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Bombay Housing Board (Now The Maharashtrahousing Board) Vs. Karbhase Naik & Co., Sholapur | the right which came into existence as result of the contract entered into between the plaintiff and the municipality and not a public duty cast upon the municipality by the statute, that in forfeiting the deposit, the municipality was not acting in pursuance to the powers given to it under the statute but was doing so in pursuance of a power given to it under the contract and, therefore, the suit to enforce rights under the contract entered into with. the municipality which the municipality was not under any obligation to enter into, cannot fall within the ambit of the section. We think that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.28. Mr. Desai referred to the decision of the Madras High Court in Athimannil Muhammad v. Malabar District Board, ILR 58 Mad 746 = (AIR 1935 Mad 213 ) and said that the decision therein would govern the instant case. That was a case where a suit was filed against the District Board more than six months after the date of the accrual of the cause of action, claiming damages on the ground that its President improperly cancelled a contract of lease for one year of the tolls in certain places, which was stated to have been entered into by the plaintiff with the Board through its Vice President. The President in performance of what he thought was his duty under the Madras Local Boards Act accepted a higher offer by another person and the necessary consequence of it was the cancellation of the acceptance of the plaintiffs offer. It was held that though the distinction between actions on contract and actions independent of contract may be convenient enough as a working rule, the real test to be applied was whether what was complained of was some act done in pursuance of a statute. Varadachariar, J. in delivering the judgment of the Court said that the cancellation of the acceptance of the offer was the necessary result of what the President thought was his duty in accordance with the teens of the Act as he interpreted them namely to accept the highest tender and that he did this on the footing that the Vice Presidents acceptance of the plaintiffs tender was not in compliance with the Act. He further said that the right to collect tolls was a special privilege conferred upon local bodies by statute and that they were authorised either to manage the collection of the tolls themselves or through their own agency or to lease them out, and that in any case what the President as representing the Board did in connection with the leasing out of the right to levy tolls was undoubtedly an act done in execution of his powers or duties under the. Act.29. We need not consider the correctness of this decision as, even on the assumption that it is corrects it has no application to the facts here. There the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President, or at any rate, he thought that it was his statutory duty as President to accept the highest bid. The distinction between an act done with some semblance of authority or show of right and a prima facie illegal act in this context has been clearly pointed out in the decision in Jalgaon Borough Municipality v. Khandesh Spinning and Weaving Mills Co. Ltd., ILR (1953) Bom 590 = (AIR 1958 Bom 204 ) where the question was whether notice under Section 206 of the Bombay Municipal Boroughs Act, 1925, was necessary before filing a suit to recover a sum of money on the basis of a contract. The Court held that an act which is prima facie illegal is not within the category of acts done or purported to have been done in pursuance of that Act, and that it is only an act done under a vestige or semblance of authority or with some show of a right that would fall within the category. Bhagwati J. in the course of ha judgment said that the acts which would fall within the category of those done or purported to have been done in pursuance of the Act could only be those which were done under a vestige or semblance of authority, or with some show of a right and that the distinction between ultra vires and illegal acts on the one hand and wrongful acts on the other-wrongful in the sense that they purport to have been done in pursuance of the Act-is that they are intended to have been done in pursuance of the Act and are done with a vestige or semblance of authority or sort of a right invested in the party doing those acts.30. In the Trustees of Port of Bombay v. The. Premier Automobiles Ltd., AIR 1974 SC 923 Section 87 of the Bombay Port Trust Act, 1879, which is in pari materia with Section 64 of the Act fell for consideration and the question was whether short delivery by a statutory bailee was something done or purporting to have been done under the provisions of that Act. In the course of the judgment, Krishna Iyer, J., speaking for the Court, said that a suit for damages for breach of contract would not attract the section (see para 46 of the judgment).31. As we said, the act complained of in this case was the non-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties. We do not think that the act complained of could be said to have been done or purported to have been done in pursuance of the Act. By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appellant or its agents by the Act. | 1[ds]It is clear from the clause that where any additional or altered work is directed to be carried out and no rates are entered in the Schedule of Rates in the Division or agreed to, then, the contractor may, within seven days of the order, give notice of the rate he intends to charge. In such case, the Engineer-in-charge would be at liberty to cancel the order if he does not agree to the rate stated by the contractor and get the work done by any other agency. Where, however, the Engineer-in-charge has not cancelled the order for additional or altered work and the contractor has commenced work and incurred expenditure, the contractor shall only be entitled to be paid at such rate or rates as may be fixed by the Engineer-in-charge. In any such case if the contractor is dissatisfied, he may raise a dispute about the rate or rates so fixed by the Engineer-in-charge. Where such dispute is raised, the Superintending Engineer will decide the same and his decision will be final.10. We do not think that the respondent was bound to carry out the additions and alterations as there was no reply to the notice stating the rates it intended to charge. But it was free to commence and complete the work on the basis that since the rates quoted by it were not accepted, it would be paid at such rates to be fixed by the Engineer-in-charge and that if it was dissatisfied with the rate or rates fixed by the Engineer-in-charge, it could raise a dispute before the Superintending Engineer and that the time limit for completion would be extended in all cases of additions or alterations as stated n the last sub-para of clause 14.11. The High Court was of the view that clause 14 had no application because it thought that the respondent was bound to carry out the work as directed by the Engineer-in-charge even when there was no agreement as regards the rate to be charged for the extra work, as the nature of work in some cases would be such that if the work was not completed at the time when the work was to be completed, the contractor would have to do much extra work over and above the actual work involved. The Court also said that clause 14 gave the Engineer-in-charge an absolute power to fix the rate and that would: tee unjust and therefore the Court decreed in full the amount claimed under items A-3 and A-4.12. We think that until the .rates were settled by agreement the respondent was under no obligation to carry out the additional or altered work. The respondent could legitimately have said that in the absence of scheduled rates in the division for the type of work in question or an agreement in regard to the rates, it was not bound to carry out the additional or altered work. We are not satisfied that since the Engineer-in, charge did not exercise his liberty to cancel the order, there was a concluded contract between the parties. The failure to cancel the order for additional or altered work on receipt of the notice specifying the rate would not result in an agreement as to the rate to be charged. The clause only gave the Engineer-in-charge the liberty to cancel the order and get the work done by another contractor. The fact that an express power was given to the Engineer-in-charge by the clause to cancel the order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. The proviso in clause 14 was intended to cover cases where the notice specifying the rate was not given by the contractor, or where, even though the notice was given, the Engineer-in-charge did not cancel the order in the event of his not agreeing to the rate specified in the notice. We are of the view that in the absence of some positive act on the part of the Engineer-in-charge agreeing to the rate, there was no agreement as to the rate and that the respondent was not bound to carry out the work.13. In this view of the matter, we think that the High Court went wrong in allowing the claim in item A-4.14. The claim under Item A-3 stands on the same footing as the claim under item A-4 and, therefore, that claim has also to be rejected.We do not think that the High Court was in error. Clause 15 empowers the Engineer-in-charge to stop or to reduce the whole of the work specified in the tender if he thinks it necessary to do so and the contractor has no right to claim any compensation whatsoever on account of such stoppage or reduction in the work. The clause also provides that the contractor shall have no right to claim any pay. ment or compensation on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not derive in consequence of the full amount of the work not having been carried out or on account of any loss that he may be put to on account of materials purchased or agreed to be purchased or for unemployment of labour recruited by him. The clause further provides that the contractor shall not also have any claim for compensation by reason of any alteration having been made in the original specifications, drawings, design or instruction which may involve curtailment of work as originally contemplated.18. In its evidence, the respondent stated that it put slabs of 4 1/2" thickness in an area measuring 24,000 sq. ft. out of an area of 61,000 sq. ft. and that it had to put 44,000 lbs. of reinforcement instead of 27,000 Lbs. and so it must be paid for the extra 17,000 lbs. a sum of Rs. 9,000/-.The High Court took the view that this involved no reduction or curtailment in the work and as the alteration involved additional cost to the respondent, it cannot be said that there was reduction or curtailment of work. In other words, the High Court was of the view that the nature of the work was such that there was not only no curtailment of work but an increase of work involving additional cost. We think the High Court was right in its conclusion that clause 15 has no application and that the claim was well founded.19. The respondent had claimed Rs. 9,097/- from the appellant in respect of item C-2. In the plaint the respondent stated that the appellant represented to it that the appellant would entrust the respondent with the pipeline work mentioned therein but that the appellant, contrary to representation, got the work done by another contractor and, therefore, the respondent was entitled to compensation for it.20. The High Court found that as it was provided in clause 15 that before the Engineer-in-charge could stop the work and get the work done by another contractor, he should give the respondent a written notice and as such a notice was not given, the respondent was entitled to damage.21. We see no reason to think that observance of the condition as regards the written notice was not mandatory. We see no force in the argument that the written notice was not necessary as that was specifically provided for in the clause.There can be no doubt that the act complained of by the respondent was the non payment of money as damages or compensation resulting from an alleged breach ofthink that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.We need not consider the correctness of this decision as, even on the assumption that it is corrects it has no application to the facts here. There the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President, or at any rate, he thought that it was his statutory duty as President to accept the highest bid.As we said, the act complained of in this case was the non-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties. We do not think that the act complained of could be said to have been done or purported to have been done in pursuance of the Act. By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appellant or its agents by the Act. | 1 | 4,727 | 1,540 | ### Instruction:
