement or grant any lease to any person for the collection of slurry deposits either from the river bed or other land. The impugned settlements made in favour of the respondents by the State government are illegal and the respondent-lessees have no right or title to collect the slurry deposits, therefore, they are restrained from lifting or collecting the same from the land in dispute.
### Response:
1
### Explanation:
in whose favour the right of collection of sludge/slurry has been settled have all along taken the stand that the discharge of slurry/sludge by the appellants washery into the river has been polluting the river and affecting the fertility of land, therefore the State government, permitted the removal of the slurry/sludge with a view to prevent pollution of the river and the land. On the admitted facts the entire activity relating to disposal of the industrial waste, slime or tailing in the shape of sludge/slurry escaping from the washeries of the appellants coal mines including the prevention of pollution of river water or land is covered by S. 18 of the Act. The High courts confined themselves to the question whether sludge/slurry was a mineral under the Act and failed to consider the scope and effect of S. 18 of the Act. We are therefore of the opinion that in view of the admitted case of the parties disposal of sludge/slurry coming out from the washeries of appellants coal mines is covered by the Act and the State government had no authority in law to grant any lease or settlement authorising collection of the same from the river bed or from any other land. Consequently, the respondents in whose favour settlements have been made by the State government have no right or authority to collect sludge/slurry either from the river bed or from any other land.(23) IN Civil No. 4521 of 1986 the appellants claim that plot No. 370 situated in village Sudamdih belonged to them and the sludge/slurry discharged from their washery as settled down on that land also belonged to them therefore the State government had no authorityin law to permit respondents to collect slurry coal from their land. The High court held that since the appellants ownership rights in respect of plot No. 370 of village Sudamdih was seriously disputed the question should be decided by the civil court. Mr Kapil Sibal learned counsel for the appellant urged that the High court committed serious error as there was no scope for any dispute regarding the question of ownership of plot No. 370. We find force in his submission. There is sufficient material on record to show that Bharat Coking Coal Ltd. is the owner of the plot No. 370 situated at village Sudamdih and the respondents have failed to place any material before the court that the appellant is not owner of plot No. 370. A Notification was issued by the central government on 6/08/1960 under Ss. (1 of S. 4 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957, for purpose of prospecting coal in the land specified in the Schedule to the notification included the entire land of village Sudamdih District Dhanbad. By another Notification dated 30/08/1961 issued under S. 7 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 the central government declared its intention to acquire the lands measuring 778. 45 acres specified in Schedule A to the notification Sudamdih village was mentioned in the Schedule. Plot No. 370 of Sudamdih was expressly specified therein. By another Notification dated 16/12/1961 the central government declared under S. 9 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 that the land measuring 778. 45 acres described in Schedule A and the rights to mine, quarry, bore, dig and search for win work and carry away minerals in the lands measuring 625. 73 acres described in Schedule B are acquired. The Schedule to the notification clearly stated that all rights in village Sudamdih were acquired and plot No. 370 was expressly specified in the Schedule to the notification. On the issue of the aforesaid notifications the lands specified therein vested in the central government. The central government by its order dated 27/01/1962 transferred the aforesaid lands including plot No. 370 situated in village Sudamdih to National Coal Development Corporation, a government undertaking. In 1975 the central government reorganised the management structure of the coal industry in the public sector and a central company, i. e. Coal India Limited, was constituted having Bharat Coking Coal Limited as one of its subsidiaries. Bharat Coking Coal Ltd. was incorporated for running and managing the Sudamdih and Monidih coal mines of National Development Corporation. Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat Coking Coal Ltd. During the pendency of the appeal before this court proceedings were initiated against respondent 4 for the violation of interim orders of this court. In the contempt proceedings respondent 4 contended that plot No. 370 of village Sudamdih belonged to the State of Bihar and the appellants had no ownership rights therein. This court held that since plot No. 370 of Sudamdih has been acquired under S. 9 (1 ofthe Coal Bearing Areas (Acquisition and Development) Act, 1957 the appellant company was its owner, and it was idle to contend the contrary. We therefore hold that the appellant is the owner of plot No. 370 of village Sudamdih and the State government had no authority in law to make any arrangement or to settle any right with respondents for collecting slurry deposits from that plot No. 370 of Sudamdih.(24) IN view of the above discussion, we hold that the slurry which escapes from the appellants washeries is mineral and its regulation is within the exclusive jurisdiction of the central government. We further hold that in view of the Parliamentary declaration made by S. 2 of the Act and having regard to S. 18 of the Act and State government has no authority in law to make a settlement or grant any lease to any person for the collection of slurry deposits either from the river bed or other land. The impugned settlements made in favour of the respondents by the State government are illegal and the respondent-lessees have no right or title to collect the slurry deposits, therefore, they are restrained from lifting or collecting the same from the land in dispute.
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Raja Jagadambika Pratap Narain Singh of Ayodhya, Dist. Faizabad, U.P Vs. Deputy Commissioner (Assessing Authority) Faizabad | incomes of the previous year of every person. Section 5 provides the mode of determination of agricultural income while Section 6 deals with the computation of agricultural income. 7. An amendment was made in the Act by amending Act XIV of 1953. The amendment reads as under : Whereas doubts have arisen as to the liability of a person to assessment of Agricultural Income Tax under the Principle Act whether such person while owning or holding property in the previous year has ceased to own or hold it subsequently, it is hereby declared that the words owing and holding property in clause (11) of Section 2 of the principal Act shall be deemed never to have required such person to continue to own or hold the property in the year for which the tax is to be charged. 8. Section 3 of the Act referred to above imposes liability on a person for payment of agricultural income-tax and super-tax on his total agricultural income for the previous year. It is not disputed that the income in respect of which the appellant is sought to be assessed under the Act was part of his total agricultural income of the previous year. The point of controversy between the parties is as to whether appellant can be considered to be a person in respect of that income. Person, according to the definition reproduced above, includes an individual owning or holding property for himself. The appellant during the previous years as also the corresponding assessment years in question undoubtedly held property in the shape of agricultural land. As such he answered to the description of person as defined in the Act. The definition does not lend support to the view that an individual would constitute a person in respect of one item of agricultural income in the previous year and would not be a person in respect of other item of agricultural income. Such splitting of the personality of the individual, as defined in the Act, is not warranted by the language of the statute. Once the individual is a person his liability to pay agricultural income-tax and super-tax would arise, subject to other conditions with which we are not concerned, and would extend to the entire total agricultural income derived by him during the previous year. 9. It is significant that the liability of a person to pay agricultural income-tax or super-tax which has been created by the Act is in respect of his total agricultural income for the previous year. There has to be one single integrated assessment for all items of agricultural income, the aggregate of which constitutes total agricultural income. It is not contemplated by the Act that there should be separate assessments in a year for each item of agricultural income derived from different areas of agricultural land. Nor would the fact that the part of the agricultural land, income from which is included in the total agricultural income, was not owned or held by the assessee in the previous year justify its exclusion from the total agricultural income of the previous year, if such income was in fact received by the assessee during that year. 10. The explanation inserted (sic) by the amending Act of 1953 does not, in our opinion, lend any assistance to the appellant. The explanation sought to clarify the doubt which had arisen as to the liability of a person to assessment of agricultural incomes under the Act, in case such a person while owning or holding property in the previous year had subsequently ceased to own or hold that property subsequently. It was declared by the explanation that the words "owning or holding property" in the definition of the person contained in clause (11) of Section 2 of the Act should be deemed never to have required such a person to continue to own or hold the property in the year for which the tax was to be charged. The explanation is an enabling provision and the effect of it is that even if a person ceased to own or hold property in the year for which the tax is to be charged he would still liable provided other conditions are fulfilled. 11. Reliance has been placed by Mr. Manchanda upon the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row, C.I.T., Bombay City I (61 ITR 428 : 1966 Supp I SCR 295 : AIR 1967 SC 193 ) with a view to show that liability to pay tax is subject to the provisions of the statute. The above dictum cannot be of much assistance to the appellant in this case because the liability for payment of tax in respect of his total agricultural income which is sought to be fastened upon the appellant is in accordance with the provisions of the Act. 12. The Act is a local enactment of which the provisions applied only to Uttar Pradesh. The weight of authorities of Allahabad High Court is against the appellant. Leaving aside the decision in the case of F. P. Sahai v. Dy. Commissioner (Assessing Authority) (1961 ALJ 880) which was affirmed on appeal by Division Bench, we find that three decisions of Division Bench, two decisions of Single Bench and one decision of the Full Bench (which is the subject-matter of the present appeal) have taken the view against that canvassed on behalf of the appellant. The three Division Bench decisions are : 1. Kunwar Trivikram Narain Singh v. State of Uttar Pradesh (1959 ALJ 796) 2 . Raj Laxmi Devi v. State of Uttar Pradesh (Misc. Case (A.I.T.) 299 of 1959 decided on April 22, 1966 (All) 3. Raja Anand Brahmn Shah v. State (Agricultural Income-tax Reference 9 of 1965 connected with Agricultural Income-tax Reference 10 of 1965 decided on January 2, 1969 (All) The two Single Bench decision are : 1. Kishwar Jahan Begam widow of Mohammad Badrul Hasan Khan v. Agricultural Income-tax Officer, Pilibhit (1955 ALJ 322 2. Radhey Shyam v. Agricultural Income-tax Officer (1955 ALJ 325) | 1[ds]10. The explanation inserted (sic) by the amending Act of 1953 does not, in our opinion, lend any assistance to the appellant. The explanation sought to clarify the doubt which had arisen as to the liability of a person to assessment of agricultural incomes under the Act, in case such a person while owning or holding property in the previous year had subsequently ceased to own or hold that property subsequently. It was declared by the explanation that the words "owning or holding property" in the definition of the person contained in clause (11) of Section 2 of the Act should be deemed never to have required such a person to continue to own or hold the property in the year for which the tax was to be charged. The explanation is an enabling provision and the effect of it is that even if a person ceased to own or hold property in the year for which the tax is to be charged he would still liable provided other conditions are fulfilled11. Reliance has been placed by Mr. Manchanda upon the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row, C.I.T., Bombay City I (61 ITR 428 : 1966 Supp I SCR 295 : AIR 1967 SC 193 ) with a view to show that liability to pay tax is subject to the provisions of the statute. The above dictum cannot be of much assistance to the appellant in this case because the liability for payment of tax in respect of his total agricultural income which is sought to be fastened upon the appellant is in accordance with the provisions of the Act. | 1 | 1,995 | 298 | ### 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:
incomes of the previous year of every person. Section 5 provides the mode of determination of agricultural income while Section 6 deals with the computation of agricultural income. 7. An amendment was made in the Act by amending Act XIV of 1953. The amendment reads as under : Whereas doubts have arisen as to the liability of a person to assessment of Agricultural Income Tax under the Principle Act whether such person while owning or holding property in the previous year has ceased to own or hold it subsequently, it is hereby declared that the words owing and holding property in clause (11) of Section 2 of the principal Act shall be deemed never to have required such person to continue to own or hold the property in the year for which the tax is to be charged. 8. Section 3 of the Act referred to above imposes liability on a person for payment of agricultural income-tax and super-tax on his total agricultural income for the previous year. It is not disputed that the income in respect of which the appellant is sought to be assessed under the Act was part of his total agricultural income of the previous year. The point of controversy between the parties is as to whether appellant can be considered to be a person in respect of that income. Person, according to the definition reproduced above, includes an individual owning or holding property for himself. The appellant during the previous years as also the corresponding assessment years in question undoubtedly held property in the shape of agricultural land. As such he answered to the description of person as defined in the Act. The definition does not lend support to the view that an individual would constitute a person in respect of one item of agricultural income in the previous year and would not be a person in respect of other item of agricultural income. Such splitting of the personality of the individual, as defined in the Act, is not warranted by the language of the statute. Once the individual is a person his liability to pay agricultural income-tax and super-tax would arise, subject to other conditions with which we are not concerned, and would extend to the entire total agricultural income derived by him during the previous year. 9. It is significant that the liability of a person to pay agricultural income-tax or super-tax which has been created by the Act is in respect of his total agricultural income for the previous year. There has to be one single integrated assessment for all items of agricultural income, the aggregate of which constitutes total agricultural income. It is not contemplated by the Act that there should be separate assessments in a year for each item of agricultural income derived from different areas of agricultural land. Nor would the fact that the part of the agricultural land, income from which is included in the total agricultural income, was not owned or held by the assessee in the previous year justify its exclusion from the total agricultural income of the previous year, if such income was in fact received by the assessee during that year. 10. The explanation inserted (sic) by the amending Act of 1953 does not, in our opinion, lend any assistance to the appellant. The explanation sought to clarify the doubt which had arisen as to the liability of a person to assessment of agricultural incomes under the Act, in case such a person while owning or holding property in the previous year had subsequently ceased to own or hold that property subsequently. It was declared by the explanation that the words "owning or holding property" in the definition of the person contained in clause (11) of Section 2 of the Act should be deemed never to have required such a person to continue to own or hold the property in the year for which the tax was to be charged. The explanation is an enabling provision and the effect of it is that even if a person ceased to own or hold property in the year for which the tax is to be charged he would still liable provided other conditions are fulfilled. 11. Reliance has been placed by Mr. Manchanda upon the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row, C.I.T., Bombay City I (61 ITR 428 : 1966 Supp I SCR 295 : AIR 1967 SC 193 ) with a view to show that liability to pay tax is subject to the provisions of the statute. The above dictum cannot be of much assistance to the appellant in this case because the liability for payment of tax in respect of his total agricultural income which is sought to be fastened upon the appellant is in accordance with the provisions of the Act. 12. The Act is a local enactment of which the provisions applied only to Uttar Pradesh. The weight of authorities of Allahabad High Court is against the appellant. Leaving aside the decision in the case of F. P. Sahai v. Dy. Commissioner (Assessing Authority) (1961 ALJ 880) which was affirmed on appeal by Division Bench, we find that three decisions of Division Bench, two decisions of Single Bench and one decision of the Full Bench (which is the subject-matter of the present appeal) have taken the view against that canvassed on behalf of the appellant. The three Division Bench decisions are : 1. Kunwar Trivikram Narain Singh v. State of Uttar Pradesh (1959 ALJ 796) 2 . Raj Laxmi Devi v. State of Uttar Pradesh (Misc. Case (A.I.T.) 299 of 1959 decided on April 22, 1966 (All) 3. Raja Anand Brahmn Shah v. State (Agricultural Income-tax Reference 9 of 1965 connected with Agricultural Income-tax Reference 10 of 1965 decided on January 2, 1969 (All) The two Single Bench decision are : 1. Kishwar Jahan Begam widow of Mohammad Badrul Hasan Khan v. Agricultural Income-tax Officer, Pilibhit (1955 ALJ 322 2. Radhey Shyam v. Agricultural Income-tax Officer (1955 ALJ 325)
### Response:
1
### Explanation:
10. The explanation inserted (sic) by the amending Act of 1953 does not, in our opinion, lend any assistance to the appellant. The explanation sought to clarify the doubt which had arisen as to the liability of a person to assessment of agricultural incomes under the Act, in case such a person while owning or holding property in the previous year had subsequently ceased to own or hold that property subsequently. It was declared by the explanation that the words "owning or holding property" in the definition of the person contained in clause (11) of Section 2 of the Act should be deemed never to have required such a person to continue to own or hold the property in the year for which the tax was to be charged. The explanation is an enabling provision and the effect of it is that even if a person ceased to own or hold property in the year for which the tax is to be charged he would still liable provided other conditions are fulfilled11. Reliance has been placed by Mr. Manchanda upon the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row, C.I.T., Bombay City I (61 ITR 428 : 1966 Supp I SCR 295 : AIR 1967 SC 193 ) with a view to show that liability to pay tax is subject to the provisions of the statute. The above dictum cannot be of much assistance to the appellant in this case because the liability for payment of tax in respect of his total agricultural income which is sought to be fastened upon the appellant is in accordance with the provisions of the Act.
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Hari Singh Mann Vs. Harbhajan Singh Bajwa | the respondent No. 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. 9.There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 , held : "Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides. 1958 SCR 1226 : 1958 SC 376, relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in 72 Ind App 120 : AIR 1945 PC 94 (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under Section 561A. In Sankatha Singh v. State of U.P., 1962 Supp(2) SCR 871 : AIR 1962 SC 1208 , this Court held that Section 369 read with Section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of Section 367 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to set it aside itself and re-hear the appeal observing that "Section 369 read with Section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error." Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 , by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopras case, AIR 1955 SC 633 (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code." 10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a mater is finally disposed of by a Court, the said Court in the absence of a specifically statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussains case (supra) is misconceived. Even in that case it was pointed that inherent power conferred on High Court under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. 11. | 1[ds]Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a mater is finally disposed of by a Court, the said Court in the absence of a specifically statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussains case (supra) is misconceived. Even in that case it was pointed that inherent power conferred on High Court under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. | 1 | 2,581 | 298 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the respondent No. 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. 9.There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 , held : "Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides. 1958 SCR 1226 : 1958 SC 376, relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in 72 Ind App 120 : AIR 1945 PC 94 (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under Section 561A. In Sankatha Singh v. State of U.P., 1962 Supp(2) SCR 871 : AIR 1962 SC 1208 , this Court held that Section 369 read with Section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of Section 367 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to set it aside itself and re-hear the appeal observing that "Section 369 read with Section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error." Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 , by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopras case, AIR 1955 SC 633 (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code." 10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a mater is finally disposed of by a Court, the said Court in the absence of a specifically statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussains case (supra) is misconceived. Even in that case it was pointed that inherent power conferred on High Court under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. 11.
### Response:
1
### Explanation:
Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a mater is finally disposed of by a Court, the said Court in the absence of a specifically statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussains case (supra) is misconceived. Even in that case it was pointed that inherent power conferred on High Court under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.
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U.P. Financial Corporation Vs. Gem Cap (India) Private Limited And Others | in furtherance of the object underlying the Act. But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the cost involved. Promoting industrialisation at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account. The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what is due to it. While not insisting upon the borrower to honour the commitments undertaken by him, the Corporation alone cannot be shackled hand and foot in the name of fairness. Fairness is not a one way street, more particularly in matters like the present one. 8. The above narration of facts shows that the respondents have no intention of repaying any part of the debt. They are merely putting forward one or other ploy to keep the Corporation at bay. Approaching the Courts through successive writ petitions is but a part of this game. Another circumstance. These Corporation are not sitting on King Solomons mines. They too borrow monies from Government or othern financial corporation. They too have to pay in terest thereon. The fairness required of it must be tempered nay, determined, in the light of all these circumstances. Indeed, in a matter between the Corporation and its debtor, a writ court has no say except in two situation: (1) there is a statutory violation on the part of the Corporation or Where the Corporation acts unfairly i.e., unreasonably. While the former does not present any difficulty, the latter needs a little reiteration of its precise meaning. What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an Appellate Authority over the acts and deeds of the corporation and seek 158 to correct them? Surely, it cannot be. That is not the function of the High Court under Article 226. Doctrine of fairness, evolved in administrative law was not supposed to convert the writ courts into appellate authorities over administrative authorities. The constraints self-imposed undoubtedly of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak &Ors. v. Union of India &Ors. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi- judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Counsel). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 (1) KB 229. "It is true the discretion must be exercised reasonably. Now what does than mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the 159 things that must no t be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.While this is not the occasion to examine the content and contours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is not that of an appellate court. The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside. 9. On behalf of the appellant reliance has been placed upon the decision of this court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation &Ors., . We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the corporation was acting reasonably. In that context certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is not relevant in this case. We are, therefore, of the opinion that the said decision is of no help to the appellant herein. 10. | 1[ds]Here was a company which drew substantial public funds and became sick within three months of its going into production. One of the main reasons for its sickness appears to be the inter-necine fight between the two groups controlling the Company.The unit was closed. It was not paying a single pie in repayment of the loan neither the principal nor the interest. Already a huge amount was due to the appellant. There was no prospect of its recovery. And yet other financial corporations were being asked by the court, four years after its closure, to sink more money into the sick unit. Though a passing reference is made to the financial risk of appellant. this concern was not translated into appropriate directions. The Corporation was not allowed to sell the unit when it wanted to in 1984-85. Now, it is difficult to sell it, because it has been lying closed for about 8 years and more. The machinery must have become junk. While the Company could not be revived, the appellant-corporation now stands to lose more than a crore of rupees all public money in this one instance"We have heard learned counsel on both sides. Apart from the merits of the issues raised, it appears to us that the present impasse is to nobodys advantage. The dispute has to be resolved in some meaningful way. We accordingly direct the respondent-Company and Sri K.P. Chaturvedi, who claims to be in- charge of the affairs of the Company, to confirm in writing to the petitioner-Corporation within three weeks from today that they unconditionally agree to settle the claims of the. Financial Corporation at a figure which would represent the principal amount said to be Rs. 26.30 lacs and interest thereon from the inception at 13.5% per year with half yearly rests calculated upto 25.7.1986If such an offer is made, the Financial Corporation will assess the merit and acceptability of that offer and take within six weeks thereafter, an appropriate decision including the manner in which and the period over which the payment should be completed, and if the Financial Corporation agree s to grant time for payment, the rate of interest for the deferred period. The decision taken by the Corporation will be placed before this Court.If, however, a ny offer, as indicated above, is not communicated by the company or Sri Chaturvedi within a period of three weeks from today, then the Financial Corporation shall be at liberty to initiate, with notice to the respondents, steps for the sale by public auction of the subjectmatter of the security in its favour and to treat and hold the proceeds of sale as substituted security in the place of the subject-matter of the security, subject to the final result of this S.L.P. Call this matter in the 3rd week of May, 1992."On behalf of the appellant reliance has been placed upon the decision of this court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation &Ors., . We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the corporation was acting reasonably. In that context certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is not relevant in this case. We are, therefore, of the opinion that the said decision is of no help to the appellant herein | 1 | 3,246 | 656 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
in furtherance of the object underlying the Act. But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the cost involved. Promoting industrialisation at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account. The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what is due to it. While not insisting upon the borrower to honour the commitments undertaken by him, the Corporation alone cannot be shackled hand and foot in the name of fairness. Fairness is not a one way street, more particularly in matters like the present one. 8. The above narration of facts shows that the respondents have no intention of repaying any part of the debt. They are merely putting forward one or other ploy to keep the Corporation at bay. Approaching the Courts through successive writ petitions is but a part of this game. Another circumstance. These Corporation are not sitting on King Solomons mines. They too borrow monies from Government or othern financial corporation. They too have to pay in terest thereon. The fairness required of it must be tempered nay, determined, in the light of all these circumstances. Indeed, in a matter between the Corporation and its debtor, a writ court has no say except in two situation: (1) there is a statutory violation on the part of the Corporation or Where the Corporation acts unfairly i.e., unreasonably. While the former does not present any difficulty, the latter needs a little reiteration of its precise meaning. What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an Appellate Authority over the acts and deeds of the corporation and seek 158 to correct them? Surely, it cannot be. That is not the function of the High Court under Article 226. Doctrine of fairness, evolved in administrative law was not supposed to convert the writ courts into appellate authorities over administrative authorities. The constraints self-imposed undoubtedly of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak &Ors. v. Union of India &Ors. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi- judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Counsel). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 (1) KB 229. "It is true the discretion must be exercised reasonably. Now what does than mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the 159 things that must no t be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.While this is not the occasion to examine the content and contours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is not that of an appellate court. The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside. 9. On behalf of the appellant reliance has been placed upon the decision of this court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation &Ors., . We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the corporation was acting reasonably. In that context certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is not relevant in this case. We are, therefore, of the opinion that the said decision is of no help to the appellant herein. 10.
### Response:
1
### Explanation:
Here was a company which drew substantial public funds and became sick within three months of its going into production. One of the main reasons for its sickness appears to be the inter-necine fight between the two groups controlling the Company.The unit was closed. It was not paying a single pie in repayment of the loan neither the principal nor the interest. Already a huge amount was due to the appellant. There was no prospect of its recovery. And yet other financial corporations were being asked by the court, four years after its closure, to sink more money into the sick unit. Though a passing reference is made to the financial risk of appellant. this concern was not translated into appropriate directions. The Corporation was not allowed to sell the unit when it wanted to in 1984-85. Now, it is difficult to sell it, because it has been lying closed for about 8 years and more. The machinery must have become junk. While the Company could not be revived, the appellant-corporation now stands to lose more than a crore of rupees all public money in this one instance"We have heard learned counsel on both sides. Apart from the merits of the issues raised, it appears to us that the present impasse is to nobodys advantage. The dispute has to be resolved in some meaningful way. We accordingly direct the respondent-Company and Sri K.P. Chaturvedi, who claims to be in- charge of the affairs of the Company, to confirm in writing to the petitioner-Corporation within three weeks from today that they unconditionally agree to settle the claims of the. Financial Corporation at a figure which would represent the principal amount said to be Rs. 26.30 lacs and interest thereon from the inception at 13.5% per year with half yearly rests calculated upto 25.7.1986If such an offer is made, the Financial Corporation will assess the merit and acceptability of that offer and take within six weeks thereafter, an appropriate decision including the manner in which and the period over which the payment should be completed, and if the Financial Corporation agree s to grant time for payment, the rate of interest for the deferred period. The decision taken by the Corporation will be placed before this Court.If, however, a ny offer, as indicated above, is not communicated by the company or Sri Chaturvedi within a period of three weeks from today, then the Financial Corporation shall be at liberty to initiate, with notice to the respondents, steps for the sale by public auction of the subjectmatter of the security in its favour and to treat and hold the proceeds of sale as substituted security in the place of the subject-matter of the security, subject to the final result of this S.L.P. Call this matter in the 3rd week of May, 1992."On behalf of the appellant reliance has been placed upon the decision of this court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation &Ors., . We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the corporation was acting reasonably. In that context certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is not relevant in this case. We are, therefore, of the opinion that the said decision is of no help to the appellant herein
|
Gagan Kanojia & Another Vs. State of Punjab | - AIR 1960 SC 490 para 13; and George and Others v. State of Kerala and Another (1998) 4 SCC 605 para 36]. He was not examined by the prosecution. He might not have been examined for good reasons. At one point of time, he might have been sure about the involvement of his son, but at a later stage, he would have thought not to depose against him. 25. In a case of this nature, it was also not expected that the family members of Appellant No.1 would depose against him, as regards recovery of clothes which were recovered from his own house. The prosecution furthermore has brought on record the recovery of trouser and shirt of the accused. The colour of the said garments is not in dispute. The fact that the same were not belonging to him has also not been canvassed before us. Place of kidnapping has also not been disputed before us. Apart from PW-4, PW-11 is also a witness to the said fact Recoveries of school bags of the deceased children and their dead bodies have also been proved, which have neither been denied nor disputed before us. 26. We may notice now that the recovery had also been made of empty bottles and glasses. The said recovery has been proved by Sub Inspector Baldev Singh, PW-17. PW-10, Rakesh Kumar, stated in his evidence that Deep Public School from whose Ahata the empty bottle and glasses had been recovered was at a distance of 100 yards from the place wherefrom the dead bodies of the children were recovered. PW-20, Inspector Nirmal Singh, recovered empty bottle of liquor containing a few drops thereof as also two glasses. PW-16, Sub Inspector Hardeep Singh, found the traces of finger prints on those articles. He developed the finger prints on the glasses, which were comparable. They were sent to the Finger Print Bureau, Phillaur and the report, which was marked as Ex.PHHH, revealed that the thumb impression lifted from the glasses by PW-16 and thumb impression obtained from the appellants herein tallied with each other. 27. A letter was received by PW-3, Kamal Kishore, on 09.06.2000 wherein a sum of Rs.10 lakhs was demanded by way of ransom. It also bore a postal stamp. PW-3 was asked to tie a cloth of red colour on the roof of his house, which would be an indication to show that he was ready to pay the amount. The said letter was marked as Ex.PT. Thereafter specimen signature of the handwriting of both the accused were obtained under the order of Shri H.S. Grewal, Judicial Magistrate, First Class, who examined himself as PW-12; and the same was sent to an handwriting expert Shri Balwinder Singh Bhandal, who examined himself as PW-21. He submitted a report which was marked as Ex. PJJ, stating that the said letter was in the handwriting of Appellant No.2. 28. Another important circumstance which weighed with the learned Trial Judge as also the High Court was the recovery of a camera from the bed-box of Appellant No. 1 as also remaining part of the dirty white cloth with which the arms of both the children were tied had been kept concealed therein. He furthermore disclosed that the deck with two speakers were also kept concealed in the same room on the Angeethi and the said house was locked by him and he had kept concealed the keys of the said house near the outer gate underneath the same bricks. His disclosure statement was recorded and thereafter recoveries were made, which was proved by the investigating officer, Inspector Nirmal Singh, PW-20. His statement were corroborated by ASI Mohinder Singh. A cello tape was also recovered which was used by the accused for pasting on the mouth and nose of both the victims and for tying the plastic envelopes which were put on the faces of both the children. 29. Recoveries of the said articles were made pursuant to the information given by Appellant No. 1. The information given by Appellant No.1 led to discovery of some facts. Discovery of some facts on the information furnished by Appellant No.1 is a relevant fact within the meaning of Section 27 of the Indian Penal Code. It is, therefore, admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of corroboration to the extra-judicial confession made by the appellants. 30. It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases. | 0[ds]9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well-settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between may be true and must be true. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively.It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases. | 0 | 4,739 | 550 | ### 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:
- AIR 1960 SC 490 para 13; and George and Others v. State of Kerala and Another (1998) 4 SCC 605 para 36]. He was not examined by the prosecution. He might not have been examined for good reasons. At one point of time, he might have been sure about the involvement of his son, but at a later stage, he would have thought not to depose against him. 25. In a case of this nature, it was also not expected that the family members of Appellant No.1 would depose against him, as regards recovery of clothes which were recovered from his own house. The prosecution furthermore has brought on record the recovery of trouser and shirt of the accused. The colour of the said garments is not in dispute. The fact that the same were not belonging to him has also not been canvassed before us. Place of kidnapping has also not been disputed before us. Apart from PW-4, PW-11 is also a witness to the said fact Recoveries of school bags of the deceased children and their dead bodies have also been proved, which have neither been denied nor disputed before us. 26. We may notice now that the recovery had also been made of empty bottles and glasses. The said recovery has been proved by Sub Inspector Baldev Singh, PW-17. PW-10, Rakesh Kumar, stated in his evidence that Deep Public School from whose Ahata the empty bottle and glasses had been recovered was at a distance of 100 yards from the place wherefrom the dead bodies of the children were recovered. PW-20, Inspector Nirmal Singh, recovered empty bottle of liquor containing a few drops thereof as also two glasses. PW-16, Sub Inspector Hardeep Singh, found the traces of finger prints on those articles. He developed the finger prints on the glasses, which were comparable. They were sent to the Finger Print Bureau, Phillaur and the report, which was marked as Ex.PHHH, revealed that the thumb impression lifted from the glasses by PW-16 and thumb impression obtained from the appellants herein tallied with each other. 27. A letter was received by PW-3, Kamal Kishore, on 09.06.2000 wherein a sum of Rs.10 lakhs was demanded by way of ransom. It also bore a postal stamp. PW-3 was asked to tie a cloth of red colour on the roof of his house, which would be an indication to show that he was ready to pay the amount. The said letter was marked as Ex.PT. Thereafter specimen signature of the handwriting of both the accused were obtained under the order of Shri H.S. Grewal, Judicial Magistrate, First Class, who examined himself as PW-12; and the same was sent to an handwriting expert Shri Balwinder Singh Bhandal, who examined himself as PW-21. He submitted a report which was marked as Ex. PJJ, stating that the said letter was in the handwriting of Appellant No.2. 28. Another important circumstance which weighed with the learned Trial Judge as also the High Court was the recovery of a camera from the bed-box of Appellant No. 1 as also remaining part of the dirty white cloth with which the arms of both the children were tied had been kept concealed therein. He furthermore disclosed that the deck with two speakers were also kept concealed in the same room on the Angeethi and the said house was locked by him and he had kept concealed the keys of the said house near the outer gate underneath the same bricks. His disclosure statement was recorded and thereafter recoveries were made, which was proved by the investigating officer, Inspector Nirmal Singh, PW-20. His statement were corroborated by ASI Mohinder Singh. A cello tape was also recovered which was used by the accused for pasting on the mouth and nose of both the victims and for tying the plastic envelopes which were put on the faces of both the children. 29. Recoveries of the said articles were made pursuant to the information given by Appellant No. 1. The information given by Appellant No.1 led to discovery of some facts. Discovery of some facts on the information furnished by Appellant No.1 is a relevant fact within the meaning of Section 27 of the Indian Penal Code. It is, therefore, admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of corroboration to the extra-judicial confession made by the appellants. 30. It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.
### Response:
0
### Explanation:
9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well-settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between may be true and must be true. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively.It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.