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the right which came into existence as result of the contract entered into between the plaintiff and the municipality and not a public duty cast upon the municipality by the statute, that in forfeiting the deposit, the municipality was not acting in pursuance to the powers given to it under the statute but was doing so in pursuance of a power given to it under the contract and, therefore, the suit to enforce rights under the contract entered into with. the municipality which the municipality was not under any obligation to enter into, cannot fall within the ambit of the section. We think that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.28. Mr. Desai referred to the decision of the Madras High Court in Athimannil Muhammad v. Malabar District Board, ILR 58 Mad 746 = (AIR 1935 Mad 213 ) and said that the decision therein would govern the instant case. That was a case where a suit was filed against the District Board more than six months after the date of the accrual of the cause of action, claiming damages on the ground that its President improperly cancelled a contract of lease for one year of the tolls in certain places, which was stated to have been entered into by the plaintiff with the Board through its Vice President. The President in performance of what he thought was his duty under the Madras Local Boards Act accepted a higher offer by another person and the necessary consequence of it was the cancellation of the acceptance of the plaintiffs offer. It was held that though the distinction between actions on contract and actions independent of contract may be convenient enough as a working rule, the real test to be applied was whether what was complained of was some act done in pursuance of a statute. Varadachariar, J. in delivering the judgment of the Court said that the cancellation of the acceptance of the offer was the necessary result of what the President thought was his duty in accordance with the teens of the Act as he interpreted them namely to accept the highest tender and that he did this on the footing that the Vice Presidents acceptance of the plaintiffs tender was not in compliance with the Act. He further said that the right to collect tolls was a special privilege conferred upon local bodies by statute and that they were authorised either to manage the collection of the tolls themselves or through their own agency or to lease them out, and that in any case what the President as representing the Board did in connection with the leasing out of the right to levy tolls was undoubtedly an act done in execution of his powers or duties under the. Act.29. We need not consider the correctness of this decision as, even on the assumption that it is corrects it has no application to the facts here. There the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President, or at any rate, he thought that it was his statutory duty as President to accept the highest bid. The distinction between an act done with some semblance of authority or show of right and a prima facie illegal act in this context has been clearly pointed out in the decision in Jalgaon Borough Municipality v. Khandesh Spinning and Weaving Mills Co. Ltd., ILR (1953) Bom 590 = (AIR 1958 Bom 204 ) where the question was whether notice under Section 206 of the Bombay Municipal Boroughs Act, 1925, was necessary before filing a suit to recover a sum of money on the basis of a contract. The Court held that an act which is prima facie illegal is not within the category of acts done or purported to have been done in pursuance of that Act, and that it is only an act done under a vestige or semblance of authority or with some show of a right that would fall within the category. Bhagwati J. in the course of ha judgment said that the acts which would fall within the category of those done or purported to have been done in pursuance of the Act could only be those which were done under a vestige or semblance of authority, or with some show of a right and that the distinction between ultra vires and illegal acts on the one hand and wrongful acts on the other-wrongful in the sense that they purport to have been done in pursuance of the Act-is that they are intended to have been done in pursuance of the Act and are done with a vestige or semblance of authority or sort of a right invested in the party doing those acts.30. In the Trustees of Port of Bombay v. The. Premier Automobiles Ltd., AIR 1974 SC 923 Section 87 of the Bombay Port Trust Act, 1879, which is in pari materia with Section 64 of the Act fell for consideration and the question was whether short delivery by a statutory bailee was something done or purporting to have been done under the provisions of that Act. In the course of the judgment, Krishna Iyer, J., speaking for the Court, said that a suit for damages for breach of contract would not attract the section (see para 46 of the judgment).31. As we said, the act complained of in this case was the non-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties. We do not think that the act complained of could be said to have been done or purported to have been done in pursuance of the Act. By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appellant or its agents by the Act.
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absence of scheduled rates in the division for the type of work in question or an agreement in regard to the rates, it was not bound to carry out the additional or altered work. We are not satisfied that since the Engineer-in, charge did not exercise his liberty to cancel the order, there was a concluded contract between the parties. The failure to cancel the order for additional or altered work on receipt of the notice specifying the rate would not result in an agreement as to the rate to be charged. The clause only gave the Engineer-in-charge the liberty to cancel the order and get the work done by another contractor. The fact that an express power was given to the Engineer-in-charge by the clause to cancel the order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. The proviso in clause 14 was intended to cover cases where the notice specifying the rate was not given by the contractor, or where, even though the notice was given, the Engineer-in-charge did not cancel the order in the event of his not agreeing to the rate specified in the notice. We are of the view that in the absence of some positive act on the part of the Engineer-in-charge agreeing to the rate, there was no agreement as to the rate and that the respondent was not bound to carry out the work.13. In this view of the matter, we think that the High Court went wrong in allowing the claim in item A-4.14. The claim under Item A-3 stands on the same footing as the claim under item A-4 and, therefore, that claim has also to be rejected.We do not think that the High Court was in error. Clause 15 empowers the Engineer-in-charge to stop or to reduce the whole of the work specified in the tender if he thinks it necessary to do so and the contractor has no right to claim any compensation whatsoever on account of such stoppage or reduction in the work. The clause also provides that the contractor shall have no right to claim any pay. ment or compensation on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not derive in consequence of the full amount of the work not having been carried out or on account of any loss that he may be put to on account of materials purchased or agreed to be purchased or for unemployment of labour recruited by him. The clause further provides that the contractor shall not also have any claim for compensation by reason of any alteration having been made in the original specifications, drawings, design or instruction which may involve curtailment of work as originally contemplated.18. In its evidence, the respondent stated that it put slabs of 4 1/2" thickness in an area measuring 24,000 sq. ft. out of an area of 61,000 sq. ft. and that it had to put 44,000 lbs. of reinforcement instead of 27,000 Lbs. and so it must be paid for the extra 17,000 lbs. a sum of Rs. 9,000/-.The High Court took the view that this involved no reduction or curtailment in the work and as the alteration involved additional cost to the respondent, it cannot be said that there was reduction or curtailment of work. In other words, the High Court was of the view that the nature of the work was such that there was not only no curtailment of work but an increase of work involving additional cost. We think the High Court was right in its conclusion that clause 15 has no application and that the claim was well founded.19. The respondent had claimed Rs. 9,097/- from the appellant in respect of item C-2. In the plaint the respondent stated that the appellant represented to it that the appellant would entrust the respondent with the pipeline work mentioned therein but that the appellant, contrary to representation, got the work done by another contractor and, therefore, the respondent was entitled to compensation for it.20. The High Court found that as it was provided in clause 15 that before the Engineer-in-charge could stop the work and get the work done by another contractor, he should give the respondent a written notice and as such a notice was not given, the respondent was entitled to damage.21. We see no reason to think that observance of the condition as regards the written notice was not mandatory. We see no force in the argument that the written notice was not necessary as that was specifically provided for in the clause.There can be no doubt that the act complained of by the respondent was the non payment of money as damages or compensation resulting from an alleged breach ofthink that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.We need not consider the correctness of this decision as, even on the assumption that it is corrects it has no application to the facts here. There the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President, or at any rate, he thought that it was his statutory duty as President to accept the highest bid.As we said, the act complained of in this case was the non-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties. We do not think that the act complained of could be said to have been done or purported to have been done in pursuance of the Act. By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appellant or its agents by the Act.