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Reena Banerjee Vs. Govt. Of Nct Of Delhi | and all other matters relating to such authority;(b) the class or category of persons for whom separate psychiatric hospitals and psychiatric nursing homes may be established and maintained under clause (d) of sub-section (1) of section 5;(c) . . . . . . . . . . . . . . . . . . . . .. .(d) . . . . . . . . . . . . . . . . . . . . . . .(e) . . . . . . . . . . . . . . . . . . . . . . .(f) the minimum facilities referred to in the proviso to sub-section (5) of section 9 including, -(i) psychiatrist-patient ratio;(ii) other medical or para-medical staff;(iii) space requirement;(iv) treatment facilities; and(iv) equipment:(g) the manner in which and the conditions subject to which a psychiatric hospital or psychiatric nursing home shall be maintained under section 10;(h) . . . . . . . . . . . . . . . . . ..(i) the manner in which records shall be maintained under sub-section (1) of section 13.(j) the facilities to be provided under section 14 of the treatment of a mentally ill person as an out-patient;(k). . . . . . . . . . . . . . . . . . .(l) the qualification of persons who may be appointed as Visitors and the terms and conditions on which they may be appointed, under section 37 and their functions;(m) . . . . . . . . . . . . . . . . . .(n) any other matter which is required to be, or may be, prescribed."19. We have already adverted to Rule 20 of the Rules of 1990 providing for the manner of maintenance of psychiatric hospital and psychiatric nursing home. Besides that provision, it may be useful to refer to Chapter V of the same Rules of 1990, providing for minimum facilities for treatment of patients in the psychiatric hospital and psychiatric nursing home.20. Reverting to the 1995 Act, there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act, no doubt, deals with the aspirations of persons inflicted with disability generally. The expression "disability" is defined in Section 2(i) which includes mental retardation and mental illness. The regime for proper maintenance and upkeep of the Homes established under this Act for mentally challenged persons, would apply proprio vigore. The appropriate Government is not only required to establish such Homes but also to create an environment to impart education to the inmates as predicated in Chapter V of the said Act and also opportunities of employment for the inmates in terms of Chapter VI. Chapter VII of the 1995 Act deals with affirmative action and Chapter VIII stipulates measures for non-discrimination. Chapter IX of the Act obligates the appropriate Government and Local Authorities to promote and sponsor research on matters referred to therein. Chapter XI provides for establishment of an institution for persons with severe disabilities by the appropriate Government. The Chief Commissioner and the Commissioners For Persons with Disabilities are required to be appointed for overseeing the stated matters including regarding the conditions of nursing Homes for mentally ill persons.21. As the attention of this Court was invited to issues concerning institutions established under the 1995 Act in different states, we would first deal with such institutions. The concerned States/Union Territories have filed affidavit disclosing the conditions prevailing in the Homes established under the 1995 Act within their jurisdiction. All those affidavits be placed before the Central Coordination Committee established under the 1995 Act. Similarly, the affidavit of the State concerned be placed before the State Coordination Committee of the concerned State. The said Authorities have ample power to monitor and evaluate the implementation of the programmes including to review and coordinate with the appropriate Government on matters relevant for improvisation of the conditions of the Home within the State or for introducing welfare measures for the inmates therein. Section 8 of 1995 Act obligates the Central Coordination Committee to review and coordinate the activities of all the Departments of the Government and other Governmental and non-Governmental Organizations which are dealing with matters relating to persons with disabilities. The Central Coordination Committee also discharges an advisory role including to develop a national policy to address issues faced by persons with disabilities. It has to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability. As the factual position stated in the affidavits filed by the respective State/Union Territory before this Court will become available to the Central Coordination Committee, it will be in a better position to formulate a comprehensive national policy on matters relevant to address the issues. It may develop a national policy or modify the existing national policy, programmes or schemes, as may be required. That in turn can be implemented at the micro level. The recommendations to be made by the Central Coordination Committee at the micro level must ideally focus on zone wise necessity of the four regions of the country and in particular State wise requirements. Further, on identifying issues about non-implementation or non-compliance, the concerned State Coordination Committee can be directed by the Central Coordination Committee in exercise of its power under Section 23 of the 1995 Act. Section 23 of the 1995 Act reads thus:"23. Power to give directions.- In the performance of its functions under this Act,-(a) the Central Co-ordination Committee shall be bound by such directions in writing, as the Central Government may give to it; and (b) the State Co-ordination Committee shall be bound by such directions in writing, as the Central Co-ordination Committee or the State Government may give to it:Provided that where a direction given by the State Government is inconsistent with any direction given by the Central Co-ordination Committee, the matter shall be referred to the Central Government for its decision". | 0[ds]12. The functions of the Central Executive Committee in terms of Section 10 of 1995 Act, is to carry out the decisions of the Central Coordination Committee as its Executive Body; and also to perform such other functions as may be delegated to it by the Central Coordination Committee. Section 12 of the Act enables the Central Executive Committee to associate with itself any person in such manner for such purposes as may be prescribed by the Central Government, whose assistance or advice it may desire to obtain in performing any of its functions under the Act. A person associated with the Central Executive Committee shall have the right to take part in the discussions of the Central Executive Committee relevant to that purpose, but shall not have a right to vote at a meeting of the said committee, and shall not be a member for any other purpose. Similar dispensation is predicated in respect of State Executive Committee, which has to function as the Executive Body of the State Coordination Committee and is responsible to carry out the decisions of the State Coordination Committee and to perform such other functions as may be delegated to it by the State Coordination Committee. Even the State Executive Committee can associate any person whose assistance or advice may be required in performing any of the functions of the State Executive Committee, in terms of Section 22 of the 1995 Act.13. Besides the dispensation provided in the 1995 Act for the implementation of the avowed objectives of the said Act, we find that the 1987 Act also provides for a comprehensive dispensation to fulfill the objectives of that Act. Under the latter Act, the Central Authority for Mental Health Services is established by the Central Government and the State Authority for Mental Health Services is established by the concerned State Government. The expression "Mental Health Services" has been defined in the Explanation to Section 3 of 1987 Act.Suffice it to observe that the 1995 Act as well as 1987 Act make ample provision for not only establishment of Homes for the admission, treatment and care of mentally ill persons but also about the maintenance and conditions and facilities to be provided to the inmates, to ensure that the Homes are properly equipped and are being run in accordance with the statutory scheme. Authorities for monitoring and supervision are also in place (Central Coordination Committee at the top of the pyramid in so far as Homes established by the Central Government or permitted to be established by it). Similarly, for the Homes established by the State Government or permitted to be established by it, the State Coordination Committee is at the top of the pyramid of the organizational structure within the State. The provisions in the 1987 or 1995 Act and Rules framed thereunder, clearly articulate the manner of providing proper conditions in Hospitals/Homes established under the concerned enactment and also for its maintenance.Reverting to the 1995 Act, there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act, no doubt, deals with the aspirations of persons inflicted with disability generally. The expression "disability" is defined in Section 2(i) which includes mental retardation and mental illness. The regime for proper maintenance and upkeep of the Homes established under this Act for mentally challenged persons, would apply proprio vigore. The appropriate Government is not only required to establish such Homes but also to create an environment to impart education to the inmates as predicated in Chapter V of the said Act and also opportunities of employment for the inmates in terms of Chapter VI. Chapter VII of the 1995 Act deals with affirmative action and Chapter VIII stipulates measures for non-discrimination. Chapter IX of the Act obligates the appropriate Government and Local Authorities to promote and sponsor research on matters referred to therein. Chapter XI provides for establishment of an institution for persons with severe disabilities by the appropriate Government. The Chief Commissioner and the Commissioners For Persons with Disabilities are required to be appointed for overseeing the stated matters including regarding the conditions of nursing Homes for mentally ill persons.From the legislative scheme of 1995 Act, it is amply clear that the State Coordination Committee is primarily responsible for ensuring compliance of the mandate regarding the infrastructure and other facilities to be provided in the Homes established under the 1995 Act and also for overseeing that the same are properly maintained from time to time and comply with the policies and programmes designed for achieving equality and full participation of persons with disabilities. The provisions of the 1995 Act provide for checks and balances for which hierarchy of Authorities have been created to ensure that persons with disabilities are provided with opportunity of full participation and equality in the region. That being the obligation of the State, must be implemented through these | 0 | 8,122 | 871 | ### 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:
and all other matters relating to such authority;(b) the class or category of persons for whom separate psychiatric hospitals and psychiatric nursing homes may be established and maintained under clause (d) of sub-section (1) of section 5;(c) . . . . . . . . . . . . . . . . . . . . .. .(d) . . . . . . . . . . . . . . . . . . . . . . .(e) . . . . . . . . . . . . . . . . . . . . . . .(f) the minimum facilities referred to in the proviso to sub-section (5) of section 9 including, -(i) psychiatrist-patient ratio;(ii) other medical or para-medical staff;(iii) space requirement;(iv) treatment facilities; and(iv) equipment:(g) the manner in which and the conditions subject to which a psychiatric hospital or psychiatric nursing home shall be maintained under section 10;(h) . . . . . . . . . . . . . . . . . ..(i) the manner in which records shall be maintained under sub-section (1) of section 13.(j) the facilities to be provided under section 14 of the treatment of a mentally ill person as an out-patient;(k). . . . . . . . . . . . . . . . . . .(l) the qualification of persons who may be appointed as Visitors and the terms and conditions on which they may be appointed, under section 37 and their functions;(m) . . . . . . . . . . . . . . . . . .(n) any other matter which is required to be, or may be, prescribed."19. We have already adverted to Rule 20 of the Rules of 1990 providing for the manner of maintenance of psychiatric hospital and psychiatric nursing home. Besides that provision, it may be useful to refer to Chapter V of the same Rules of 1990, providing for minimum facilities for treatment of patients in the psychiatric hospital and psychiatric nursing home.20. Reverting to the 1995 Act, there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act, no doubt, deals with the aspirations of persons inflicted with disability generally. The expression "disability" is defined in Section 2(i) which includes mental retardation and mental illness. The regime for proper maintenance and upkeep of the Homes established under this Act for mentally challenged persons, would apply proprio vigore. The appropriate Government is not only required to establish such Homes but also to create an environment to impart education to the inmates as predicated in Chapter V of the said Act and also opportunities of employment for the inmates in terms of Chapter VI. Chapter VII of the 1995 Act deals with affirmative action and Chapter VIII stipulates measures for non-discrimination. Chapter IX of the Act obligates the appropriate Government and Local Authorities to promote and sponsor research on matters referred to therein. Chapter XI provides for establishment of an institution for persons with severe disabilities by the appropriate Government. The Chief Commissioner and the Commissioners For Persons with Disabilities are required to be appointed for overseeing the stated matters including regarding the conditions of nursing Homes for mentally ill persons.21. As the attention of this Court was invited to issues concerning institutions established under the 1995 Act in different states, we would first deal with such institutions. The concerned States/Union Territories have filed affidavit disclosing the conditions prevailing in the Homes established under the 1995 Act within their jurisdiction. All those affidavits be placed before the Central Coordination Committee established under the 1995 Act. Similarly, the affidavit of the State concerned be placed before the State Coordination Committee of the concerned State. The said Authorities have ample power to monitor and evaluate the implementation of the programmes including to review and coordinate with the appropriate Government on matters relevant for improvisation of the conditions of the Home within the State or for introducing welfare measures for the inmates therein. Section 8 of 1995 Act obligates the Central Coordination Committee to review and coordinate the activities of all the Departments of the Government and other Governmental and non-Governmental Organizations which are dealing with matters relating to persons with disabilities. The Central Coordination Committee also discharges an advisory role including to develop a national policy to address issues faced by persons with disabilities. It has to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability. As the factual position stated in the affidavits filed by the respective State/Union Territory before this Court will become available to the Central Coordination Committee, it will be in a better position to formulate a comprehensive national policy on matters relevant to address the issues. It may develop a national policy or modify the existing national policy, programmes or schemes, as may be required. That in turn can be implemented at the micro level. The recommendations to be made by the Central Coordination Committee at the micro level must ideally focus on zone wise necessity of the four regions of the country and in particular State wise requirements. Further, on identifying issues about non-implementation or non-compliance, the concerned State Coordination Committee can be directed by the Central Coordination Committee in exercise of its power under Section 23 of the 1995 Act. Section 23 of the 1995 Act reads thus:"23. Power to give directions.- In the performance of its functions under this Act,-(a) the Central Co-ordination Committee shall be bound by such directions in writing, as the Central Government may give to it; and (b) the State Co-ordination Committee shall be bound by such directions in writing, as the Central Co-ordination Committee or the State Government may give to it:Provided that where a direction given by the State Government is inconsistent with any direction given by the Central Co-ordination Committee, the matter shall be referred to the Central Government for its decision".
### Response:
0
### Explanation:
12. The functions of the Central Executive Committee in terms of Section 10 of 1995 Act, is to carry out the decisions of the Central Coordination Committee as its Executive Body; and also to perform such other functions as may be delegated to it by the Central Coordination Committee. Section 12 of the Act enables the Central Executive Committee to associate with itself any person in such manner for such purposes as may be prescribed by the Central Government, whose assistance or advice it may desire to obtain in performing any of its functions under the Act. A person associated with the Central Executive Committee shall have the right to take part in the discussions of the Central Executive Committee relevant to that purpose, but shall not have a right to vote at a meeting of the said committee, and shall not be a member for any other purpose. Similar dispensation is predicated in respect of State Executive Committee, which has to function as the Executive Body of the State Coordination Committee and is responsible to carry out the decisions of the State Coordination Committee and to perform such other functions as may be delegated to it by the State Coordination Committee. Even the State Executive Committee can associate any person whose assistance or advice may be required in performing any of the functions of the State Executive Committee, in terms of Section 22 of the 1995 Act.13. Besides the dispensation provided in the 1995 Act for the implementation of the avowed objectives of the said Act, we find that the 1987 Act also provides for a comprehensive dispensation to fulfill the objectives of that Act. Under the latter Act, the Central Authority for Mental Health Services is established by the Central Government and the State Authority for Mental Health Services is established by the concerned State Government. The expression "Mental Health Services" has been defined in the Explanation to Section 3 of 1987 Act.Suffice it to observe that the 1995 Act as well as 1987 Act make ample provision for not only establishment of Homes for the admission, treatment and care of mentally ill persons but also about the maintenance and conditions and facilities to be provided to the inmates, to ensure that the Homes are properly equipped and are being run in accordance with the statutory scheme. Authorities for monitoring and supervision are also in place (Central Coordination Committee at the top of the pyramid in so far as Homes established by the Central Government or permitted to be established by it). Similarly, for the Homes established by the State Government or permitted to be established by it, the State Coordination Committee is at the top of the pyramid of the organizational structure within the State. The provisions in the 1987 or 1995 Act and Rules framed thereunder, clearly articulate the manner of providing proper conditions in Hospitals/Homes established under the concerned enactment and also for its maintenance.Reverting to the 1995 Act, there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act, no doubt, deals with the aspirations of persons inflicted with disability generally. The expression "disability" is defined in Section 2(i) which includes mental retardation and mental illness. The regime for proper maintenance and upkeep of the Homes established under this Act for mentally challenged persons, would apply proprio vigore. The appropriate Government is not only required to establish such Homes but also to create an environment to impart education to the inmates as predicated in Chapter V of the said Act and also opportunities of employment for the inmates in terms of Chapter VI. Chapter VII of the 1995 Act deals with affirmative action and Chapter VIII stipulates measures for non-discrimination. Chapter IX of the Act obligates the appropriate Government and Local Authorities to promote and sponsor research on matters referred to therein. Chapter XI provides for establishment of an institution for persons with severe disabilities by the appropriate Government. The Chief Commissioner and the Commissioners For Persons with Disabilities are required to be appointed for overseeing the stated matters including regarding the conditions of nursing Homes for mentally ill persons.From the legislative scheme of 1995 Act, it is amply clear that the State Coordination Committee is primarily responsible for ensuring compliance of the mandate regarding the infrastructure and other facilities to be provided in the Homes established under the 1995 Act and also for overseeing that the same are properly maintained from time to time and comply with the policies and programmes designed for achieving equality and full participation of persons with disabilities. The provisions of the 1995 Act provide for checks and balances for which hierarchy of Authorities have been created to ensure that persons with disabilities are provided with opportunity of full participation and equality in the region. That being the obligation of the State, must be implemented through these
|
Shashi Kapila Vs. R.P. Ashwin | The appellant never contended that he had offered the suit property as an asset of the partnership firm. Nor did the firm at any time claim that the appellant threw the tenancy right over the building into the hotchpot of the partnership at any time. On the contrary, the agreement has taken care that the building is in the personal possession of the appellant. The following recital in the agreement would bear testimony to it : "The purchaser is aware that the tenant is in possession of the said premises and after the purchase he must obtain the possession of the said premises in due course at his own cost and responsibilities. The seller does not hold himself responsible in any way to get him vacant possession. In fact, the purchaser has agreed to take up this responsibility." * 8. Even that apart, when a suit was filed by M/s. Shiva and Co. for specific performance of the agreement dated 17-4-1986 the firm made it abundantly clear in the plaint itself that the appellants right in the building as a tenant is in his personal capacity and not as a partner of the firm. The relevant portion of the plaint is extracted below : "The suit schedule property, at the time of agreement of sale, was in the occupation of Mr. Shashi Kapila in his personal capacity. Hence it is agreed that the defendant would not be responsible to place the plaintiff in vacant possession of the suit property and the plaintiff agreed to the same. The suit schedule property continues to be tenanted by Mr. Shashi Kapila in his personal capacity who is also one of the partners of the plaintiffs firm." * (Mr. Shashi Kapila, mentioned in the above portion, is the appellant in this case). 9. Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties thereto. 10. The second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasons. 11. We pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement. 12. Learned Senior Counsel for the appellant relied on the decision of this Court in P. Veerappa v. M. A. Mohammed Amanulla in support of his contention that the agreement would foreclose the landlords claim that he needs the building bona fide for his own use. The following passage in the judgment is enough to show that the said decision is of no use to the appellant : "6. So long as the agreement subsists, it is settled law that the lesser right of tenancy stood merged with larger rights accrued under the agreement. But unfortunately in the compromise itself it was recognised that the appellant was to pay arrears of rent till the date of compromise. In other words, the appellant recognised the reversion to his pre-existing rights as tenant up to the date of the compromise. In other words, subject to compliance of the terms of the contract, his tenancy rights continued. The terms have not been complied with and the agreement came to an end. Thereby, the appellants pre-existing rights as a tenant stood revived and the appellant and the respondent were bound by the relationship of landlord and tenant." * 13. | 0[ds]Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties theretoThe second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasonsWe pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement | 0 | 2,276 | 534 | ### 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:
The appellant never contended that he had offered the suit property as an asset of the partnership firm. Nor did the firm at any time claim that the appellant threw the tenancy right over the building into the hotchpot of the partnership at any time. On the contrary, the agreement has taken care that the building is in the personal possession of the appellant. The following recital in the agreement would bear testimony to it : "The purchaser is aware that the tenant is in possession of the said premises and after the purchase he must obtain the possession of the said premises in due course at his own cost and responsibilities. The seller does not hold himself responsible in any way to get him vacant possession. In fact, the purchaser has agreed to take up this responsibility." * 8. Even that apart, when a suit was filed by M/s. Shiva and Co. for specific performance of the agreement dated 17-4-1986 the firm made it abundantly clear in the plaint itself that the appellants right in the building as a tenant is in his personal capacity and not as a partner of the firm. The relevant portion of the plaint is extracted below : "The suit schedule property, at the time of agreement of sale, was in the occupation of Mr. Shashi Kapila in his personal capacity. Hence it is agreed that the defendant would not be responsible to place the plaintiff in vacant possession of the suit property and the plaintiff agreed to the same. The suit schedule property continues to be tenanted by Mr. Shashi Kapila in his personal capacity who is also one of the partners of the plaintiffs firm." * (Mr. Shashi Kapila, mentioned in the above portion, is the appellant in this case). 9. Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties thereto. 10. The second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasons. 11. We pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement. 12. Learned Senior Counsel for the appellant relied on the decision of this Court in P. Veerappa v. M. A. Mohammed Amanulla in support of his contention that the agreement would foreclose the landlords claim that he needs the building bona fide for his own use. The following passage in the judgment is enough to show that the said decision is of no use to the appellant : "6. So long as the agreement subsists, it is settled law that the lesser right of tenancy stood merged with larger rights accrued under the agreement. But unfortunately in the compromise itself it was recognised that the appellant was to pay arrears of rent till the date of compromise. In other words, the appellant recognised the reversion to his pre-existing rights as tenant up to the date of the compromise. In other words, subject to compliance of the terms of the contract, his tenancy rights continued. The terms have not been complied with and the agreement came to an end. Thereby, the appellants pre-existing rights as a tenant stood revived and the appellant and the respondent were bound by the relationship of landlord and tenant." * 13.