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V.N.Shrikhande Vs. Anita Sena Fernandes | suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years. This is clearly borne out from the averments contained in paragraph 8 of the complaint, the relevant portion of which is extracted below: ".............Even after discharging the complainant from the hospital the pain in the abdomen still persisted as on and off and it was giving unrest to the complainant again at home and at the place where she worked. The sufferings of the complainant were endless, had to spend sleepless nights and mental strain for almost nine years and as the pain became unbearable by the passage of time, the complainant had to be admitted in the Government Hospital in Goa in September, 2002................." A similar statement was made by her in the affidavit filed before the National Commission, paragraphs 2 and 3 (two paragraphs have been marked as 3) of which read as under: "2. I say that to arrest the pains, sufferings and mental strains during the period of nine years I was taking tablets and their names are as follows: Tablets CYCLOPAMBRUFEN -400mgCROCINDICLO FENAC3. As a nurse in the Government Hospital I know from my personal knowledge that the aforesaid tablets are taken as painkillers, to suppress the pain and to arrest the pain.3. I say that because of the pains, sufferings and mental strains. I had to often apply for leave at the place where I was posted. The number of days I was on leave and the leave that I have taken from 1.12.1993 to 17.06.2002 on account of pains, sufferings and mental strains is mentioned herein below:"From 22.11.93 to 23.12.93 - 32 days" 24.12.93 to 31.12.93 - 8 days (Sick leave-S.L.16 days)" 01.01.94 to 22.01.94 - 22 days (S.L. 44 days)" 27.07.94 to 7.08.94 - 12 days (S.L. 24 days)" 30.09.04 to - - - 1 days (S.L. 02 days)" 17.05.96 to 26.05.96 - 10 days" 15.07.96 to 21.07.96 - 7 days (S.L. 14 days)" 01.02.97 to 06.02.97 - 13 days" 19.03.99 to 26.03.99 - 8 days" 21.03.00 to 23.03.00 - 3 days (S.L. 6 days)" 17.03.01 to 22.03.01 - 6 days" 21.05.01 to 27.05.01 - 7 days" 21.06.01 to 23.06.01 - 3 days (S.L. 6 days)" 17.02.02 to 20.02.02 - 4 days (S.L. 8 days)" 13.03.02 to 22.03.02 - 10 days" 16.06.02 to 17.06.02 - 2 days (S.L. 4 days)" 21. The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondents abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief.However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitation. | 1[ds]15. We may hasten to add that the power conferred upon the consumer forums under Sections 12(3), 18 or 22 to reject the complaint at the stage of admission should not be exercised lightly because the Act has been enacted to provide for better protection of the interest of consumers and the speedy and inexpensive redressal mechanism enshrined therein is in addition to other remedies which may be available to the consumer under the ordinary law of land. Therefore, admission of the complaint filed under the Act should be the rule and dismissal thereof should be an exception. Of course, if the complaint is barred by time, the consumer forum is bound to dismiss the same unless the consumer makes out a case for condonation of delay under Sectionperusal of order dated 17.3.2006 shows that after adverting to the report of Dr. P. Jagannath, in which there was no mention of any gauze having been found in the abdomen of the respondent, the State Commission held that this was sufficient for recording a negative finding on the issue of negligence on the part of the appellant while conducting operation on 26.11.1993. The State Commission then observed that the complainant had not produced any prescription for the treatment taken for 10 years prior to 25.10.2002 to show that she was suffering from unbearable pain, was having sleepless nights and was unable to perform her duties as Nurse in Government Hospital, Goa and held that in the absence of such evidence, the period of limitation commenced from the date of discharge i.e., 30.11.1993 and the complaint filed in 2004 was clearly barred by time. The National Commission too opined that the cause of action first accrued to the respondent in November, 1993 when she was operated by the appellant but proceeded to observe that the same continued throughout the period during which she had constant pain in the abdomen and lastly it arose on 25.10.2002 i.e. the date on which she was operated at Lilavati Hospital and a piece of gauze was found in her abdomen.In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctors part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or hisdiscovers the harm/injury caused due to such act or the date when the patient or hiscould have, by exercise of reasonable diligence discovered the act constituting negligence.19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patients body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patients body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later.In the light of the above, it is to be seen whether the cause of action accrued to the respondent on 26.11.1993 i.e. the date on which the appellant performed Open Cholecystectomy and the piece of gauze is said to have been left in her abdomen or in November, 2002 when she received Histopathology report from Lilavati Hospital. If the respondent had not suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years.The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for anor C.T. scan. In the event of discovery of gauze in the respondents abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief.However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go foror C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitation. | 1 | 6,442 | 1,408 | ### 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:
suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years. This is clearly borne out from the averments contained in paragraph 8 of the complaint, the relevant portion of which is extracted below: ".............Even after discharging the complainant from the hospital the pain in the abdomen still persisted as on and off and it was giving unrest to the complainant again at home and at the place where she worked. The sufferings of the complainant were endless, had to spend sleepless nights and mental strain for almost nine years and as the pain became unbearable by the passage of time, the complainant had to be admitted in the Government Hospital in Goa in September, 2002................." A similar statement was made by her in the affidavit filed before the National Commission, paragraphs 2 and 3 (two paragraphs have been marked as 3) of which read as under: "2. I say that to arrest the pains, sufferings and mental strains during the period of nine years I was taking tablets and their names are as follows: Tablets CYCLOPAMBRUFEN -400mgCROCINDICLO FENAC3. As a nurse in the Government Hospital I know from my personal knowledge that the aforesaid tablets are taken as painkillers, to suppress the pain and to arrest the pain.3. I say that because of the pains, sufferings and mental strains. I had to often apply for leave at the place where I was posted. The number of days I was on leave and the leave that I have taken from 1.12.1993 to 17.06.2002 on account of pains, sufferings and mental strains is mentioned herein below:"From 22.11.93 to 23.12.93 - 32 days" 24.12.93 to 31.12.93 - 8 days (Sick leave-S.L.16 days)" 01.01.94 to 22.01.94 - 22 days (S.L. 44 days)" 27.07.94 to 7.08.94 - 12 days (S.L. 24 days)" 30.09.04 to - - - 1 days (S.L. 02 days)" 17.05.96 to 26.05.96 - 10 days" 15.07.96 to 21.07.96 - 7 days (S.L. 14 days)" 01.02.97 to 06.02.97 - 13 days" 19.03.99 to 26.03.99 - 8 days" 21.03.00 to 23.03.00 - 3 days (S.L. 6 days)" 17.03.01 to 22.03.01 - 6 days" 21.05.01 to 27.05.01 - 7 days" 21.06.01 to 23.06.01 - 3 days (S.L. 6 days)" 17.02.02 to 20.02.02 - 4 days (S.L. 8 days)" 13.03.02 to 22.03.02 - 10 days" 16.06.02 to 17.06.02 - 2 days (S.L. 4 days)" 21. The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondents abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief.However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitation.
### Response:
1
### Explanation:
she had constant pain in the abdomen and lastly it arose on 25.10.2002 i.e. the date on which she was operated at Lilavati Hospital and a piece of gauze was found in her abdomen.In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctors part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or hisdiscovers the harm/injury caused due to such act or the date when the patient or hiscould have, by exercise of reasonable diligence discovered the act constituting negligence.19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patients body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patients body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later.In the light of the above, it is to be seen whether the cause of action accrued to the respondent on 26.11.1993 i.e. the date on which the appellant performed Open Cholecystectomy and the piece of gauze is said to have been left in her abdomen or in November, 2002 when she received Histopathology report from Lilavati Hospital. If the respondent had not suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years.The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for anor C.T. scan. In the event of discovery of gauze in the respondents abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief.However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go foror C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitation.
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63 MOONS TECHNOLOGIES LTD (FORMERLY KNOWN AS FINANCIAL TECHNOLOGIES INDIA LTD) Vs. UNION OF INDIA | should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases as mentioned in Sir William Wades erudite and classic work on Administrative Law (5 th Edn.). But as that learned author observes (at p. 487), in principle there ought to be an observance of natural justice equally at both stages , and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.And he makes reference to the observations of Megarry, J. in Leary v. National Union of Vehicle Builders [(1971) 1 Ch. 34, 49]. Treating with another aspect of the point, that learned Judge said: If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall, [(1974) 42 D.L.R. (3d) 323]. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee, [(1974) 1 N.Z.L.R. 29] and so was the Court of Appeal of New Zealand in Reid v. Rowley [(1977) 2 N.Z.L.R. 472]. (at pp. 1065-1066) This judgment was the subject matter of comment in Union Carbide Corporation v. Union of India, [1991] Supp (1) SCR 251, where this Court held, following the judgment in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , that non-compliance with the obligation to issue notices to persons effected by the Bhopal gas leak did not, for this reason alone, vitiate the settlement that was entered into with Union Carbide by the Government on their behalf. This Court, in passing, commented that the principle laid down in Leary v. National Union of Vehicle Builders, [1971] Ch. 34 might perhaps be too broad a generalisation, except in cases involving public interest. This was an observation made in answer to an argument by Shri Shanti Bhushan, stating that a defect of natural justice always goes to the root of the matter. Ultimately, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. However, what is of fundamental importance is the fact that in the present situation, a clear statutory right is given to every member or creditor who shall be entitled to an assessment of compensation, first by the prescribed authority and then, a right of appeal to the Appellate Tribunal. In such cases, therefore, the orders of non-assessment by the prescribed authority can more appropriately be challenged in judicial review proceedings, in which the High Court, acting under Article 226 of the Constitution of India can, if an infraction of Section 396(3) is found, send the matter back to the prescribed authority to determine compensation after which the right of appeal under sub- section (3A) of Section 396 would then follow. In fact, in Writ Petition 2743 of 2014, which challenged both the draft order and the final order of amalgamation, the appellant took out a chamber summons for amendment of its writ petition to challenge the order of assessment of compensation, dated 01.04.2015, which amendment was allowed vide order dated 16.02.2016. The order of non-assessment of compensation has thus been challenged by FTIL in proceedings under Article 226 of the Constitution of India. Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit. | 1[ds]23. There is no doubt whatsoever that Section 396 cannot be challenged on the ground of Article 14 or Article 19, given Article 31A of the Constitution of India. However, this does not mean that Section 396 must be construed in such a fashion that it would lead to arbitrary or unreasonable results.26. In the present case, this judgment has no direct application except to say that Article 31A also constitutes a grave encroachment on fundamental rights, and must be construed strictly. The expression used in Article 31A is law, for which, one is to see the definition contained in Article 13(3). Law in Article 13(3) certainly includes order. The only question is whether this would include an administrative order as well27. It is clear, on a reading of Article 13(3), that the expression law, as defined in Article 13(3)(a), includes an Ordinance, rule, regulation, notification, and custom or usage having in the territory of India the force of law. Obviously, therefore, when the expression order is used, it would take colour from Ordinance, rule, regulation, notification, which are all legislative in nature, and not administrative. Even custom or usage having the force of law refers to general rules of conduct, as opposed to administrative orders passed on the facts of a given case. Construing Article 31A in the light of Article 13(3)(a), it is clear that the order referred to, can therefore, only be a legislative order. Examples of legislative orders are of the kind dealt with in Prag Ice & Oil Mills (supra) and Union of India and Anr. v. Cynamide India Ltd. and Anr., (1987) 2 SCC 720 [ Cynamide India], namely, orders passed under statutes which are in the nature of subordinate legislation, which deal generally with a whole class of persons who are governed by the same in which general rules of conduct are laid down28. This brings us to what is the nature of the order of the Central Government that is passed under Section 396. It has been argued on behalf of the Union of India, relying upon a number of judgments, that the nature of the order passed under Section 396 is that of delegated legislation. This being the case, it would, therefore, get immunity from challenge on the ground of Articles 14 and 19 of the Constitution of India, as it would then amount to a law within the meaning of Article 31A read with Article 13(3)(b)The fact that orders made by the Central Government for removing difficulties as contemplated under sub-clause (10) are also to be placed before the two Houses of Parliament makes it abundantly clear that the placing of the scheme before the two Houses is not a relevant test for making the scheme-framing process legislative. We accordingly hold that there is no force in the contention of Mr Salve that the process being legislative, rules of natural justice were not applicable. The fact that, under Section 396(5), the Central Government order has to be laid before the Houses of Parliament also does not detract from the fact that this order is administrative and not legislative in character. Applying these judgments to the Central Governments order passed under Section 396, it is clear that the order directly impacts the rights and liabilities of the companies, their shareholders and creditors, sought to be amalgamated under the order. Such order is not an order in general which applies to all such companies, but only to the particular companies sought to be amalgamated. There is no general rule of conduct, without reference to the particular case that is laid down by such an order. The Central Government order, ultimately, makes a specific direction qua two specific companies which are to be amalgamated. It is clear that such an order is not in the nature of legislation or delegated legislationSince Section 396(5) of the Companies Act is a provision akin to the provision considered in the case of K.I. Shephard (supra), the ratio of K.I. Shephard (supra) squarely applies. The judgment in New Bank of India Employees Union (supra), therefore, is of no assistance, given the statutory provision in the present case31. Learned Senior Advocates on behalf of the respondents then cited the judgment in Quarry Owners Association v. State of Bihar and Ors., (2000) 8 SCC 655. This judgment, in paragraphs 45 and 55, held that even a simple laying of an order before Parliament is a mandatory condition to be observed, and ordered that the particular order in that case be laid before the legislature as it had not so been laid earlier. This judgment again has nothing to do with whether, on account of laying before the legislature, an order is administrative or legislative in nature. This judgment also, therefore, does not carry us very much further32. Learned Senior Advocates on behalf of the respondents then cited a passage from J.K. (Bombay) (P) Ltd. (supra), and paragraph 23 in particular, in which this Court observed that an order made under Section 391 of the Companies Act has statutory force. The fact that a similar order made under Section 396 may also have statutory force again does not answer the precise question before us, namely, as to whether such orders having statutory force are administrative or legislative in nature. This observation again does not carry the matter very much further33. The order passed under Section 396 is qua particular companies and does not lay down any general rule of conduct by itself, but in fact, follows the general rule of conduct laid down by Section 396. Thus, the Central Government order, made under Section 396, must conform to the fundamental rights guaranteed by Articles 14 and 19(1)(g) of the Constitution of India. This Court has held in a catena of decisions that it is the substance of what is effected that counts when it comes to infraction of a fundamental right, and not the form.34. Various pre-requisites contained in the said Section must first be satisfied before the Section can be said to operate. First and foremost, the Central Government has to be satisfied, meaning thereby, that it must, on certain objective facts, come to a conclusion that amalgamation between two or more companies is necessary. This can only be done if the Central Government finds it essential, i.e., necessary to do so. Also, this can only be done in public interest (the Section originally contained the expression national interest. By Amendment Act 65 of 1960, national interest was substituted by public interest)What is important from the Notes on Clauses is the fact that it is only occasionally that cases arise where an amalgamation in national interest is clearly a necessity. It is made clear that the reason for Section 396 is that the observance of the usual procedure prescribed by the existing Act (namely, that contained in Sections 391 to 394) in such cases will lead to prolonged delays, which will be detrimental to national interest. The fact that the procedure contained in Sections 394 and 395 need not be carried out is made clear in the non-obstante clause contained in Section 396(1)36. Section 396(3), (3A), and (4) are also important. A condition precedent to the passing of an order by the Central Government under this Section is that every member or creditor of each of the companies before amalgamation shall have, as nearly as may be, the same interest in or rights against the company resulting from the amalgamation as he had in the erstwhile company either as a member or a creditor, and if this is not so, such member or creditor shall be entitled to compensation which is to be assessed by such authority as may be prescribed. From the order of such assessment, an appeal is provided by sub-section (3A). What is important is the mandatory language contained in sub-section (4), which states that no order shall be made under the Section unless the time for preferring an appeal under sub-section (3A) has expired, or where any such appeal has been preferred, the appeal has been finally disposed of. This makes it clear that unless an order of compensation is first made under sub- section (3), and an appeal therefrom has either not been filed or has been disposed of, no order of amalgamation can be made. Another condition precedent is an inbuilt provision for natural justice, namely, that a proposed draft order has first been sent to each of the companies concerned. The companies may then send suggestions or objections to the Central Government, which the Central Government must first consider before passing the final order. Such objections and suggestions can also be sent from any class of shareholders of either of the companies, or from any creditors or class of creditors of either of the companies.These observations were made in the context of an argument that differential treatment was accorded to the State Trading Corporation vis-à-vis private importers in that the customs duty for the State Trading Corporation had been reduced by notification under Section 25(2) of the Customs Act, 1962. What is important to note is that judicial review consisted of examining whether the reasons which prompted the Government to pass the exemption orders could be said to be irrelevant or unreasonable. If so, the orders would be struck down in exercise of judicial review42. Thus, at the very least, it is clear that the Central Governments satisfaction must be as