### Response:
0
### Explanation:
Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties theretoThe second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasonsWe pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement
|
Aluminium Corporation Vs. Their Workmen and Others | as in the case of rehabilitation charge so also under this head, different figures have been shown in different statements. Statements Nos. 1, III and V show the reserves employed in business as Rs. 111, 74, 162.00, while in statements 11, TV and VI the amount is shown as Rs. 199, 56, 718.00. The difference is due to the fact that while in statements 1, III and V, the depreciation reserves is shown as Rs. 86 lacs, the corresponding figure in statements 11, IV and VI is more than double of this, being Rs. 173, 82, 556.00. 4. The very fact that such widely different estimates have been given is some justification for refusing to accept any of these as correct. Indeed, the way the Company has approached the calculations of reserves used as working capital makes one think that those responsible for these calculations did not treat the matter seriously at all and felt that by putting arbitrary figures under this head they could play havoc with the Full Bench Formula. This deserves strong condemnation. 5. Mr.Sastri made no attempt to justify these calculations of reserves used as working capital. He tried to persuade us however that the balance-sheet of the Company would by itself show what part of reserves was used as working capital. Learned counsel submitted that are easy and safe way of ascertaining the correct figure under this head is by deducting the current liabilities of the Company in the balance-sheet from the current assets as shown therein. There is undoubtedly support in standard books on account- ancy for the proposition that the excess of the readily realisable, liquid, or current assets of a concern over its current liabilities is the proper measure of the working capital. (See Croppers Higher Book-Keeping and Accounts 7th Edition, p. 301 and Pickles on Accountancy, 2nd Edition p. 1325).There are however two difficulties in the way of accepting Mr. Sastris contention. The first is that the mere state- ments in the balance-sheet as regards current assets and current liabilities cannot be taken as sacrosanct. As has been emphasised in more than one case by this Court, the correctness of the figures as shown in the balance-sheet itself are to be established by proper evidence in Court by those responsible for preparing the balance-sheet or by other competent witnesses. (Petlad Turkey Dye Works v. Dyes and Chemical Workers Union([1960] 2 S.C.R. 906.) and Khandesh Spg. and Weaving Mills Case([1960] 2 S.C.R. 841.)). This was recently emphasised again in Bengal Kagabkal Mazdoor Union v. The Titagarh Paper Mills Co. Ltd.([1964] S.C.R. 38.). 6. The second difficulty is that the task here is not to ascertain the total working capital of the concern, but to find out what portion of the reserves has been used as work- ing capital. It may often happen that the whole of the working capital is provided from what remained of the subscribed capital after the acquisition of the fixed assets. There may be other cases where a portion of the working capital is provided from the subscribed capital and the remainder is met from the reserves. There appears to be a tendency on the part of some employers to show the entire amount of reserves available for use as working capital as the actual amount used for that purpose. This is obviously wrong. 7. It would be improper and indeed impossible in most cases to come to a correct conclusion on these matters by scrutiny of the balance-sheet itself. Whenever a Company claims deductions from the gross profits under the head return on reserves used as working capital, as prior charge, for ascertaining the available surplus under the Full Bench Formula it is necessary and proper that the accountant, or other competent officers of the Company should come into the witness-box and assist the Tribunals in coming to a satisfactory conclusion on the question.No such attempt was made in this case and we find it impossible to say from the evidence on the record as to what portion, if any, of the reserves was actually used as working capital. The tribunal would have been justified in rejecting in toto the Companys claim under this head. The allowance of Rs. 0.43 lacs as prior charge on return on reserves used as working capital was therefore an error in favour of -the appellant. There is no reason therefore for reducing the figure as found by the Tribunal as the available surplus. 8. Lastly it was suggested by Mr. Sastri that in deciding what should be allowed as bonus out of this available surplus the Tribunal should have proceeded on the basis that one months basic wages amount to Rs. 90, 000 and not Rs. 50, 00 as mentioned by the Tribunal. This figure of Rs. 90, 000/- has been given by the Companys Manager as the total wage of the workmen and the employees, including officers. We are told that the officers were also paid bonus and that also has to come out of the available surplus. So Mr. Sastri argued, though rather faintly, that the bonus should have been fixed on the basis of Rs. 90, 000 wage bill. We do not think that to be the correct approach. The Industrial Tribunal is not concerned with what is paid by the Company to its officers. It is concerned only with the workmens claim of bonus. For deciding therefore what part of the available surplus should be paid to the workmen as bonus the wage bill of the workmen only has to be considered. It is -not disputed that the wage bill (basic wage) of the workmen, excluding the officers, was Rs. 50, 000. The Tribunal has therefore committed no error in fixing the bonus figures on this basis. 9. We wish to make it clear that what we have said in this judgment will not stand in the way of the employer substantiating a claim for rehabilitation charge by proper evidence, in any future dispute on that question. | 0[ds]It would be improper and indeed impossible in most cases to come to a correct conclusion on these matters by scrutiny of the balance-sheet itself. Whenever a Company claims deductions from the gross profits under the head return on reserves used as working capital,as prior charge, for ascertaining the available surplus under the Full Bench Formula it is necessary and proper that the accountant, or other competent officers of the Company should come into the witness-box and assist the Tribunals in coming to a satisfactory conclusion on the question.No such attempt was made in this case and we find it impossible to say from the evidence on the record as to what portion, if any, of the reserves was actually used as working capital. The tribunal would have been justified in rejecting in toto the Companys claim under this head. The allowance of Rs. 0.43 lacs as prior charge on return on reserves used as working capital was therefore an error in favour of -the appellant. There is no reason therefore for reducing the figure as found by the Tribunal as the available surplusLastly it was suggested by Mr. Sastri that in deciding what should be allowed as bonus out of this available surplus the Tribunal should have proceeded on the basis that one months basic wages amount to Rs. 90, 000 and not Rs. 50, 00 as mentioned by the Tribunal. This figure of Rs. 90, 000/- has been given by the Companys Manager as the total wage of the workmen and the employees, including officers.We are told that the officers were also paid bonus and that also has to come out of the available surplus. So Mr. Sastri argued, though rather faintly, that the bonus should have been fixed on the basis of Rs. 90, 000 wage bill. We do not think that to be the correct approach. The Industrial Tribunal is not concerned with what is paid by the Company to its officers. It is concerned only with the workmens claim of bonus. For deciding therefore what part of the available surplus should be paid to the workmen as bonus the wage bill of the workmen only has to be considered. It is -not disputed that the wage bill (basic wage) of the workmen, excluding the officers, was Rs. 50, 000. The Tribunal has therefore committed no error in fixing the bonus figures on this basisWe wish to make it clear that what we have said in this judgment will not stand in the way of the employer substantiating a claim for rehabilitation charge by proper evidence, in any future dispute on that question | 0 | 2,132 | 478 | ### 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:
as in the case of rehabilitation charge so also under this head, different figures have been shown in different statements. Statements Nos. 1, III and V show the reserves employed in business as Rs. 111, 74, 162.00, while in statements 11, TV and VI the amount is shown as Rs. 199, 56, 718.00. The difference is due to the fact that while in statements 1, III and V, the depreciation reserves is shown as Rs. 86 lacs, the corresponding figure in statements 11, IV and VI is more than double of this, being Rs. 173, 82, 556.00. 4. The very fact that such widely different estimates have been given is some justification for refusing to accept any of these as correct. Indeed, the way the Company has approached the calculations of reserves used as working capital makes one think that those responsible for these calculations did not treat the matter seriously at all and felt that by putting arbitrary figures under this head they could play havoc with the Full Bench Formula. This deserves strong condemnation. 5. Mr.Sastri made no attempt to justify these calculations of reserves used as working capital. He tried to persuade us however that the balance-sheet of the Company would by itself show what part of reserves was used as working capital. Learned counsel submitted that are easy and safe way of ascertaining the correct figure under this head is by deducting the current liabilities of the Company in the balance-sheet from the current assets as shown therein. There is undoubtedly support in standard books on account- ancy for the proposition that the excess of the readily realisable, liquid, or current assets of a concern over its current liabilities is the proper measure of the working capital. (See Croppers Higher Book-Keeping and Accounts 7th Edition, p. 301 and Pickles on Accountancy, 2nd Edition p. 1325).There are however two difficulties in the way of accepting Mr. Sastris contention. The first is that the mere state- ments in the balance-sheet as regards current assets and current liabilities cannot be taken as sacrosanct. As has been emphasised in more than one case by this Court, the correctness of the figures as shown in the balance-sheet itself are to be established by proper evidence in Court by those responsible for preparing the balance-sheet or by other competent witnesses. (Petlad Turkey Dye Works v. Dyes and Chemical Workers Union([1960] 2 S.C.R. 906.) and Khandesh Spg. and Weaving Mills Case([1960] 2 S.C.R. 841.)). This was recently emphasised again in Bengal Kagabkal Mazdoor Union v. The Titagarh Paper Mills Co. Ltd.([1964] S.C.R. 38.). 6. The second difficulty is that the task here is not to ascertain the total working capital of the concern, but to find out what portion of the reserves has been used as work- ing capital. It may often happen that the whole of the working capital is provided from what remained of the subscribed capital after the acquisition of the fixed assets. There may be other cases where a portion of the working capital is provided from the subscribed capital and the remainder is met from the reserves. There appears to be a tendency on the part of some employers to show the entire amount of reserves available for use as working capital as the actual amount used for that purpose. This is obviously wrong. 7. It would be improper and indeed impossible in most cases to come to a correct conclusion on these matters by scrutiny of the balance-sheet itself. Whenever a Company claims deductions from the gross profits under the head return on reserves used as working capital, as prior charge, for ascertaining the available surplus under the Full Bench Formula it is necessary and proper that the accountant, or other competent officers of the Company should come into the witness-box and assist the Tribunals in coming to a satisfactory conclusion on the question.No such attempt was made in this case and we find it impossible to say from the evidence on the record as to what portion, if any, of the reserves was actually used as working capital. The tribunal would have been justified in rejecting in toto the Companys claim under this head. The allowance of Rs. 0.43 lacs as prior charge on return on reserves used as working capital was therefore an error in favour of -the appellant. There is no reason therefore for reducing the figure as found by the Tribunal as the available surplus. 8. Lastly it was suggested by Mr. Sastri that in deciding what should be allowed as bonus out of this available surplus the Tribunal should have proceeded on the basis that one months basic wages amount to Rs. 90, 000 and not Rs. 50, 00 as mentioned by the Tribunal. This figure of Rs. 90, 000/- has been given by the Companys Manager as the total wage of the workmen and the employees, including officers. We are told that the officers were also paid bonus and that also has to come out of the available surplus. So Mr. Sastri argued, though rather faintly, that the bonus should have been fixed on the basis of Rs. 90, 000 wage bill. We do not think that to be the correct approach. The Industrial Tribunal is not concerned with what is paid by the Company to its officers. It is concerned only with the workmens claim of bonus. For deciding therefore what part of the available surplus should be paid to the workmen as bonus the wage bill of the workmen only has to be considered. It is -not disputed that the wage bill (basic wage) of the workmen, excluding the officers, was Rs. 50, 000. The Tribunal has therefore committed no error in fixing the bonus figures on this basis. 9. We wish to make it clear that what we have said in this judgment will not stand in the way of the employer substantiating a claim for rehabilitation charge by proper evidence, in any future dispute on that question.