to the conditions precedent mentioned in the Section as correctly understood in law, and must be based on facts that have been gathered by the Central Government to show that the conditions precedent exist when the order of the Central Government is made. There must be facts on which a reasonable body of persons properly instructed in law may hold that it is essential in public interest to amalgamate two or more companies. The formation of satisfaction cannot be on irrelevant or imaginary grounds, as that would vitiate the exercise of power44. In J. Jayalalitha v. Union of India, (1999) 5 SCC 138 , this Court dealt with an argument that there is no guideline contained in Section 3(1) of the Prevention of Corruption Act, 1988, when the Section empowers the Government to appoint as many Special Judges as may be necessary. It was stated that this word has a precise meaning and means what is indispensable, needful or essential [see paragraph 14]. It is thus clear that the Central Governments mind has to be applied to whether a compulsory amalgamation under Section 396 is indispensably necessary, important in the highest degree, and whether such amalgamation is both basic and necessary45. The third pre-requisite of Section 396 is that the Central Government must apply its mind when compulsorily amalgamating two or more companies in the public interest. Public interest is an expression which is wide and amorphous and takes colour from the context in which it is used. However, like the expression public purpose, what is important to be noted is that public interest is the general interest of the community, as distinguished from the private interest of an individual [see State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors., [1952] 3 SCR 889 at pp. 1073-1075]54. In the context of compulsory amalgamation of two or more companies, the expression public interest would mean the welfare of the public or the interest of society as a whole, as contrasted with the selfish interest of a group of private individuals. Thus, public interest may have regard to the interest of production of goods or services essential to the nation so that they may contribute to the nations welfare and progress, and in so doing, may also provide much needed employment. Public interest in this context would, therefore, mean the combining of resources of two or more companies so as to impact production and consumption of goods and services and employment of persons relatable thereto for the general benefit of the community. Conversely, any action that impedes promotion of industry or obstructs growth which is in national or public interest would run counter to public interest as mentioned in this SectionThe report then goes on to say that there was no documentation in relation to warehouse activities for long term trades indicating that such contracts were not secured by warehouse stocks. The warehouses were customer managed warehouses and the underlying collateral were not in custody of NSEL. NSEL did not have control over these warehouses and Grant Thornton was denied access to number of warehouses. The Warehouse Development and Regulatory Authority had in fact rejected NSELs application for registration of its warehouses way back on 16.05.2011. Notwithstanding such rejection, NSELs website represented that its warehouses were registered with the Authority. No verification or due diligence was ever undertaken by NSEL to ensure compliance by its members of the conditions outlined in its rules and byelaws even though in terms of NSEL byelaws, warehouse receipt issued by NSEL were meant to evidence a commodity being held in an approved warehouse. NSEL did not insist upon deposit of commodities in the warehouses prior to executing sale transactions. Instead NSEL resorted to issuing Delivery Allocation Reports (DAR) representing to genuine investors that each transaction was delivery based and backed at the time of sale by the required quantity of commodities in its warehousesBased on the Grant Thornton report and the FMC order, the draft amalgamation order dated 21.10.2014 then relied on the same facts, as did the final assessment order. The final amalgamation order also refers to an investigation under Section 209A into the affairs of NSEL which led to infractions of Sections 211, 217 and 292A of the Companies Act. These are compoundable offences which have, in fact, been compounded by orders dated 03.03.2016 and 31.05.2016 by the concerned authority55.3. We have seen that neither FTIL nor NSEL has denied the fact that paired contracts in commodities were going on, and by April to July, 2013, 99% (and excluding E-series contracts), at least 46% of the turnover of NSEL was made up of such paired contracts. There is no doubt that such paired contracts were, in fact, financing transactions which were distinct from sale and purchase transactions in commodities and were, thus, in breach of both the exemptions granted to NSEL, and the FCRA. We have also seen that NSEL throughout kept representing that it was, in fact, a commodity exchange dealing with spot deliveries. Apart from the Grant Thornton report and the FMC order, we have also seen that Shri Jignesh Shah, on 10.07.2013, made representations to the DCA and the FMC, in which he stated that NSEL had full stock as collateral; 10-20% of open position as margin money; and that the stock currently held in NSELs 120 warehouses was valued at INR 6000 crore, all of which turned out to be incorrect. Further, there is no doubt whatsoever that in July, 2013, as a result of NSEL stopping trading on its exchange, a payment crisis of approximately INR 5600 crore arose. The further question that remains is whether, given these facts, the conditions precedent for the applicability of Section 396 were followed56. When it comes to whether the Central Governments satisfaction as to whether it was essential to amalgamate the aforesaid companies, what must be borne in mind is that NSEL had itself offered a settlement scheme to pay back the persons who have allegedly been. It was found that this scheme could not really take off, as a result of which, large amounts continued to be owed to such persons. That this was the real concern of the FMC is clear from a letter dated 18.08.2014 addressed by the FMC to the Secretary, Ministry of Corporate Affairs.This letter would show that the immediate reason for amalgamation, according to the FMC, and which was faithfully carried out by Government, is that NSEL, as a corporate entity, seems financially and physically incapable of effecting any substantial recovery from defaulting members. This was the emergency situation according to the FMC, which should lead to an order of amalgamation of the holding and subsidiary companies so that the holding companys financial resources could be used to pursue proceedings by which monies owed to the alleged duped investors/traders could be recovered56.2. What concerned the FMC in August 2014 has, by the date of the final amalgamation order, been largely redressed without amalgamation. The emergency situation of 2013 which, even according to the Central Government, required the emergent step of compulsory amalgamation has, by the time of the passing of the Central Government order, disappeared. Thus, the raison dêtre for applying Section 396 of the Companies Act has, by the passage of time, itself disappeared. In fact, as on today, decrees/awards worth INR 3365 crore have been obtained against the defaulters, with INR 835.88 crore crystallised by the committee set up by the High Court, pending acceptance by the High Court, even without using the financial resources of FTIL as an amalgamated company. What is, therefore, important to note is that what was emergent, and therefore, essential, even according to the FMC and the Government in 2013- 2014, has been largely redressed in 2016, by the time the amalgamation order was made. Also, the Central Government order does not apply its mind to the essentiality aspect of Section 396 at all. In fact, in several places, it refers to essential public interest as if essential goes with public interest instead of being a separate and distinct condition precedent to the exercise of power under Section 396. On facts, therefore, it is clear that the essentiality test, which is the condition precedent to the applicable to Section 396, cannot be said to have been satisfied58. The High Court comment on the aforesaid affidavit is not correct. The affidavit proceeds on the footing that since the activities of NSEL have come to a grinding halt, FTIL would help NSEL to effect recoveries from defaulters. The affidavit nowhere states that there is no problem in the functioning of NSEL, or that NSEL has or does not have the necessary wherewithal to effect recovery from defaulters. Even in the hearing before us, FTIL has submitted an affidavit-cum- undertaking dated 11.04.2019, stating that it will continue to infuse funds into NSEL so that recovery of dues from defaulters does not, in any manner, get stymied. We take this affidavit and undertaking on record, and hold FTIL to this undertaking made before this Court59.2. It is important to note that the first and second grounds mentioned by the High Court are not contained in the draft order of amalgamation. Had they been so contained, objections and suggestions would have been made by all stakeholders, which the Central Government would then have been bound to consider before passing the final order. However, it was argued on behalf of the respondents that the first and second grounds are, in reality, inferences drawn from facts which are already stated in the order and these inferences do not need to be stated in the draft order. We are afraid that this argument is incorrect inasmuch as grounds contained in reasons (a) and (b) are important grounds which have a vital bearing on the amalgamation in question. If these grounds were contained in the draft order, there is no doubt that the shareholders and creditors of FTIL, and FTIL itself would have had an opportunity to comment on the same. For example, the business realities of the case are facts known to FTIL; and NSEL, being FTILs alter ego, is the subject matter of dispute in various suits that have been filed and are pending adjudication. FTIL could have responded giving reasons as to why NSEL is not its alter ego. Also, whether the amalgamation is, in fact, to restore or safeguard public confidence in forward contracts and exchanges is a subject matter on which FTIL, its shareholders and creditors, could have commented. Equally, whether NSELs exchange was an essential and integral part of the Indian economy and financial system, and whether this defunct business could be consolidated so as to impact the economy are all matters for comment by FTIL and its shareholders and creditors. For all these reasons, we cannot accede to the respondents arguments on this score. On this ground alone, even assuming that these two grounds obtained and can be culled out from the final order, not being contained in the draft order, the said grounds would be in breach of Section 396(3) and (4), and therefore, cannot be looked at to support the orderIt will be noticed that the objection raised in paragraph 7.2.1 is that Section 396 can be used in the case of Government companies alone, whereas the answer given is that this cannot be so, given the business realities of the case and the FMC order of 17.12.2013 which throw ample light to the grave shattering of public confidence and the purpose of establishing Commodity Exchange has been defeated . First and foremost, what is important to notice is that the business realities of the case are what is contained in the recommendations of the FMC. We have seen that these recommendations are in the form of a letter dated 18.08.2014, in which the business reality is the fact that dues of INR 5600 crore have to be paid, and that NSEL does not have the wherewithal to do so. Thus, its parent companys financial resources ought to be used to effect such payment. This business reality, therefore, speaks only of the private interest of the investors/traders who have been allegedly duped (which fact will only be established in suits filed by them in 2014), and nothing beyond (which would show some vestige of public interest). Equally, the grave shattering of public confidence and purpose of establishing commodity exchanges