### Response:
0
### Explanation:
It would be improper and indeed impossible in most cases to come to a correct conclusion on these matters by scrutiny of the balance-sheet itself. Whenever a Company claims deductions from the gross profits under the head return on reserves used as working capital,as prior charge, for ascertaining the available surplus under the Full Bench Formula it is necessary and proper that the accountant, or other competent officers of the Company should come into the witness-box and assist the Tribunals in coming to a satisfactory conclusion on the question.No such attempt was made in this case and we find it impossible to say from the evidence on the record as to what portion, if any, of the reserves was actually used as working capital. The tribunal would have been justified in rejecting in toto the Companys claim under this head. The allowance of Rs. 0.43 lacs as prior charge on return on reserves used as working capital was therefore an error in favour of -the appellant. There is no reason therefore for reducing the figure as found by the Tribunal as the available surplusLastly it was suggested by Mr. Sastri that in deciding what should be allowed as bonus out of this available surplus the Tribunal should have proceeded on the basis that one months basic wages amount to Rs. 90, 000 and not Rs. 50, 00 as mentioned by the Tribunal. This figure of Rs. 90, 000/- has been given by the Companys Manager as the total wage of the workmen and the employees, including officers.We are told that the officers were also paid bonus and that also has to come out of the available surplus. So Mr. Sastri argued, though rather faintly, that the bonus should have been fixed on the basis of Rs. 90, 000 wage bill. We do not think that to be the correct approach. The Industrial Tribunal is not concerned with what is paid by the Company to its officers. It is concerned only with the workmens claim of bonus. For deciding therefore what part of the available surplus should be paid to the workmen as bonus the wage bill of the workmen only has to be considered. It is -not disputed that the wage bill (basic wage) of the workmen, excluding the officers, was Rs. 50, 000. The Tribunal has therefore committed no error in fixing the bonus figures on this basisWe wish to make it clear that what we have said in this judgment will not stand in the way of the employer substantiating a claim for rehabilitation charge by proper evidence, in any future dispute on that question
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Prasad Technology Park Pvt. Ltd Vs. Sub Registrar | First and Second Respondents, on the other hand, would submit that having regard to the fact that the nature of business of the company was also altered inasmuch as whereas by the earlier instrument the demise of the premises was made only for the purpose of manufacture of readymade garments and leather garments, the lessee now has been permitted to establish a software park; the instrument in question must be held to be one of lease. Our attention, in this behalf, has been drawn to clauses 2(n) and 2(q) of the original deed of lease, which are as under: 2(n) To use the demised premises only for the purpose of Manufacture of Ready Made Garments or Leather Garments factory/industry and not to use the demised premises or any part thereof for any other purpose nor for the purposes of any factory which may be obnoxious, or offensive by reason of emission of odour, liquid `effluvia, dust, smoke, gas, noise vibrations or fire hazards. 2(q) The Lessee shall not alienate the demised premises or any part thereof or the building, that may be constructed thereon during the period of lease. The Lessee may mortgage the right, title and interest in the demised premises in favour the Government of Karnataka or the Central Government or Corporate bodies like Life Insurance Corporation of India, Karnataka State Industrial Investment and Development Corporation, Karnataka State Financial Corporation, Industrial Finance Corporation of India, Industrial Development Bank of India, Industrial Credit and Investment Corporation of India, Unit Trust of India, Trustees of Debentures Stock of Banks to secure moneys advanced by such Government or bodies for the erection of building, plant and machinery. However, the Lessee shall obtain the No Objection Certificate from the Lessor in writing for creation of second and subsequent charges. 9. Change of the name of a company can be allowed by the Registrar of the Companies in terms of Section 21 of the Companies Act. Once such a name is permitted to be changed, a certificate is issued in terms of Section 23 thereof. 10. The Appellant indisputably was permitted by the Third Respondent herein to establish a software park. The execution of supplementary agreement, it has categorically been stated, became necessary consequent upon the change in the name of the company. By reason of such supplementary agreement although it was permitted to establish a software park but by reason thereof no fresh transaction was entered into. We have noticed hereinbefore that in terms of the aforementioned agreement dated 05.03.1999, the land in question was demised for a period of eleven years with effect from 25.06.1997 on payment of premium fixed thereunder as also on yearly lease rent stipulated thereby. 11. The said lease indisputably was governed by Section 105 of the Transfer of Property Act. By reason of the supplementary agreement, a restrictive covenant has been amended in terms whereof the Appellant herein was permitted to carry on the business of a Technology Park instead of manufacture of readymade garments/leather garments. Only because the name of the company was changed, the same would not mean that a fresh transaction took place. Having regard to the change in the name of the company, the Appellants name was sought to be substituted in the original agreement. The period of the lease, the quantum of the premium paid and other terms and conditions remained unaltered except the restriction contained in clause 2(q) of the said deed, was removed. By reason of mere change of user from carrying on one business to another, it is trite, a fresh transaction does not take place. The terms conditions of the lease can be changed by mutual consent. Unless the essential ingredients thereof as contained in Section 105 of the Transfer of Property Act are not altered, it cannot be said that the parties to the contract entered into a fresh transaction. The Third Respondent merely reserved unto itself a right of reentry on expiry of the said period of eleven years. It could in terms of the covenant of the lease also extend the period of tenancy or terminate the same. Unless the lease itself came to an end, the third respondent did not have any right to re-convey the property. By reason of mere change in the name of the company Prasad Garments Pvt. Ltd. the erstwhile lessee also cannot be held to have transferred its leasehold interest in favour of the Appellant herein. Section 2(i)(j) of the Act, defines instrument, to mean: 2(l)(j) Instrument includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; 12. Execution of an instrument which would attract payment of stamp duty in terms of Article 5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Article 5(f)(i) would have. The Appellant admittedly paid the stamp duty in terms thereof. 13. It is now well settled that for the purpose of levy of stamp duty, the real and true meaning of the instrument must be ascertained. [See The Madras Refineries Ltd. vs. The Chief Controlling Revenue Authority, Board of Revenue, Madras (1977)2 SCC 308] . 14. The High Court held that the supplementary lease agreement cannot be said to be an instrument whereunder the Appellant-Company claims certain leasehold from the Board; but having did so, the High Court was not correct in holding that it is liable to pay the stamp duty. | 1[ds]10. The Appellant indisputably was permitted by the Third Respondent herein to establish a software park. The execution of supplementary agreement, it has categorically been stated, became necessary consequent upon the change in the name of the company. By reason of such supplementary agreement although it was permitted to establish a software park but by reason thereof no fresh transaction was entered into. We have noticed hereinbefore that in terms of the aforementioned agreement dated 05.03.1999, the land in question was demised for a period of eleven years with effect from 25.06.1997 on payment of premium fixed thereunder as also on yearly lease rent stipulated thereby11. The said lease indisputably was governed by Section 105 of the Transfer of Property Act. By reason of the supplementary agreement, a restrictive covenant has been amended in terms whereof the Appellant herein was permitted to carry on the business of a Technology Park instead of manufacture of readymade garments/leather garments. Only because the name of the company was changed, the same would not mean that a fresh transaction took place. Having regard to the change in the name of the company, the Appellants name was sought to be substituted in the original agreement. The period of the lease, the quantum of the premium paid and other terms and conditions remained unaltered except the restriction contained in clause 2(q) of the said deed, was removed. By reason of mere change of user from carrying on one business to another, it is trite, a fresh transaction does not take place. The terms conditions of the lease can be changed by mutual consent. Unless the essential ingredients thereof as contained in Section 105 of the Transfer of Property Act are not altered, it cannot be said that the parties to the contract entered into a fresh transaction. The Third Respondent merely reserved unto itself a right of reentry on expiry of the said period of eleven years. It could in terms of the covenant of the lease also extend the period of tenancy or terminate the same. Unless the lease itself came to an end, the third respondent did not have any right to re-convey the property. By reason of mere change in the name of the company Prasad Garments Pvt. Ltd. the erstwhile lessee also cannot be held to have transferred its leasehold interest in favour of the Appellant herein12. Execution of an instrument which would attract payment of stamp duty in terms of Article 5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Article 5(f)(i) would have. The Appellant admittedly paid the stamp duty in terms thereof13. It is now well settled that for the purpose of levy of stamp duty, the real and true meaning of the instrument must be ascertained.14. The High Court held that the supplementary lease agreement cannot be said to be an instrument whereunder the Appellant-Company claims certain leasehold from the Board; but having did so, the High Court was not correct in holding that it is liable to pay the stamp duty | 1 | 2,151 | 655 | ### 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:
First and Second Respondents, on the other hand, would submit that having regard to the fact that the nature of business of the company was also altered inasmuch as whereas by the earlier instrument the demise of the premises was made only for the purpose of manufacture of readymade garments and leather garments, the lessee now has been permitted to establish a software park; the instrument in question must be held to be one of lease. Our attention, in this behalf, has been drawn to clauses 2(n) and 2(q) of the original deed of lease, which are as under: 2(n) To use the demised premises only for the purpose of Manufacture of Ready Made Garments or Leather Garments factory/industry and not to use the demised premises or any part thereof for any other purpose nor for the purposes of any factory which may be obnoxious, or offensive by reason of emission of odour, liquid `effluvia, dust, smoke, gas, noise vibrations or fire hazards. 2(q) The Lessee shall not alienate the demised premises or any part thereof or the building, that may be constructed thereon during the period of lease. The Lessee may mortgage the right, title and interest in the demised premises in favour the Government of Karnataka or the Central Government or Corporate bodies like Life Insurance Corporation of India, Karnataka State Industrial Investment and Development Corporation, Karnataka State Financial Corporation, Industrial Finance Corporation of India, Industrial Development Bank of India, Industrial Credit and Investment Corporation of India, Unit Trust of India, Trustees of Debentures Stock of Banks to secure moneys advanced by such Government or bodies for the erection of building, plant and machinery. However, the Lessee shall obtain the No Objection Certificate from the Lessor in writing for creation of second and subsequent charges. 9. Change of the name of a company can be allowed by the Registrar of the Companies in terms of Section 21 of the Companies Act. Once such a name is permitted to be changed, a certificate is issued in terms of Section 23 thereof. 10. The Appellant indisputably was permitted by the Third Respondent herein to establish a software park. The execution of supplementary agreement, it has categorically been stated, became necessary consequent upon the change in the name of the company. By reason of such supplementary agreement although it was permitted to establish a software park but by reason thereof no fresh transaction was entered into. We have noticed hereinbefore that in terms of the aforementioned agreement dated 05.03.1999, the land in question was demised for a period of eleven years with effect from 25.06.1997 on payment of premium fixed thereunder as also on yearly lease rent stipulated thereby. 11. The said lease indisputably was governed by Section 105 of the Transfer of Property Act. By reason of the supplementary agreement, a restrictive covenant has been amended in terms whereof the Appellant herein was permitted to carry on the business of a Technology Park instead of manufacture of readymade garments/leather garments. Only because the name of the company was changed, the same would not mean that a fresh transaction took place. Having regard to the change in the name of the company, the Appellants name was sought to be substituted in the original agreement. The period of the lease, the quantum of the premium paid and other terms and conditions remained unaltered except the restriction contained in clause 2(q) of the said deed, was removed. By reason of mere change of user from carrying on one business to another, it is trite, a fresh transaction does not take place. The terms conditions of the lease can be changed by mutual consent. Unless the essential ingredients thereof as contained in Section 105 of the Transfer of Property Act are not altered, it cannot be said that the parties to the contract entered into a fresh transaction. The Third Respondent merely reserved unto itself a right of reentry on expiry of the said period of eleven years. It could in terms of the covenant of the lease also extend the period of tenancy or terminate the same. Unless the lease itself came to an end, the third respondent did not have any right to re-convey the property. By reason of mere change in the name of the company Prasad Garments Pvt. Ltd. the erstwhile lessee also cannot be held to have transferred its leasehold interest in favour of the Appellant herein. Section 2(i)(j) of the Act, defines instrument, to mean: 2(l)(j) Instrument includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; 12. Execution of an instrument which would attract payment of stamp duty in terms of Article 5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Article 5(f)(i) would have. The Appellant admittedly paid the stamp duty in terms thereof. 13. It is now well settled that for the purpose of levy of stamp duty, the real and true meaning of the instrument must be ascertained. [See The Madras Refineries Ltd. vs. The Chief Controlling Revenue Authority, Board of Revenue, Madras (1977)2 SCC 308] . 14. The High Court held that the supplementary lease agreement cannot be said to be an instrument whereunder the Appellant-Company claims certain leasehold from the Board; but having did so, the High Court was not correct in holding that it is liable to pay the stamp duty.
### Response:
1
### Explanation:
10. The Appellant indisputably was permitted by the Third Respondent herein to establish a software park. The execution of supplementary agreement, it has categorically been stated, became necessary consequent upon the change in the name of the company. By reason of such supplementary agreement although it was permitted to establish a software park but by reason thereof no fresh transaction was entered into. We have noticed hereinbefore that in terms of the aforementioned agreement dated 05.03.1999, the land in question was demised for a period of eleven years with effect from 25.06.1997 on payment of premium fixed thereunder as also on yearly lease rent stipulated thereby11. The said lease indisputably was governed by Section 105 of the Transfer of Property Act. By reason of the supplementary agreement, a restrictive covenant has been amended in terms whereof the Appellant herein was permitted to carry on the business of a Technology Park instead of manufacture of readymade garments/leather garments. Only because the name of the company was changed, the same would not mean that a fresh transaction took place. Having regard to the change in the name of the company, the Appellants name was sought to be substituted in the original agreement. The period of the lease, the quantum of the premium paid and other terms and conditions remained unaltered except the restriction contained in clause 2(q) of the said deed, was removed. By reason of mere change of user from carrying on one business to another, it is trite, a fresh transaction does not take place. The terms conditions of the lease can be changed by mutual consent. Unless the essential ingredients thereof as contained in Section 105 of the Transfer of Property Act are not altered, it cannot be said that the parties to the contract entered into a fresh transaction. The Third Respondent merely reserved unto itself a right of reentry on expiry of the said period of eleven years. It could in terms of the covenant of the lease also extend the period of tenancy or terminate the same. Unless the lease itself came to an end, the third respondent did not have any right to re-convey the property. By reason of mere change in the name of the company Prasad Garments Pvt. Ltd. the erstwhile lessee also cannot be held to have transferred its leasehold interest in favour of the Appellant herein12. Execution of an instrument which would attract payment of stamp duty in terms of Article 5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Article 5(f)(i) would have. The Appellant admittedly paid the stamp duty in terms thereof13. It is now well settled that for the purpose of levy of stamp duty, the real and true meaning of the instrument must be ascertained.14. The High Court held that the supplementary lease agreement cannot be said to be an instrument whereunder the Appellant-Company claims certain leasehold from the Board; but having did so, the High Court was not correct in holding that it is liable to pay the stamp duty
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Ambalal Purshottam & Others Vs. Ahmedabad Municipal Corporation | under Section 114 to purchase the land, and under Section 52 the municipality could request the local Government to take action for compulsory acquisition of the land and for vesting the same in the municipality. Counsel for the appellants urged that the power conferred upon the municipality could only be exercised when there was any "hindrance to the permanent or temporary acquisition" by the municipality of any land required for the purposes of the Act, and since there is no proof of such hindrance, all the proceedings for acquisition must be deemed void. In our judgment, the argument is misconceived. Section 52 of the Bombay Municipal Boroughs Act, 1925, authorises the municipality to purchase property required for the purpose of the Act by private treaty or to approach the Government for compulsory acquisition of the land for a public purpose.Section 52 merely sets out alternative modes of acquiring property: it does not provide that before a Municipal Borough may move the Government to acquire land under the Land Acquisition Act, the Borough should have made attempts to purchase the land by private treaty and have failed in that attempt. In any case, the power of the appropriate Government under Section 4 of the Land Acquisition Act to notify land needed or likely to be needed for a public purpose is not subject to the restriction that when the public purpose is of the municipality, the municipality has attempted to purchase the land by private treaty and has failed in that attempt.The scheme of the Land Acquisition Act is that whenever the land is needed for a public purpose or is likely to be needed for a public purpose, the Government may resort to the machinery provided under the Act for acquiring the land. Where the public purpose is the purpose of a local authority and the provisions of the Land Acquisition Act are put in force for acquiring land at the cost of any fund controlled or managed by a local authority, Section 50 of the Land Acquisition Act provides that the charges of and incidental to such acquisition shall be defrayed from such fund. There is no other bar statutory or otherwise to the acquisition of the land for purposes of a municipality.In issuing the notification under Section 4 of the Land Acquisition Act, the appropriate Government is therefore not prevented, merely because the municipality has not attempted to acquire the land by private treaty. There was, therefore, no condition precedent to the acquisition of the land before a notification under Section 4 of the Land Acquisition Act was issued, which was not complied with. 10. The contention that the proceeding for making of his award by the Special Land Acquisition Officer was invalid has also no substance. The appellants as lessees of the structures had no right in the land on which the structures stood. The structures belonged to the owners of the land, and were allowed to be put up after the date of the notification under Section 4 of the Land Acquisition Act was issued, on the undertaking that no compensation shall be claimed in respect of the structures. The appellants were not on the lands at the date of the notification under Section 4, and being tenants of the structures they acquired, prima facie, no interest in the lands.Even assuming that they had acquired by virtue of their respective tenancies, any interest in the lands, their remedy was to approach the Land Acquisition authorities for claiming apportionment of compensation. It may be pointed out that this contention was not raised before the High Court and has been raised for the first time in this Court. 11. The last argument raised by counsel for the appellants is, in our judgment futile. The notification issued by the Government of Bombay under Section 6 of the Land Acquisition Act was by operation of sub-section (3) conclusive evidence that the land was needed for a public purpose. No inquiry was thereafter permissible that the land was not needed for a public purpose. It is true that no steps were immediately taken by the Land Acquisition Officer to make awards of compensation and to take possession of the lands.But the reason apparently was that the municipality was still trying to purchase the land by private treaty and when it was found that it could not purchase the lands, the Land Acquisition Officer was requested to expedite the determination of compensation. We are unable to hold that there is any evidence that the Government of Bombay issued the notification under Section 4 of the Land Acquisition Act, not for the bona fide purpose of acquisition but with the object of pegging down prices so that the lands may when needed be obtained at those rates in future.The land was within the line of the street and could not without the sanction of the municipality be put to any profitable use. If either the land owners or the tenants were aggrieved by the delay, it was open to them to claim writs or orders compelling the State Government to complete the assessment and payment of compensation.We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under S. 