having been defeated, according to the Central Government, is a gloss on the FMC order dated 17.12.2013. If this were so, one would have expected a resuscitation or revival of the commodities exchange of NSEL, which could have been achieved by takeover of its management. It is difficult to imagine that grave shattering of public confidence by the permanent shutting down of the commodities exchange of the NSEL would be remedied only by facilitating the paying of dues to certain allegedly duped investors/traders, which fact will be proved or disproved in suits filed by them which are pending adjudication in the Bombay High Court. In any case, this reason is wholly irrelevant as an answer to the objection raised by FTIL which, as we have seen, is an objection stating that the Section applies to Government companies alone. Also, had FTIL made no such objection, no such answer would have been forthcoming. As far as paragraphs 7.2.6 and 7.2.8 of the order are concerned, what is admitted in the order itself, is that there is no adjudication on the fraud in the facts of the present case, and thus, not an exercise of lifting of the corporate veil of the pre-amalgamation companies. The amalgamation order contradicts itself by then stating that NSEL is the alter ego of FTIL, and thus, the two companies are practically one entity. In any event, these paragraphs do not indicate as to how the alter ego argument impacts public interest. For all these reasons, therefore, neither reason (a) nor reason (b) ought to detain us any further. Reason (c) is, therefore, the only reason that really remains, as is contained in the letter of 18.08.2014 by the FMC to the Central Government. We have already seen that this reason, by itself, is the protection of the private interest of a group of investors/traders, as distinct from public interest59.4. It is important to note that under Section 396(4)(b), the Central Government may, after considering suggestions and objections from the stakeholders mentioned, make modifications in the draft order as may seem to it desirable in the light of such suggestions and objections. No modification has been made in the body of the Central Government order as finally made. If the Central Government had actually considered that each of these three reasons impact public interest, it would have explicitly said so after suggestions and objections were made by the various stakeholders. The fact that the Central Government has not amended the body of the final order is of great significance – it is only the original reasons given in the draft order that continue as such in the final order which, as we have seen, are not in furtherance of public interest at all. Reasons (a) and (b), part of which is culled out from answers to objections and suggestions given in the final order, is only given separately by the Central Government after the amalgamation order to show that the principles of natural justice as laid down by sub-section (4) of Section 396 have, in fact, been followed. This becomes clear from paragraphs 6.3 and 7 of the final order, which read as follows:6.3. The Central Government received in writing and through email various objections / suggestions from various classes of stakeholders including the shareholders, creditors, and all other interested parties claiming that monies are recoverable from the proceedings arising out of the business of the dissolved company7. Dealing with objections, suggestions and submissions of FTIL, NSEL and other parties – The Parties herein have made various objections, suggestions and submissions on the proposed amalgamation u/s. 396 of the Act on the order dated 21- 10-2014 in Draft form issued by the Central Government. The said objections, suggestions and submissions were made during the course of hearing and written submissions (physically and electronically) received by the Central Government on various dates. The said objections, suggestions and submissions made by each of the parties are dealt in the manner herein under59.5. So far, we have gone by the Central Government order as it stands. The Bombay High Court, in stating reasons (a), (b), and (c) as grounds of public interest, has gone much further than even the answer given to the objections that are contained in the order itself. Restoring/safeguarding public confidence in forward contracts and exchanges, which are an integral and essential part of the Indian economy and financial system, by consolidating the businesses of NSEL and FTIL, is not contained in the answer given to objections in the order. First and foremost, restoring public confidence is no part of the order. What is mentioned is only the fact that public confidence has been shattered, as is reflected by the FMC order dated 17.12.2013. Secondly, the entire expression, which are an integral and essential part of Indian economy and financial system, by consolidating the businesses of NSEL and FTIL is no part even of this answer given, but a gloss given by the High Court itself relatable to this answer. Similarly, when it comes to reason (b), giving effect to business realities of the case contained in the answer to objections does not contain by consolidating the businesses of FTIL and NSEL, nor does it contain and preventing FTIL from distancing itself from NSEL, which is, even otherwise, its alter ego . On the contrary, the High Court itself mentions, in paragraph 355, that this is also not a case where the Central Government has, in fact, lifted the corporate veil, despite the alleged non-existence of the circumstances justifying lifting of such corporate veil , and further, this is not a case where the Central Government has lifted the corporate veil and sought to apportion any liability upon either NSEL or FTIL . For all these reasons, we find that no reasonable body of persons properly instructed in law could possibly arrive at the conclusion that the impugned order has been made in public interest60. The learned Senior Advocates appearing on behalf of the respondents has placed great reliance on the judgment in Ganesh Bank (supra). In this judgment, the Appellant Bank was amalgamated with Federal Bank under Section 45 of the Banking Regulation Act, 1949. Federal Bank was selected from out of several other banks by the Reserve Bank of India as its offer to amalgamate with the Appellant Bank was unconditional, Federal Bank undertaking to make full payment to depositorsThus, two features of Ganesh Bank (supra) distinguish the said case from the facts of the present case. First, that under Section 45 of the Banking Regulation Act, the interest of the depositors is to be looked at; and it was this reason that led to the amalgamation. Secondly, this Court found that after exploring other options, the only option left was that of amalgamation62. In point of fact, the contrast between Section 45(4) of the Banking Regulation Act and Section 396 of the Companies Act becomes important. Under Section 45(4)(b) and (c) of the Banking Regulation Act, the satisfaction of the Reserve Bank of India for preparing a scheme of amalgamation can be in the interest of the depositors of a particular bank or in order to secure the proper management of a particular banking company. This must be contrasted with clauses (a) and (d) of Section 45(4), which speak of public interest and the interest of the banking system of the country as a whole. This judgment, on facts, merged a financially weak bank with a financially strong bank in the interest of the depositors of the financially weak bank. It is important to note that the business of the two merged entities is the same, as also Federal Banks (i.e., the strong banks) willingness to merge, being an unconditional offer to merge because it felt that post merger, it could have a significant presence in western Maharashtra and the Belgaum area of Karnataka, and could augment its credit disbursal to the agricultural sector. Also, since the interest of depositors is a separate head, based upon which the Reserve Bank of India may amalgamate two banking companies, it is clear that this reason alone will not go to public interest, which is a separate head contained in Section 45(4). It is in this context that the observation contained in paragraph 44 is made, namely:44. Under Section 45 of the Act, the primary consideration is public interest. There is an underlying object of acting swiftly and decisively to protect the interests of depositors and ensure public confidence in the banking system. The emergent situation which warrants action with expedition cannot be lost sight of while deciding the legality of the actionAs we have already seen, the emergent situation which obtained in 2013 was no longer there in 2016 when the final order of amalgamation was passed in the present case63. Valiant attempts have been made by counsel in the High Court as well as counsel in this Court to support the order on grounds which are outside the order, stating that such grounds make it clear that in any case, the Government order has been made in public interest.We are of the view that it is the Central Government that has to be satisfied that its order is in public interest and such satisfaction must, therefore, be of the Central Government itself and must, therefore, appear from the order itself. All these valiant attempts made to sustain such order must be rejectedIt will be seen that there is no broad proposition that the case of Mohinder Singh Gill (supra) will not apply where larger public interest is involved. It is only subsequent materials, i.e., materials in the form of facts that have taken place after the order in question is passed, that can be looked at in the larger public interest, in order to support an administrative order. To the same effect is the judgment in PRP Exports and Ors. v. Chief Secretary, Government of Tamil Nadu and Ors., (2014) 13 SCC 692 [ at paragraph 8]. It is nobodys case that there are any materials or facts subsequent to the passing of the final order of the Central Government that have impacted the public interest, and which, therefore, need to be looked at. On facts, therefore, the two judgments cited on behalf of the respondents have no application. Thus, it is clear that no reasonable body of persons properly instructed in law could possibly hold, on the facts of this case, that compulsory amalgamation between FTIL and NSEL would be in public interest65. Section 396(3) speaks of a shareholders or a creditors interest in or rights against the company resulting from an amalgamation order. Such interest in or rights against obviously refers to real and substantive rights, as opposed to rights that are only in form. A shareholder or creditor gets effected by an amalgamation order if the value of his share gets depleted as a result of the amalgamation and if dividends that have been paid to him are likely to come down as a result of the amalgamation. Likewise, a creditor of a solvent company is directly effected by an amalgamation by which the amount loaned by such creditor becomes, as a result of the amalgamation, less likely to be paid back in time, than if the amalgamation did not take place. Such rights and interests of members and creditors are substantive rights which, when effected by the amalgamation, lead to compensation having to be paid. Every shareholder of a company and indeed, every creditor of a company, is concerned only with the economic value of his share or the loan granted to a company, as the case may be. The moment the share value, in real terms, is likely to dip, and/or loans granted are likely not to be repaid in time or at all as a result of an amalgamation, such members or creditors of the amalgamating company are equally entitled to be compensated for this economic loss as are the members and creditors of the amalgamated company, depending on the facts of each case. A reasonable construction must be given to Section 396. Also, the suggested construction by the respondents, as has been accepted by the impugned judgment, operates harshly and ridiculously, and being opposed to justice and reason, cannot possibly be adopted by this Court. It is clear that Section 396(3) refers to the economic loss that is to be borne by shareholders and members of both companies66. Thus, it is clear from a reading of Section 396(3), (3A), and (4) (aa) that every member or creditor of each of the companies before amalgamation shall have, as nearly as may be, the same interest in or rights against the company resulting from the amalgamation as he had in the original company. To the extent to which the interest or rights of such member or creditor are less than his interest or rights against the original company, post amalgamation, he shall be entitled to compensation which is to be assessed. Post assessment, if such member or creditor is aggrieved, he may prefer an appeal to the appellate authority under sub-section (3A). Under sub-section (4)(aa), no order of amalgamation can be made unless the time for preferring an appeal under sub-section (3A) has expired, or where any such appeal has been preferred, the appeal has been finally disposed ofOn the facts of the present case, we are directly concerned with points (iii) and (vii). It has been argued that the profits of the company post- amalgamation will obviously come down, and dividends payable to shareholders will consequently either come down or be wiped out if the low net worth of NSEL is taken into account post amalgamation, together with potential liabilities of the amalgamated company, which may have to be paid in the near future. Secondly, if the amalgamated company is wound up, the amount that is payable to the shareholders post-amalgamation will be much less, if at all anything is to be paid, than pre-amalgamationWhat is clear from the various methods of valuation of shares, when it comes to such valuation qua the transferor and transferee company, is that the market value method is one method in which shares can be valued so that their equivalent can then be provided for in the amalgamated company. This would be nothing other than what those shares were worth in the market on a particular day or an average taken within a certain period. What is important to note is that the market value of shares is market value of shares reflective of their economic value, being an interest measured by a sum of money, is not something that is completely alien to determining the rights of or interest of a shareholder in the transferor or transferee company, as the case may be72. In fact, the Government order dated 12.02.2016 itself reflects the net worth of NSEL as INR 8.86 crore from its balance sheet dated 31.03.2015, despite its capital being INR 60 crore, inasmuch as the total reserve and surplus is a negative figure of INR 51.54 crore. As against this, FTILs balance sheet, as on 31.03.2015, discloses that for the same year, FTILs net worth is INR 2779.94 crore. Also, FTIL has been paying dividends to its shareholders ranging from 1000% to 250% for the years 2007-2008 till 2015-2016. On the other hand, NSEL has never paid a single dividend ever since its inception. Post amalgamation, therefore, dividend payable to the shareholders of FTIL is bound to come down. Correspondingly, the marketable value of such shares will also fallFrom the Directors Report and consolidated financial statements of NSEL, it becomes clear that the company may be exposed to liabilities in case of any adverse outcome in any of the proceedings that may be pending, as a result of which, it may have to pay back the whole or some part of the INR 5600 crore owed to the alleged investors/traders by the 24 defaulters who are members of NSEL. This would certainly impact the economic value of shares held in FTIL as this is one factor that would, post amalgamation, depress the market value of shares held by such shareholder, and would also impact the dividend payable on such shares post amalgamation74. The impugned judgment has also held that no material was produced before the Court to show that share prices would in fact plummet post-amalgamation. This is despite the fact that the impugned judgment itself refers to the fact that since the publication of the draft order on 21.10.2014, the share value which was INR 211.10, dropped to INR 174.55 ten days later. The Division Bench then goes on to state that it is not possible to hold that any case of serious erosion in economic value has at all been made out, inasmuch as by 21.10.2014, when the draft order of amalgamation was made available to companies, the news of collapse of NSELs exchange was already in public domain. This is wholly incorrect for the reason that the news of collapse took place in July, 2014, i.e., over two months before the publication of the draft order. It is well known that the stock market is extremely sensitive to the slightest event that may render a company less profitable. Over two months is too long a period to relate a share value of INR 211.10 drastically falling to INR 174.55. On the other hand, it is obvious that the publication of the draft order on 21.10.2014 had the impact of the share price reducing by a substantial amount, ten days later. In fact, a reference to the share prices of NSEL furnished by the learned Additional Solicitor General makes it clear that the moment the final amalgamation order dated 12.02.2016 was publicised, the share price fell from INR 89.90 on 12.02.2016 to INR 73.90 on 24.02.2016 and further to INR 73.10 on 29.02.2016. Incidentally, the High Court realised this, and finally incorrectly concludes, there is thus substantial compliance with the provisions of Section 396(3). Given the fact that the assessment order dated 01.04.2015 did not provide any compensation to either the shareholders or creditors of FTIL for the economic loss caused by the amalgamation in breach of Section 396(3), it is clear that an important condition precedent to the passing of the final amalgamation order was not met. On this ground also, therefore, the final amalgamation order has to be held to be ultra vires Section 396 of the Companies Act, and, being arbitrary and unreasonable, violative of Article 14 of the Constitution of India75. However, the learned Senior Advocates for the respondents have argued that an order of nil compensation is equally an order that is passed under Section 396(3) which could have been appealed against but was not appealed against.For this reason, therefore, it is not correct to state that the condition precedent mentioned in Section 396(4)(aa) has not been fulfilled. It will be noticed that the language used in the appeal provision, i.e. Section 396(3A), is any person aggrieved by any assessment of compensation made by the prescribed authority under sub-section (3) may…… appeal to the Tribunal, and thereupon the assessment of the compensation shall be made by the Tribunal. The pre-requisites for the application of sub- section (3A) are that a person first be aggrieved by an assessment of compensation made by the prescribed authority. Where no assessment of compensation whatsoever is made by the prescribed authority (and on the facts here, the prescribed authority has not, in fact, stated that for the reasons given by it, compensation awarded to FTIL, its shareholders and creditors is nil), no person can be aggrieved by an order which does not assess any compensation, which may be interfered with by the Appellate Tribunal which must then assess the compensation for itself. The statute clearly entitles such shareholders and creditors to have compensation assessed first by the prescribed authority and then by the appellate authority.This judgment was the subject matter of comment in Union Carbide Corporation v. Union of India, [1991] Supp (1) SCR 251, where this Court held, following the judgment in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , that non-compliance with the obligation to issue notices to persons effected by the Bhopal gas leak did not, for this reason alone, vitiate the settlement that was entered into with Union Carbide by the Government on their behalf. This Court, in passing, commented that the principle laid down in Leary v. National Union of Vehicle Builders, [1971] Ch. 34 might perhaps be too broad a generalisation, except in cases involving public interest. This was an observation made in answer to an argument by Shri Shanti Bhushan, stating that a defect of natural justice always goes to the root of the matter. Ultimately, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. However, what is of fundamental importance is the fact that in the present situation, a clear statutory right is given to every member or creditor who shall be entitled to an assessment of compensation, first by the prescribed authority and then, a right of appeal to the Appellate Tribunal. In such cases, therefore, the orders of non-assessment by the prescribed authority can more appropriately be challenged in judicial review proceedings, in which the High Court, acting under Article 226 of the Constitution of India can, if an infraction of Section 396(3) is found, send the matter back to the prescribed authority to determine compensation after which the right of appeal under sub- section (3A) of Section 396 would then follow. In fact, in Writ Petition 2743 of 2014, which challenged both the draft order and the final order of amalgamation, the appellant took out a chamber summons for amendment of its writ petition to challenge the order of assessment of compensation, dated 01.04.2015, which amendment was allowed vide order dated 16.02.2016. The order of non-assessment of compensation has thus been challenged by FTIL in proceedings under Article 226 of the Constitution of India. Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit. | 1 | 39,286 | 8,348 | ### Instruction:
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should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases as mentioned in Sir William Wades erudite and classic work on Administrative Law (5 th Edn.). But as that learned author observes (at p. 487), in principle there ought to be an observance of natural justice equally at both stages , and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.And he makes reference to the observations of Megarry, J. in Leary v. National Union of Vehicle Builders [(1971) 1 Ch. 34, 49]. Treating with another aspect of the point, that learned Judge said: If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall, [(1974) 42 D.L.R. (3d) 323]. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee, [(1974) 1 N.Z.L.R. 29] and so was the Court of Appeal of New Zealand in Reid v. Rowley [(1977) 2 N.Z.L.R. 472]. (at pp. 1065-1066) This judgment was the subject matter of comment in Union Carbide Corporation v. Union of India, [1991] Supp (1) SCR 251, where this Court held, following the judgment in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , that non-compliance with the obligation to issue notices to persons effected by the Bhopal gas leak did not, for this reason alone, vitiate the settlement that was entered into with Union Carbide by the Government on their behalf. This Court, in passing, commented that the principle laid down in Leary v. National Union of Vehicle Builders, [1971] Ch. 34 might perhaps be too broad a generalisation, except in cases involving public interest. This was an observation made in answer to an argument by Shri Shanti Bhushan, stating that a defect of natural justice always goes to the root of the matter. Ultimately, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. However, what is of fundamental importance is the fact that in the present situation, a clear statutory right is given to every member or creditor who shall be entitled to an assessment of compensation, first by the prescribed authority and then, a right of appeal to the Appellate Tribunal. In such cases, therefore, the orders of non-assessment by the prescribed authority can more appropriately be challenged in judicial review proceedings, in which the High Court, acting under Article 226 of the Constitution of India can, if an infraction of Section 396(3) is found, send the matter back to the prescribed authority to determine compensation after which the right of appeal under sub- section (3A) of Section 396 would then follow. In fact, in Writ Petition 2743 of 2014, which challenged both the draft order and the final order of amalgamation, the appellant took out a chamber summons for amendment of its writ petition to challenge the order of assessment of compensation, dated 01.04.2015, which amendment was allowed vide order dated 16.02.2016. The order of non-assessment of compensation has thus been challenged by FTIL in proceedings under Article 226 of the Constitution of India. Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit.