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay.But on the facts of the present case, it does not appear that there was any scope for holding that with a view to prevent the land owners or the persons claiming derivative title from them from getting the benefit of the rise in prices, notifications under Sections 4 and 6 were issued without any intention to take steps for acquisition of the lands. | 0[ds]6. In our judgment there is no substance in any of the contentions raised. It may be recalled that the appellants in these appeals are not the owners of the lands acquired: they are tenants in occupation of structures permitted to be constructed upon the lands after the date of the notification under Section 4 of the Land Acquisition Act on condition that the owners of the lands will not claim compensation for those structures. If the land owners are not entitled to claim compensation for the structures, evidently the persons who occupy those structures and who have come to occupy the same after the notification, have no interest in the lands or the compensation, and they cannot hold up the acquisition proceedings by preventing the Special Land Acquisition Officer from taking over possession of the lands7. The Land Acquisition Act authorises the appropriate Government to notify land for acquisition which is or is likely to be needed for a public purpose: and road widening in a town is undoubtedly a public purpose. After considering the report of the Collector under Section 5-A of the Land Acquisition Act, the Government of Bombay published a notification under Section 6 (1) of the Land Acquisition Act that the lands were needed for a public purpose. That declaration was, by virtue of S. 6 (3) of the Act, conclusive evidence that the lands were needed for a public purpose By the compulsory acquisition for a public purpose, subject to payment of compensation, no fundamental rights guaranteed under Articles 19 and 31 (2) of the Constitution were infringed. The lands were properly notified for acquisition. The compensating payable in respect of the lands has been determined.If there is any grievance which the appellants are entitled to raise in respect of the compensation determined as payable, their remedy lies in approaching the Courts competent to determine that question9. On a review of these provisions it is clear that the municipality under the Bombay Municipal Boroughs Act, 1925 had the power to acquire land needed for municipal purposes including widening, opening, enlarging or otherwise improving any public streets or municipal road. The municipality laid down a line of the street; after the line of the street was laid down, it was open to the municipality to decline permission to construct or reconstruct any building on the land and the lands were to be deemed added to the street. But the municipality did permit construction on the lands. The provisions of Clause (b) of Section 118 (3) were therefore not attracted. For the purpose of widening the street, the municipality had the power under Section 114 to purchase the land, and under Section 52 the municipality could request the local Government to take action for compulsory acquisition of the land and for vesting the same in the municipality. Counsel for the appellants urged that the power conferred upon the municipality could only be exercised when there was any "hindrance to the permanent or temporary acquisition" by the municipality of any land required for the purposes of the Act, and since there is no proof of such hindrance, all the proceedings for acquisition must be deemed void. In our judgment, the argument is misconceived. Section 52 of the Bombay Municipal Boroughs Act, 1925, authorises the municipality to purchase property required for the purpose of the Act by private treaty or to approach the Government for compulsory acquisition of the land for a public purpose.Section 52 merely sets out alternative modes of acquiring property: it does not provide that before a Municipal Borough may move the Government to acquire land under the Land Acquisition Act, the Borough should have made attempts to purchase the land by private treaty and have failed in that attempt. In any case, the power of the appropriate Government under Section 4 of the Land Acquisition Act to notify land needed or likely to be needed for a public purpose is not subject to the restriction that when the public purpose is of the municipality, the municipality has attempted to purchase the land by private treaty and has failed in that attempt.The scheme of the Land Acquisition Act is that whenever the land is needed for a public purpose or is likely to be needed for a public purpose, the Government may resort to the machinery provided under the Act for acquiring the land. Where the public purpose is the purpose of a local authority and the provisions of the Land Acquisition Act are put in force for acquiring land at the cost of any fund controlled or managed by a local authority, Section 50 of the Land Acquisition Act provides that the charges of and incidental to such acquisition shall be defrayed from such fund. There is no other bar statutory or otherwise to the acquisition of the land for purposes of a municipality.In issuing the notification under Section 4 of the Land Acquisition Act, the appropriate Government is therefore not prevented, merely because the municipality has not attempted to acquire the land by private treaty. There was, therefore, no condition precedent to the acquisition of the land before a notification under Section 4 of the Land Acquisition Act was issued, which was not complied with11. The last argument raised by counsel for the appellants is, in our judgment futile. The notification issued by the Government of Bombay under Section 6 of the Land Acquisition Act was by operation of sub-section (3) conclusive evidence that the land was needed for a public purpose. No inquiry was thereafter permissible that the land was not needed for a public purpose. It is true that no steps were immediately taken by the Land Acquisition Officer to make awards of compensation and to take possession of the lands.But the reason apparently was that the municipality was still trying to purchase the land by private treaty and when it was found that it could not purchase the lands, the Land Acquisition Officer was requested to expedite the determination of compensation. We are unable to hold that there is any evidence that the Government of Bombay issued the notification under Section 4 of the Land Acquisition Act, not for the bona fide purpose of acquisition but with the object of pegging down prices so that the lands may when needed be obtained at those rates in future.The land was within the line of the street and could not without the sanction of the municipality be put to any profitable use. If either the land owners or the tenants were aggrieved by the delay, it was open to them to claim writs or orders compelling the State Government to complete the assessment and payment of compensation.We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under S. 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay.But on the facts of the present case, it does not appear that there was any scope for holding that with a view to prevent the land owners or the persons claiming derivative title from them from getting the benefit of the rise in prices, notifications under Sections 4 and 6 were issued without any intention to take steps for acquisition of the lands. | 0 | 2,789 | 1,348 | ### Instruction:
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under Section 114 to purchase the land, and under Section 52 the municipality could request the local Government to take action for compulsory acquisition of the land and for vesting the same in the municipality. Counsel for the appellants urged that the power conferred upon the municipality could only be exercised when there was any "hindrance to the permanent or temporary acquisition" by the municipality of any land required for the purposes of the Act, and since there is no proof of such hindrance, all the proceedings for acquisition must be deemed void. In our judgment, the argument is misconceived. Section 52 of the Bombay Municipal Boroughs Act, 1925, authorises the municipality to purchase property required for the purpose of the Act by private treaty or to approach the Government for compulsory acquisition of the land for a public purpose.Section 52 merely sets out alternative modes of acquiring property: it does not provide that before a Municipal Borough may move the Government to acquire land under the Land Acquisition Act, the Borough should have made attempts to purchase the land by private treaty and have failed in that attempt. In any case, the power of the appropriate Government under Section 4 of the Land Acquisition Act to notify land needed or likely to be needed for a public purpose is not subject to the restriction that when the public purpose is of the municipality, the municipality has attempted to purchase the land by private treaty and has failed in that attempt.The scheme of the Land Acquisition Act is that whenever the land is needed for a public purpose or is likely to be needed for a public purpose, the Government may resort to the machinery provided under the Act for acquiring the land. Where the public purpose is the purpose of a local authority and the provisions of the Land Acquisition Act are put in force for acquiring land at the cost of any fund controlled or managed by a local authority, Section 50 of the Land Acquisition Act provides that the charges of and incidental to such acquisition shall be defrayed from such fund. There is no other bar statutory or otherwise to the acquisition of the land for purposes of a municipality.In issuing the notification under Section 4 of the Land Acquisition Act, the appropriate Government is therefore not prevented, merely because the municipality has not attempted to acquire the land by private treaty. There was, therefore, no condition precedent to the acquisition of the land before a notification under Section 4 of the Land Acquisition Act was issued, which was not complied with. 10. The contention that the proceeding for making of his award by the Special Land Acquisition Officer was invalid has also no substance. The appellants as lessees of the structures had no right in the land on which the structures stood. The structures belonged to the owners of the land, and were allowed to be put up after the date of the notification under Section 4 of the Land Acquisition Act was issued, on the undertaking that no compensation shall be claimed in respect of the structures. The appellants were not on the lands at the date of the notification under Section 4, and being tenants of the structures they acquired, prima facie, no interest in the lands.Even assuming that they had acquired by virtue of their respective tenancies, any interest in the lands, their remedy was to approach the Land Acquisition authorities for claiming apportionment of compensation. It may be pointed out that this contention was not raised before the High Court and has been raised for the first time in this Court. 11. The last argument raised by counsel for the appellants is, in our judgment futile. The notification issued by the Government of Bombay under Section 6 of the Land Acquisition Act was by operation of sub-section (3) conclusive evidence that the land was needed for a public purpose. No inquiry was thereafter permissible that the land was not needed for a public purpose. It is true that no steps were immediately taken by the Land Acquisition Officer to make awards of compensation and to take possession of the lands.But the reason apparently was that the municipality was still trying to purchase the land by private treaty and when it was found that it could not purchase the lands, the Land Acquisition Officer was requested to expedite the determination of compensation. We are unable to hold that there is any evidence that the Government of Bombay issued the notification under Section 4 of the Land Acquisition Act, not for the bona fide purpose of acquisition but with the object of pegging down prices so that the lands may when needed be obtained at those rates in future.The land was within the line of the street and could not without the sanction of the municipality be put to any profitable use. If either the land owners or the tenants were aggrieved by the delay, it was open to them to claim writs or orders compelling the State Government to complete the assessment and payment of compensation.We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under S. 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay.But on the facts of the present case, it does not appear that there was any scope for holding that with a view to prevent the land owners or the persons claiming derivative title from them from getting the benefit of the rise in prices, notifications under Sections 4 and 6 were issued without any intention to take steps for acquisition of the lands.
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Constitution were infringed. The lands were properly notified for acquisition. The compensating payable in respect of the lands has been determined.If there is any grievance which the appellants are entitled to raise in respect of the compensation determined as payable, their remedy lies in approaching the Courts competent to determine that question9. On a review of these provisions it is clear that the municipality under the Bombay Municipal Boroughs Act, 1925 had the power to acquire land needed for municipal purposes including widening, opening, enlarging or otherwise improving any public streets or municipal road. The municipality laid down a line of the street; after the line of the street was laid down, it was open to the municipality to decline permission to construct or reconstruct any building on the land and the lands were to be deemed added to the street. But the municipality did permit construction on the lands. The provisions of Clause (b) of Section 118 (3) were therefore not attracted. For the purpose of widening the street, the municipality had the power under Section 114 to purchase the land, and under Section 52 the municipality could request the local Government to take action for compulsory acquisition of the land and for vesting the same in the municipality. Counsel for the appellants urged that the power conferred upon the municipality could only be exercised when there was any "hindrance to the permanent or temporary acquisition" by the municipality of any land required for the purposes of the Act, and since there is no proof of such hindrance, all the proceedings for acquisition must be deemed void. In our judgment, the argument is misconceived. Section 52 of the Bombay Municipal Boroughs Act, 1925, authorises the municipality to purchase property required for the purpose of the Act by private treaty or to approach the Government for compulsory acquisition of the land for a public purpose.Section 52 merely sets out alternative modes of acquiring property: it does not provide that before a Municipal Borough may move the Government to acquire land under the Land Acquisition Act, the Borough should have made attempts to purchase the land by private treaty and have failed in that attempt. In any case, the power of the appropriate Government under Section 4 of the Land Acquisition Act to notify land needed or likely to be needed for a public purpose is not subject to the restriction that when the public purpose is of the municipality, the municipality has attempted to purchase the land by private treaty and has failed in that attempt.The scheme of the Land Acquisition Act is that whenever the land is needed for a public purpose or is likely to be needed for a public purpose, the Government may resort to the machinery provided under the Act for acquiring the land. Where the public purpose is the purpose of a local authority and the provisions of the Land Acquisition Act are put in force for acquiring land at the cost of any fund controlled or managed by a local authority, Section 50 of the Land Acquisition Act provides that the charges of and incidental to such acquisition shall be defrayed from such fund. There is no other bar statutory or otherwise to the acquisition of the land for purposes of a municipality.In issuing the notification under Section 4 of the Land Acquisition Act, the appropriate Government is therefore not prevented, merely because the municipality has not attempted to acquire the land by private treaty. There was, therefore, no condition precedent to the acquisition of the land before a notification under Section 4 of the Land Acquisition Act was issued, which was not complied with11. The last argument raised by counsel for the appellants is, in our judgment futile. The notification issued by the Government of Bombay under Section 6 of the Land Acquisition Act was by operation of sub-section (3) conclusive evidence that the land was needed for a public purpose. No inquiry was thereafter permissible that the land was not needed for a public purpose. It is true that no steps were immediately taken by the Land Acquisition Officer to make awards of compensation and to take possession of the lands.But the reason apparently was that the municipality was still trying to purchase the land by private treaty and when it was found that it could not purchase the lands, the Land Acquisition Officer was requested to expedite the determination of compensation. We are unable to hold that there is any evidence that the Government of Bombay issued the notification under Section 4 of the Land Acquisition Act, not for the bona fide purpose of acquisition but with the object of pegging down prices so that the lands may when needed be obtained at those rates in future.The land was within the line of the street and could not without the sanction of the municipality be put to any profitable use. If either the land owners or the tenants were aggrieved by the delay, it was open to them to claim writs or orders compelling the State Government to complete the assessment and payment of compensation.We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under S. 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay.But on the facts of the present case, it does not appear that there was any scope for holding that with a view to prevent the land owners or the persons claiming derivative title from them from getting the benefit of the rise in prices, notifications under Sections 4 and 6 were issued without any intention to take steps for acquisition of the lands.
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Pr. Commissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Limited | provided in section 171, but without prejudice to the provisions of this section. Explanation.—For the purposes of this section, ?income? includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession? Now, in the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment. 32. On behalf of the Revenue, reliance has been placed on the decision of this Court in Commissioner of Income Tax, Shillong v Jai Prakash Singh (1996) 3 SCC 525 (?Jai Prakash Singh?). That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v CIT (1947) 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v CIT (1943) 11 ITR 202 (Bombay) (?Maharaja of Patiala?). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as ?His Highness…late Maharaja of Patiala?. The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh held that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where the liability is created by a distinct substantive provision. The omission or defect may render the order irregular but not void or illegal. Jai Prakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. | 0[ds]19. While assessing the merits of the rival submissions, it is necessary at the outset to advert to certain significant facets of the presentFirstly, the income which is sought to be subjected to the charge of tax for AY 2012-13 is the income of the erstwhile entity (SPIL) prior to amalgamation. This is on account of a transfer pricing addition of Rs. 78.97Secondly, under the approved scheme of amalgamation, the transferee has assumed the liabilities of the transferor company, including taxThirdly, the consequence of the scheme of amalgamation approved under Section 394 of the Companies Act 1956 is that the amalgamating company ceased to exist. In Saraswati Industrial Syndicate Ltd., the principle has been formulated by this Court in the followingGenerally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or ‘amalgamation? has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly ‘amalgamation? does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsburys Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses itsFourthly, upon the amalgamating company ceasing to exist, it cannot be regarded as a person under Section 2(31) of the Act 1961 against whom assessment proceedings can be initiated or an order of assessmentFifthly, a notice under Section 143 (2) was issued on 26 September 2013 to the amalgamating company, SPIL, which was followed by a notice to it under SectionSixthly, prior to the date on which the jurisdictional notice under Section 143 (2) was issued, the scheme of amalgamation had been approved on 29 January 2013 by the High Court of Delhi under the Companies Act 1956 with effect from 1 AprilSeventhly, the assessing officer assumed jurisdiction to make an assessment in pursuance of the notice under Section 143 (2). The notice was issued in the name of the amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company MSIL had addressed a communication to the assessing officer intimating the fact of amalgamation. In the above conspectus of the facts, the initiation of assessment proceedings against an entity which had ceased to exist was void ab initio.In Spice Entertainment, a Division Bench of the Delhi High Court dealt with the question as to whether an assessment in the name of a company which has been amalgamated and has been dissolved is null and void or, whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The High Court held that upon a notice under Section 143 (2) being addressed, the amalgamated company had brought the fact of the amalgamation to the notice of the assessing officer. Despite this, the assessing officer did not substitute the name of the amalgamated company and proceeded to make an assessment in the name of a non-existent company which renders it void. This, in the view of the High Court, was not merely a procedural defect. Moreover, the participation by the amalgamated company would have no effect since there could be no estoppel against lawAfter the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said „dead person?. When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings an assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law.Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of thethe decision in Spice Entertainment, the Delhi High Court quashed assessment orders which were framed in the name of the amalgamating companyi) Micron Steels;5. The doctrine of merger results in the settled legal position that the judgment of the Delhi High Court stands affirmed by the above decision in the Civil Appeals.The order of assessment in the case of the respondent for AY 2011-12 was set aside on the same ground. This resulted in a Special Leave Petition by the Principal Commissioner of Income Tax – 6 Delhi (Special Leave Petition (C) (D) No. 14106 of 2018). The Special Leave Petition was dismissed by a two judge Bench of this Court consisting of Hon?ble Mr Justice Rohinton Fali Nariman and Hon?ble Ms Justice Indu Malhotra on 16 July 2018 in view of the order dated 2 November 2017 governing Civil Appeal No. 285 of 2014 in Spice Enfotainment and the connected batch of cases. Though, leave was not granted by this Court, reasons have been assigned by this Court for rejecting the Special Leave Petition. The law declared would attract the applicability of Article 141 of the Constitution. For, as this Court has held inthe order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon?ble Mr Justice A K Sikri and Hon?ble Mr Justice Ashok BhushanSpecial Leave Petition (C) No. 7409 of 2018. In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of thisthe peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Taxspecial leave petition isapplications stand disposedit is evident from the above extract that it was in the peculiar facts of the case that this Court indicated its agreement that the wrong name given in the notice was merely a clerical error, capable of being corrected under Section 292B. The ?peculiar facts? of Skylight Hospitality emerge from the decision of the Delhi High Court ?Sky Light Hospitality LLP v Assistant Commissioner of Income Tax : (2018) 405 ITR 296 . Skylight Hospitality, an LLP, had taken over on 13 May 2016 and acquired the rights and liabilities of Skylight Hospitality Pvt. Ltd upon conversion under the Limited Liability Partnership Act 2008 ( ?LLP Act 2008?). It instituted writ proceedings for challenging a notice under Sections 147/148 of the Act 1961 dated 30 March 2017 for AY 2010-2011. The ?reasons to believe? made a reference to a tax evasion report received from the investigation unit of the income tax department. The facts were ascertained by the investigation unit. The reasons to believe referred to the assessment order for AY 2013-2014 and the findings recorded in it. Though the notice under Sections 147/148 was issued in the name of Skylight Hospitality Pvt. Ltd. (which had ceased to exist upon conversion into an LLP), there was, as the Delhi High Court held ?substantial and affirmative material and evidence on record? to show that the issuance of the notice in the name of the dissolved company was a mistake. The tax evasion report adverted to the conversion of the private limited company into an LLP. Moreover, the reasons to believe recorded by the assessing officer adverted to the approval of the Principal Commissioner. The PAN number of the LLP was also mentioned in some of the documents. The notice under Sections 147/148 was not in conformity with the reasons to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case fell within the purview of Section 292B for the followingwas no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11.04.2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused.From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Courtsii) Chandreshbhai Jayantibhai Patel;0. There is no conflict between the decisions of this Court in Spice Enfotainment (dated 2 November 2017) and in Skylight Hospitality LLP (dated 6 Aprilclose reading of the order of this Court dated 6 April 2018, however indicates that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the Special Leave Petition this Court observed that it was the peculiar facts of the case which led the court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict between the decisions in Spice Enfotainment on the one hand and Skylight Hospitality LLP on the otherthis case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Sectionin the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient norPrakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. | 0 | 8,864 | 2,897 | ### Instruction:
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provided in section 171, but without prejudice to the provisions of this section. Explanation.—For the purposes of this section, ?income? includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession? Now, in the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment. 32. On behalf of the Revenue, reliance has been placed on the decision of this Court in Commissioner of Income Tax, Shillong v Jai Prakash Singh (1996) 3 SCC 525 (?Jai Prakash Singh?). That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v CIT (1947) 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v CIT (1943) 11 ITR 202 (Bombay) (?Maharaja of Patiala?). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as ?His Highness…late Maharaja of Patiala?. The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh held that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where the liability is created by a distinct substantive provision. The omission or defect may render the order irregular but not void or illegal. Jai Prakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. 33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.
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number of the LLP was also mentioned in some of the documents. The notice under Sections 147/148 was not in conformity with the reasons to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case fell within the purview of Section 292B for the followingwas no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11.04.2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused.From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Courtsii) Chandreshbhai Jayantibhai Patel;0. There is no conflict between the decisions of this Court in Spice Enfotainment (dated 2 November 2017) and in Skylight Hospitality LLP (dated 6 Aprilclose reading of the order of this Court dated 6 April 2018, however indicates that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the Special Leave Petition this Court observed that it was the peculiar facts of the case which led the court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict between the decisions in Spice Enfotainment on the one hand and Skylight Hospitality LLP on the otherthis case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Sectionin the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient norPrakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity.
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M/s. P. D. Jain, Managing Director, Indo Europe Food Limited Vs. Oswal Agro Mills Limited and Another | 1. We have heard Shri K. N. Bhat, learned senior advocate for the petitioner and Shri S. S. Ray and Dr. Shankar Ghosh, learned senior advocates for the respondent-company 2. Petitioner-P. D. Jain, claiming to be the Managing Director of Messrs Indo Europe Food Limited, a company incorporated in the United Kingdom, which, it is averred, has since been struck off from the Register of Companies, seeks special leave to appeal to this Court from decree dated May 9, 1989 made by the learned Single Judge of the Delhi High Court in Suit No. 1917 of 1986. Petitioner who was not eo nomine party to the suit has also sought leave to prefer the petition for special leave. In view of the averments that the company against which the decree is passed has been struck off from the Registers and the further case of the petitioner that the decree affects the rights and interests of the petitioners, we grant him leave to file the petition. However, the special leave to appeal, for reasons to be indicated presently, cannot be granted3. The decree sought to be appealed against, following, as it does, an order refusing leave to defend in a summary suit is, it is not disputed, appealable to the Division Bench of the High Court. Shri K. N. Bhat however, sought to maintain, somewhat strenuously, that having regard to the particular circumstances under which the leave to defend was refused and the consequential decree made and having regard further to the fact that the petitioner would be exposed to heavy liability towards court fee, it is otherwise a fit case in which this Court should entertain the appeal directly from the Single Judges decree. Shri Bhat said that in the circumstances of the case the right of appeal is an onerous one and the petitioner should not be compelled to have resort to such an onerous remedy. Shri Bhat said that the proposition of prosecuting such an appeal at this stage is best with difficulties of limitation as well 4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High Court | 1[ds]4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High | 1 | 461 | 92 | ### Instruction:
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1. We have heard Shri K. N. Bhat, learned senior advocate for the petitioner and Shri S. S. Ray and Dr. Shankar Ghosh, learned senior advocates for the respondent-company 2. Petitioner-P. D. Jain, claiming to be the Managing Director of Messrs Indo Europe Food Limited, a company incorporated in the United Kingdom, which, it is averred, has since been struck off from the Register of Companies, seeks special leave to appeal to this Court from decree dated May 9, 1989 made by the learned Single Judge of the Delhi High Court in Suit No. 1917 of 1986. Petitioner who was not eo nomine party to the suit has also sought leave to prefer the petition for special leave. In view of the averments that the company against which the decree is passed has been struck off from the Registers and the further case of the petitioner that the decree affects the rights and interests of the petitioners, we grant him leave to file the petition. However, the special leave to appeal, for reasons to be indicated presently, cannot be granted3. The decree sought to be appealed against, following, as it does, an order refusing leave to defend in a summary suit is, it is not disputed, appealable to the Division Bench of the High Court. Shri K. N. Bhat however, sought to maintain, somewhat strenuously, that having regard to the particular circumstances under which the leave to defend was refused and the consequential decree made and having regard further to the fact that the petitioner would be exposed to heavy liability towards court fee, it is otherwise a fit case in which this Court should entertain the appeal directly from the Single Judges decree. Shri Bhat said that in the circumstances of the case the right of appeal is an onerous one and the petitioner should not be compelled to have resort to such an onerous remedy. Shri Bhat said that the proposition of prosecuting such an appeal at this stage is best with difficulties of limitation as well 4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High Court
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4. We are afraid, we cannot accept this submission. If the petitioner is not able to pay the court fee, it is open to him to seek to prosecute the appeal as an indigent person. We do not want to go into and pronounce here on that status of the petitioners. It appears to us that the proper course for the petitioner is to prefer and prosecute the remedy by way of an appeal before the Division Bench of the High
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Innamuri Gopalam and Maddala Nagendrudu and Others Vs. State of Andhra Pradesh and Another | Bill but to such goods as fall within the entirely of that taxing provision and in respect of which therefore the additional duty would be leviable, for in respect of cotton fabrics produced in India per se or simpliciter no excise duty would be leviable unless they are at the premises which are specified in the latter portion of clause 3(1) of the Bill. Both these conditions are necessary to exist before the duty of excise is "leviable" and when the proviso therefore uses the words "any class of such goods" it could only refer to the class of goods named in the 1st para of clause 3(1) - lying, stored or stocked in the places referred to in the concluding portion of the clause.There is another aspect from which this question of construction could be viewed. It cannot be disputed that the proviso and the conditions appended thereto form an integral part thereof. It is obvious that where the proviso operates it would be open to the dealer affected by it to pay the additional duty and establish that he has paid such duty and thereby entitle himself to the exemption. In other words, it cannot be that the proviso excludes the exemption but in circumstances in which the conditions cannot be fulfilled. The conditions themselves would thus throw light upon the words of the proviso, and when the proviso is read with the conditions of which they are an integral part, the conclusion is inescapable that the word "leviable" used in the proviso means that in respect of the goods specified as regards which he claims exemption from the payment of sales tax there was a liability upon him to pay the additional excise duty under clause 3 of the Bill for it was only in that event he would be able to prove to the assessing authorities that additional duty has been levied and collected from him.7. Learned counsel for the respondent also repeated before us the other line of argument which the High Court accepted, viz., that the notification of Government in granting the exemption was to avoid double taxation, viz., of liability to pay both the excise duty as well as the sales tax, and that as in the present case the appellants were admittedly not bound to pay the additional excise duty they could make no claim to the benefit of the exemption either. We do not feel persuaded to accept this argument. No doubt, statutes have to be construed as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is nothing to modify, nothing to alter, or nothing to qualify the language of a statute, the words and sentences have to be construed in their ordinary and natural meaning (vide 36 Hals. (3rd Edn.) s. 585). What we are now concerned with is a fiscal provision and it has often been said that there is no equity in a taxing statute and either the subject is within it or not, on the words of the enactment or the rules validly made thereunder. In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the words of the provision. If the taxpayer is within the plain terms of the exemption he cannot be denied its benefit by calling in aid any supposed intention of the exemption authority. It such intention can be gathered from the construction of the words of the statute or rule or by necessary implication therefrom, the matter is different, but that is not the position here. In this connection we might refer to the observations of Lord Watson in Salomon v. Salomon and Co. ([1897) A.C. 22 at p. 38) :"Intention of the Legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."8. Learned counsel for the State is possibly right in the submission that the object behind the framers of the notification was to avoid double taxable but the operation of an enactment or of a notification has to be judged not by the object which the Legislature or the notifying authority, as the case may be, may have had in mind but by the words which it has employed to effectuate the legislative intent. In the case before us the operative words of the notification are to be found in the 1st paragraph granting the exemption and it was not disputed that the appellants were within that provision. The next question would be as to whether the exemption to which the appellants were manifestly entitled under the 1st paragraph of the notification they have been deprived of by the operation of the proviso. If the proviso on its proper construction, as we have endeavoured to point out earlier, cannot apply to cases where an additional duty of excise is not leviable under clause 3 of the Bill it would follow that the operation of the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the notification dated December 13, 1957.9. In the writ petition which they filed to the High Court they prayed for a declaration that certain provisions of the Andhra Pradesh Act VI of 1957 were ultra vires of the Constitution of India. As stated earlier, this point about the constitutional invalidity of the Act was abandoned in this Court and the argument before us was confined wholly to their claim to exemption under the notification. | 1[ds]This submission has to be accepted and be heard no serious argument againstargument was that "textile goods" were "a class of goods" in respect of which an additional duty was leviable, though by reason of their location, viz., not being within the precincts of a factory, warehouse etc., no duty could be levied and that consequently unless condition (1) to the proviso was satisfied the exemption could not be claimed. The learned Judges accepted this argument, but with great respect to them, it appears to us that they were in error in doing so. In the first place, "the class of goods" referred to in the proviso to the notification are such that in respect of them duties of excise are leviable. If, therefore, in respect of a class of goods such duties are not leviable because of the situs in which they are lying or are stocked, they would not be the class of goods in respect of which duties of excise are leviable, for the essential condition for the proviso to be brought into operation is the liability of the goods to the levy of the additional duty. It therefore appears to us that the expression "class of such goods" has to be understood as being a reference not merely to the goods specified in the opening words of clause 3(1) of the Bill but to such goods as fall within the entirely of that taxing provision and in respect of which therefore the additional duty would be leviable, for in respect of cotton fabrics produced in India per se or simpliciter no excise duty would be leviable unless they are at the premises which are specified in the latter portion of clause 3(1) of the Bill. Both these conditions are necessary to exist before the duty of excise is "leviable" and when the proviso therefore uses the words "any class of such goods" it could only refer to the class of goods named in the 1st para of clause 3(1)lying, stored or stocked in the places referred to in the concluding portion of the clause.There is another aspect from which this question of construction could be viewed. It cannot be disputed that the proviso and the conditions appended thereto form an integral part thereof. It is obvious that where the proviso operates it would be open to the dealer affected by it to pay the additional duty and establish that he has paid such duty and thereby entitle himself to the exemption. In other words, it cannot be that the proviso excludes the exemption but in circumstances in which the conditions cannot be fulfilled. The conditions themselves would thus throw light upon the words of the proviso, and when the proviso is read with the conditions of which they are an integral part, the conclusion is inescapable that the word "leviable" used in the proviso means that in respect of the goods specified as regards which he claims exemption from the payment of sales tax there was a liability upon him to pay the additional excise duty under clause 3 of the Bill for it was only in that event he would be able to prove to the assessing authorities that additional duty has been levied and collected from him.We do not feel persuaded to accept this argument. No doubt, statutes have to be construed as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is nothing to modify, nothing to alter, or nothing to qualify the language of a statute, the words and sentences have to be construed in their ordinary and natural meaning (vide 36 Hals. (3rd Edn.) s. 585). What we are now concerned with is a fiscal provision and it has often been said that there is no equity in a taxing statute and either the subject is within it or not, on the words of the enactment or the rules validly made thereunder. In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the words of the provision. If the taxpayer is within the plain terms of the exemption he cannot be denied its benefit by calling in aid any supposed intention of the exemption authority. It such intention can be gathered from the construction of the words of the statute or rule or by necessary implication therefrom, the matter is different, but that is not the position here. In this connection we might refer to the observations of Lord Watson in Salomon v. Salomon and Co. ([1897) A.C. 22 at p.d counsel for the State is possibly right in the submission that the object behind the framers of the notification was to avoid double taxable but the operation of an enactment or of a notification has to be judged not by the object which the Legislature or the notifying authority, as the case may be, may have had in mind but by the words which it has employed to effectuate the legislative intent.In the case before us the operative words of the notification are to be found in the 1st paragraph granting the exemption and it was not disputed that the appellants were within that provision.the proviso on its proper construction, as we have endeavoured to point out earlier, cannot apply to cases where an additional duty of excise is not leviable under clause 3 of the Bill it would follow that the operation of the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the notification dated December 13, 1957.9. In the writ petition which they filed to the High Court they prayed for a declaration that certain provisions of the Andhra Pradesh Act VI of 1957 were ultra vires of the Constitution of India. As stated earlier, this point about the constitutional invalidity of the Act was abandoned in this Court and the argument before us was confined wholly to their claim to exemption under the notification. | 1 | 3,309 | 1,111 | ### Instruction:
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Bill but to such goods as fall within the entirely of that taxing provision and in respect of which therefore the additional duty would be leviable, for in respect of cotton fabrics produced in India per se or simpliciter no excise duty would be leviable unless they are at the premises which are specified in the latter portion of clause 3(1) of the Bill. Both these conditions are necessary to exist before the duty of excise is "leviable" and when the proviso therefore uses the words "any class of such goods" it could only refer to the class of goods named in the 1st para of clause 3(1) - lying, stored or stocked in the places referred to in the concluding portion of the clause.There is another aspect from which this question of construction could be viewed. It cannot be disputed that the proviso and the conditions appended thereto form an integral part thereof. It is obvious that where the proviso operates it would be open to the dealer affected by it to pay the additional duty and establish that he has paid such duty and thereby entitle himself to the exemption. In other words, it cannot be that the proviso excludes the exemption but in circumstances in which the conditions cannot be fulfilled. The conditions themselves would thus throw light upon the words of the proviso, and when the proviso is read with the conditions of which they are an integral part, the conclusion is inescapable that the word "leviable" used in the proviso means that in respect of the goods specified as regards which he claims exemption from the payment of sales tax there was a liability upon him to pay the additional excise duty under clause 3 of the Bill for it was only in that event he would be able to prove to the assessing authorities that additional duty has been levied and collected from him.7. Learned counsel for the respondent also repeated before us the other line of argument which the High Court accepted, viz., that the notification of Government in granting the exemption was to avoid double taxation, viz., of liability to pay both the excise duty as well as the sales tax, and that as in the present case the appellants were admittedly not bound to pay the additional excise duty they could make no claim to the benefit of the exemption either. We do not feel persuaded to accept this argument. No doubt, statutes have to be construed as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is nothing to modify, nothing to alter, or nothing to qualify the language of a statute, the words and sentences have to be construed in their ordinary and natural meaning (vide 36 Hals. (3rd Edn.) s. 585). What we are now concerned with is a fiscal provision and it has often been said that there is no equity in a taxing statute and either the subject is within it or not, on the words of the enactment or the rules validly made thereunder. In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the words of the provision. If the taxpayer is within the plain terms of the exemption he cannot be denied its benefit by calling in aid any supposed intention of the exemption authority. It such intention can be gathered from the construction of the words of the statute or rule or by necessary implication therefrom, the matter is different, but that is not the position here. In this connection we might refer to the observations of Lord Watson in Salomon v. Salomon and Co. ([1897) A.C. 22 at p. 38) :"Intention of the Legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."8. Learned counsel for the State is possibly right in the submission that the object behind the framers of the notification was to avoid double taxable but the operation of an enactment or of a notification has to be judged not by the object which the Legislature or the notifying authority, as the case may be, may have had in mind but by the words which it has employed to effectuate the legislative intent. In the case before us the operative words of the notification are to be found in the 1st paragraph granting the exemption and it was not disputed that the appellants were within that provision. The next question would be as to whether the exemption to which the appellants were manifestly entitled under the 1st paragraph of the notification they have been deprived of by the operation of the proviso. If the proviso on its proper construction, as we have endeavoured to point out earlier, cannot apply to cases where an additional duty of excise is not leviable under clause 3 of the Bill it would follow that the operation of the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the notification dated December 13, 1957.9. In the writ petition which they filed to the High Court they prayed for a declaration that certain provisions of the Andhra Pradesh Act VI of 1957 were ultra vires of the Constitution of India. As stated earlier, this point about the constitutional invalidity of the Act was abandoned in this Court and the argument before us was confined wholly to their claim to exemption under the notification.
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goods" were "a class of goods" in respect of which an additional duty was leviable, though by reason of their location, viz., not being within the precincts of a factory, warehouse etc., no duty could be levied and that consequently unless condition (1) to the proviso was satisfied the exemption could not be claimed. The learned Judges accepted this argument, but with great respect to them, it appears to us that they were in error in doing so. In the first place, "the class of goods" referred to in the proviso to the notification are such that in respect of them duties of excise are leviable. If, therefore, in respect of a class of goods such duties are not leviable because of the situs in which they are lying or are stocked, they would not be the class of goods in respect of which duties of excise are leviable, for the essential condition for the proviso to be brought into operation is the liability of the goods to the levy of the additional duty. It therefore appears to us that the expression "class of such goods" has to be understood as being a reference not merely to the goods specified in the opening words of clause 3(1) of the Bill but to such goods as fall within the entirely of that taxing provision and in respect of which therefore the additional duty would be leviable, for in respect of cotton fabrics produced in India per se or simpliciter no excise duty would be leviable unless they are at the premises which are specified in the latter portion of clause 3(1) of the Bill. Both these conditions are necessary to exist before the duty of excise is "leviable" and when the proviso therefore uses the words "any class of such goods" it could only refer to the class of goods named in the 1st para of clause 3(1)lying, stored or stocked in the places referred to in the concluding portion of the clause.There is another aspect from which this question of construction could be viewed. It cannot be disputed that the proviso and the conditions appended thereto form an integral part thereof. It is obvious that where the proviso operates it would be open to the dealer affected by it to pay the additional duty and establish that he has paid such duty and thereby entitle himself to the exemption. In other words, it cannot be that the proviso excludes the exemption but in circumstances in which the conditions cannot be fulfilled. The conditions themselves would thus throw light upon the words of the proviso, and when the proviso is read with the conditions of which they are an integral part, the conclusion is inescapable that the word "leviable" used in the proviso means that in respect of the goods specified as regards which he claims exemption from the payment of sales tax there was a liability upon him to pay the additional excise duty under clause 3 of the Bill for it was only in that event he would be able to prove to the assessing authorities that additional duty has been levied and collected from him.We do not feel persuaded to accept this argument. No doubt, statutes have to be construed as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is nothing to modify, nothing to alter, or nothing to qualify the language of a statute, the words and sentences have to be construed in their ordinary and natural meaning (vide 36 Hals. (3rd Edn.) s. 585). What we are now concerned with is a fiscal provision and it has often been said that there is no equity in a taxing statute and either the subject is within it or not, on the words of the enactment or the rules validly made thereunder. In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the words of the provision. If the taxpayer is within the plain terms of the exemption he cannot be denied its benefit by calling in aid any supposed intention of the exemption authority. It such intention can be gathered from the construction of the words of the statute or rule or by necessary implication therefrom, the matter is different, but that is not the position here. In this connection we might refer to the observations of Lord Watson in Salomon v. Salomon and Co. ([1897) A.C. 22 at p.d counsel for the State is possibly right in the submission that the object behind the framers of the notification was to avoid double taxable but the operation of an enactment or of a notification has to be judged not by the object which the Legislature or the notifying authority, as the case may be, may have had in mind but by the words which it has employed to effectuate the legislative intent.In the case before us the operative words of the notification are to be found in the 1st paragraph granting the exemption and it was not disputed that the appellants were within that provision.the proviso on its proper construction, as we have endeavoured to point out earlier, cannot apply to cases where an additional duty of excise is not leviable under clause 3 of the Bill it would follow that the operation of the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the notification dated December 13, 1957.9. In the writ petition which they filed to the High Court they prayed for a declaration that certain provisions of the Andhra Pradesh Act VI of 1957 were ultra vires of the Constitution of India. As stated earlier, this point about the constitutional invalidity of the Act was abandoned in this Court and the argument before us was confined wholly to their claim to exemption under the notification.
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Vilas Vs. Hindustan Petroleum Corporation Limited | may be allowed to be demonstrated by supplying its proof. But such a provision can not be used to bring on record the fact that eligibility norm not met with till the relevant date, has been subsequently satisfied. Thus, it is not an opportunity extended to acquire the eligibility after the relevant date. If arguments of the petitioners are accepted, the logic behind prescribing the last date will itself be frustrated & lead to uncertainty or arbitrariness.25. The judgment delivered by Honble Division Bench of Patna High Court in L.P.A. No.1159/2009, considers the error committed in affidavit by writ petitioner. Instead of word ....... (Court) in his affidavit, he mentioned the word ...... (Office) in his affidavit. He rectified the same and a fresh affidavit was filed in proper format before applications were considered for final selection. His application was not considered and he filed Writ Petition before learned Single Judge. The learned Single Judge held that the defence raised by Oil Company was hyper-technical. The Division Bench found that Oil Company, being State within meaning of Article 12 of the Constitution, was supposed to act fairly, reasonably and uniformly. To remain objective, it had to adhere to standards mentioned in the advertisement. As the application submitted by writ petitioner was not in conformity with said stipulation in advertisement, the Division Bench of Patna High Court found appeal preferred by Oil Company justified and its appeal came to be allowed.26. The Division Bench of this Court at Bombay, while deciding Writ Petition No.5020/2014, on 10th June 2014, considered a lease which was for a period of 15 years from 24th October 2013. Very same advertisement and very same clause has been looked into and the lease period was found short by 5 days for completing the period of 15 years. Though Clause 8.5 permitting deficiencies to be removed, has not been looked into, the contention of said petitioner at Bombay, that he was willing to extend the period of lease by 5 days, has been evaluated and negated. The Division Bench at Aurangabad, while deciding Writ Petition No.5223/2014 and three other matters, has considered same clause and requirement of 15 years with reference to last date of submission of application and rejected the petitions. on 29th September 2014, for the same reasons, four other Writ Petitions were dismissed in motion hearing. Though order dated 27th June 2014 does not make reference to Clause No.8.5 of the brochure, it takes note of the judgment delivered at Bombay in Writ Petition No.5020 of 2014. The later order dated 29th September 2014, mentions the Bombay order and also considers Clause 8.5. It appears that, at Aurangabad, Writ Petition No.4640/2014 was also dismissed on 11-6-2014.27. At Nagpur, Division Bench, on 10-10-2014, considered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application on 29-10-2013 or within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also included & extended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limited & another (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with. | 0[ds]11. The ground in relation to affidavit of land owner mentioned in communication dated 19th August 2014, forming subject matter of challenge in Writ Petition filed by Ramakant Magar can be dealt with first. Perusal of Clause No.6.1 of the guidelines for selection reveal that at page 7 of said book of guidelines, with reference to(vii) and (viii) of this Clause 6.1, there is a clarification. The first part of clarification points out the meaning of word own. Paragraph thereafter is regarding the land jointly owned by applicants. It states that if such land is jointly owned and share of land in the name of applicant meets the requirement of land including dimensions required, that land for godown / showroom also qualifies for examining eligibility as own land, subject to submission of no objection certificate in the form of a notarized affidavit from its other owners. The proforma of this notarized affidavit is given in Appendix IV. It specifically stipulates that all the joint owners / joint lessees of land except the applicant have to submit their individual affidavit. Thus, this affidavit is essential only when it is shown that land offered does not belong exclusively to Ramakant and some other persons also have interest in or title to it. PetitionerRamakant in his affidavit has pointed out this positionhis sole ownership. However, the same appears not to have been looked into. There is nothing on record to show that land offered by petitioner was not available exclusively to him and there are any joint holders. The rejection of his application on the said ground, therefore, is unsustainable.The opportunity to rectify deficiencies within specified period of time is contemplated in Clause 8.5. It is obvious, that deficiencies can come to light only after the envelope is opened. Envelope is to be submitted by an individual who fulfills the eligibility criteria. Thus, one who does not fulfill said criteria, cannot submit that envelope. The word deficiencies, therefore, will have to be understood as used in contrast with eligibility criteria. Not possessing any of eligibility criterion, therefore, cannot be allowed to be cured or amended by taking recourse to Clause 8.5.19. We have considered the judgment of the Honble Apex Court, in the case of Girnar Traders Vs. State of Maharashtraothers (supra), cited by the learned Senior Advocate, and perused paragraphs 55 and 56 therein. The Honble Larger Bench of Apex Court has considered the scheme of Section 127 of the Maharashtra RegionalTown Planning Act, 1966, stipulation of time within which notice for acquisition can be given and purpose of providing such time limit in the scheme of enactment. We are unable to connect said precedent with present facts.Here, the reference to point of time, in brochure has been noted by us supra. While prescribing eligibility criteria in relation to education qualification, age or disqualification being a member of a family, the requirement has beenwith date of application. While specifying ownership of a land, it has been connected to the last date for submission of application. This change in date for examination of eligibility is not argued to be either arbitrary or otherwise unsustainable before us. Similarly, when concept of "owning" is explained, the requirement is of lease agreement for minimum 15 years. This word minimum also becomes significant. Intention behind specifying two different dates while undertaking scrutiny or relevance of last date prescribed for submission of application emphasized by word "minimum" establish that duration of lease held as on last date is an essential condition.22. The requirement of having registered lease agreement for minimum 15 years has beento as on the last date for submission of application. Thus, having a registered lease agreement for minimum 15 years, is the qualification which individual must possess on the last date for submission of application i.e.in the present facts. Both the petitioners do not satisfy this. The brochure mandates having lease for minimum 15 years onand this is an eligibility condition. It cannot be viewed here, as a collateral orcondition. It is an essential term of the tender.23. Having a registered lease for minimum 15 years, as onitself implies that lease must be valid for 15 years next from the said last date. A person who has sometime in the past entered into a registered lease and obtained it for a period of 15 years from the date of execution thereof in his favour cannot contend that he has got a registered lease agreement for 15 years. Hypothetically, a person who has entered into a registered lease agreement, for a period of 15 years, on 31st October 1998, can legitimately urge that he has an agreement of 15 years of lease with him onMerely possessing an agreement is not sufficient to meet the eligibility norm as prescribed by Oil Company in the present matter. The stipulation along with its clarification makes it clear that lease agreement has to be for a duration of minimum 15 years next, and that period of 15 years has to be calculated after the last date i.e.Considering the purpose for which advertisement is issued and the nature of business for which petitioners aspire, it is abundantly clear that the minimum period of 15 years sought for by Oil Company cannot be said to be irrelevantunfair. The Oil Company is free to decide said period and terms and conditions of contract. Unless and until this selection of period is shown to be perverse or arbitrary, or with any oblique motive, the same cannot be judicially reviewed by this court. This unambigious stipulation in the advertisement / brochure document, therefore, needs to be honoured.At Nagpur, Division Bench, onconsidered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application onor within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also includedextended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limitedanother (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with. | 0 | 5,277 | 1,625 | ### 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:
may be allowed to be demonstrated by supplying its proof. But such a provision can not be used to bring on record the fact that eligibility norm not met with till the relevant date, has been subsequently satisfied. Thus, it is not an opportunity extended to acquire the eligibility after the relevant date. If arguments of the petitioners are accepted, the logic behind prescribing the last date will itself be frustrated & lead to uncertainty or arbitrariness.25. The judgment delivered by Honble Division Bench of Patna High Court in L.P.A. No.1159/2009, considers the error committed in affidavit by writ petitioner. Instead of word ....... (Court) in his affidavit, he mentioned the word ...... (Office) in his affidavit. He rectified the same and a fresh affidavit was filed in proper format before applications were considered for final selection. His application was not considered and he filed Writ Petition before learned Single Judge. The learned Single Judge held that the defence raised by Oil Company was hyper-technical. The Division Bench found that Oil Company, being State within meaning of Article 12 of the Constitution, was supposed to act fairly, reasonably and uniformly. To remain objective, it had to adhere to standards mentioned in the advertisement. As the application submitted by writ petitioner was not in conformity with said stipulation in advertisement, the Division Bench of Patna High Court found appeal preferred by Oil Company justified and its appeal came to be allowed.26. The Division Bench of this Court at Bombay, while deciding Writ Petition No.5020/2014, on 10th June 2014, considered a lease which was for a period of 15 years from 24th October 2013. Very same advertisement and very same clause has been looked into and the lease period was found short by 5 days for completing the period of 15 years. Though Clause 8.5 permitting deficiencies to be removed, has not been looked into, the contention of said petitioner at Bombay, that he was willing to extend the period of lease by 5 days, has been evaluated and negated. The Division Bench at Aurangabad, while deciding Writ Petition No.5223/2014 and three other matters, has considered same clause and requirement of 15 years with reference to last date of submission of application and rejected the petitions. on 29th September 2014, for the same reasons, four other Writ Petitions were dismissed in motion hearing. Though order dated 27th June 2014 does not make reference to Clause No.8.5 of the brochure, it takes note of the judgment delivered at Bombay in Writ Petition No.5020 of 2014. The later order dated 29th September 2014, mentions the Bombay order and also considers Clause 8.5. It appears that, at Aurangabad, Writ Petition No.4640/2014 was also dismissed on 11-6-2014.27. At Nagpur, Division Bench, on 10-10-2014, considered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application on 29-10-2013 or within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also included & extended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limited & another (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with.
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### Explanation:
being a member of a family, the requirement has beenwith date of application. While specifying ownership of a land, it has been connected to the last date for submission of application. This change in date for examination of eligibility is not argued to be either arbitrary or otherwise unsustainable before us. Similarly, when concept of "owning" is explained, the requirement is of lease agreement for minimum 15 years. This word minimum also becomes significant. Intention behind specifying two different dates while undertaking scrutiny or relevance of last date prescribed for submission of application emphasized by word "minimum" establish that duration of lease held as on last date is an essential condition.22. The requirement of having registered lease agreement for minimum 15 years has beento as on the last date for submission of application. Thus, having a registered lease agreement for minimum 15 years, is the qualification which individual must possess on the last date for submission of application i.e.in the present facts. Both the petitioners do not satisfy this. The brochure mandates having lease for minimum 15 years onand this is an eligibility condition. It cannot be viewed here, as a collateral orcondition. It is an essential term of the tender.23. Having a registered lease for minimum 15 years, as onitself implies that lease must be valid for 15 years next from the said last date. A person who has sometime in the past entered into a registered lease and obtained it for a period of 15 years from the date of execution thereof in his favour cannot contend that he has got a registered lease agreement for 15 years. Hypothetically, a person who has entered into a registered lease agreement, for a period of 15 years, on 31st October 1998, can legitimately urge that he has an agreement of 15 years of lease with him onMerely possessing an agreement is not sufficient to meet the eligibility norm as prescribed by Oil Company in the present matter. The stipulation along with its clarification makes it clear that lease agreement has to be for a duration of minimum 15 years next, and that period of 15 years has to be calculated after the last date i.e.Considering the purpose for which advertisement is issued and the nature of business for which petitioners aspire, it is abundantly clear that the minimum period of 15 years sought for by Oil Company cannot be said to be irrelevantunfair. The Oil Company is free to decide said period and terms and conditions of contract. Unless and until this selection of period is shown to be perverse or arbitrary, or with any oblique motive, the same cannot be judicially reviewed by this court. This unambigious stipulation in the advertisement / brochure document, therefore, needs to be honoured.At Nagpur, Division Bench, onconsidered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application onor within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also includedextended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limitedanother (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with.
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Subsets and Splits