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ten days later. The Division Bench then goes on to state that it is not possible to hold that any case of serious erosion in economic value has at all been made out, inasmuch as by 21.10.2014, when the draft order of amalgamation was made available to companies, the news of collapse of NSELs exchange was already in public domain. This is wholly incorrect for the reason that the news of collapse took place in July, 2014, i.e., over two months before the publication of the draft order. It is well known that the stock market is extremely sensitive to the slightest event that may render a company less profitable. Over two months is too long a period to relate a share value of INR 211.10 drastically falling to INR 174.55. On the other hand, it is obvious that the publication of the draft order on 21.10.2014 had the impact of the share price reducing by a substantial amount, ten days later. In fact, a reference to the share prices of NSEL furnished by the learned Additional Solicitor General makes it clear that the moment the final amalgamation order dated 12.02.2016 was publicised, the share price fell from INR 89.90 on 12.02.2016 to INR 73.90 on 24.02.2016 and further to INR 73.10 on 29.02.2016. Incidentally, the High Court realised this, and finally incorrectly concludes, there is thus substantial compliance with the provisions of Section 396(3). Given the fact that the assessment order dated 01.04.2015 did not provide any compensation to either the shareholders or creditors of FTIL for the economic loss caused by the amalgamation in breach of Section 396(3), it is clear that an important condition precedent to the passing of the final amalgamation order was not met. On this ground also, therefore, the final amalgamation order has to be held to be ultra vires Section 396 of the Companies Act, and, being arbitrary and unreasonable, violative of Article 14 of the Constitution of India75. However, the learned Senior Advocates for the respondents have argued that an order of nil compensation is equally an order that is passed under Section 396(3) which could have been appealed against but was not appealed against.For this reason, therefore, it is not correct to state that the condition precedent mentioned in Section 396(4)(aa) has not been fulfilled. It will be noticed that the language used in the appeal provision, i.e. Section 396(3A), is any person aggrieved by any assessment of compensation made by the prescribed authority under sub-section (3) may…… appeal to the Tribunal, and thereupon the assessment of the compensation shall be made by the Tribunal. The pre-requisites for the application of sub- section (3A) are that a person first be aggrieved by an assessment of compensation made by the prescribed authority. Where no assessment of compensation whatsoever is made by the prescribed authority (and on the facts here, the prescribed authority has not, in fact, stated that for the reasons given by it, compensation awarded to FTIL, its shareholders and creditors is nil), no person can be aggrieved by an order which does not assess any compensation, which may be interfered with by the Appellate Tribunal which must then assess the compensation for itself. The statute clearly entitles such shareholders and creditors to have compensation assessed first by the prescribed authority and then by the appellate authority.This judgment was the subject matter of comment in Union Carbide Corporation v. Union of India, [1991] Supp (1) SCR 251, where this Court held, following the judgment in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , that non-compliance with the obligation to issue notices to persons effected by the Bhopal gas leak did not, for this reason alone, vitiate the settlement that was entered into with Union Carbide by the Government on their behalf. This Court, in passing, commented that the principle laid down in Leary v. National Union of Vehicle Builders, [1971] Ch. 34 might perhaps be too broad a generalisation, except in cases involving public interest. This was an observation made in answer to an argument by Shri Shanti Bhushan, stating that a defect of natural justice always goes to the root of the matter. Ultimately, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. However, what is of fundamental importance is the fact that in the present situation, a clear statutory right is given to every member or creditor who shall be entitled to an assessment of compensation, first by the prescribed authority and then, a right of appeal to the Appellate Tribunal. In such cases, therefore, the orders of non-assessment by the prescribed authority can more appropriately be challenged in judicial review proceedings, in which the High Court, acting under Article 226 of the Constitution of India can, if an infraction of Section 396(3) is found, send the matter back to the prescribed authority to determine compensation after which the right of appeal under sub- section (3A) of Section 396 would then follow. In fact, in Writ Petition 2743 of 2014, which challenged both the draft order and the final order of amalgamation, the appellant took out a chamber summons for amendment of its writ petition to challenge the order of assessment of compensation, dated 01.04.2015, which amendment was allowed vide order dated 16.02.2016. The order of non-assessment of compensation has thus been challenged by FTIL in proceedings under Article 226 of the Constitution of India. Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit.
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S.N. Prasad Vs. Monnet Finance Ltd. and Ors | under Section 11 of the Act was filed in 1998 and decided in 2000 (long prior to the decision in SBP & Co. v. Patel Engineering Ltd., VIII (2005) SLT 405=IV (2005) CLT 236 (SC)=(2005) 8 SCC 618 the prevailing view was that the orders under Section 11 of the Act were administrative orders and that the Designate of the Chief Justice appointing an Arbitrator was not adjudicating on any disputed question of fact, including the existence of any valid arbitration agreement; and that the Arbitrator was required to decide about the existence of arbitration agreement and the arbitrability. 16. The first respondent contended that the appellant having agreed to be a guarantor for the repayment of the loan, cannot avoid arbitration by contending that he was not a signatory to the loan agreement containing the arbitration clause. It was submitted that the liability of the principal debtor and guarantors was joint and several and therefore there could be only one proceeding against all of them; and that if the contention of the appellant was accepted, it would necessitate two proceedings in regard to the same loan transaction and same cause of action, that is an arbitration proceedings against the borrower and one of its guarantors (respondents 2 and 3) and a separate suit against the other guarantor (appellant). It was further submitted that multiple proceedings may lead to divergent findings and results, leading to an anomalous situation. It was also submitted that the letter dated 27.10.1995 guaranteeing the loan of Rs. 75 lakh was written by the appellant, as a Director of the borrower company; and that as the appellant had already given a guarantee letter dated 27.10.1995, he was not required to execute the tripartite loan agreements containing the arbitration clause; that the appellant was aware of the terms of the loan and was further aware that loan agreements with arbitration clause had to be executed; and that therefore it should be deemed that the appellant had agreed to abide by the terms contained in the loan agreements, including the arbitration clause. We find no merit in these contentions. 17. When the appellant gave the guarantee letter dated 27.10.1995, he could not be imputed with the knowledge that the loan agreements which were to be executed in future (on 28.10.1995 and 6.11.1995) would contain an arbitration clause. Further, the appellant did not state in his letter dated 27.10.1995 that he would be bound by the terms of loan agreement/s that may be executed by the borrower. Therefore the question of appellant impliedly agreeing to the arbitration clause does not arise. 18. The apprehension of the first respondent that an anomalous situation may arise if there are two proceedings (one arbitration proceedings against the borrower and one guarantor and a suit against another guarantor), is not a relevant consideration as any such anomalous situation, if it arises, would be the own-making of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get the appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitration clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is whether there was an arbitration agreement with the appellant.19. As there was no arbitration agreement between the parties (the first respondent and appellant), the impleading of appellant as a respondent in the arbitration proceedings and the award against the appellant in such arbitration cannot be sustained. As a consequence, both the arbitration awards, as against the appellant are liable to be set aside. If the first respondent wants to enforce the alleged guarantee of the appellant, it is open to the first respondent to do so in accordance with law.20. The above discussion and findings would also apply to the second loan covered by the loan agreement dated 6.11.1995, as the facts are the same.Re: Contention (ii) 21. The appellant contended that on 27.10.1995 he was a Director of the borrower company and he had agreed to guarantee the loan of Rs. 75 lakhs; that subsequently, it was decided as he would be resigning from his directorship on account of his advanced age, his son would be the guarantor; and that, therefore, he did not become a guarantor by executing a deed of guarantee and he did not also execute the loan agreements. It was contended that the fact that ultimately the loan agreements were executed only among the lender (first respondent), the borrower company (2nd respondent) and the 3rd respondent (guarantor) and the further fact that third respondent alone executed the Deed of Guarantee, demonstrated that only third respondent was the guarantor and he was not a guarantor. According to him on execution of the loan agreements among respondents 1, 2 and 3, the letter dated 27.10.1995 given by him agreeing to be a guarantor ceased to be of any effect. We cannot examine these aspects in an appeal arising from a proceeding under Section 11 of the Act. In a proceedings under Section 11 of the Act, what is relevant is existence of arbitration agreement and not the defence on merits. Further, in view of our finding on the first contention, it is not necessary to examine this contention. It is open to appellant to urge this contention, if and when first respondent initiates action against him in accordance with law.Re : Contention (iii)22. It is true that where the letter of Guarantee issued by a guarantor, guarantees repayment of only the principal sum and does not guarantee the payment of any interest, he could not be made liable for the interest. But in view of our finding on the first contention, this issue does not survive for consideration. | 1[ds]us there can be reference to arbitration only if there is an arbitration agreement between the parties. The Act makes it clear that an Arbitrator can be appointed under the Act at the instance of a party to an arbitration agreement only in respect of disputes with another party to the arbitration agreement. If there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of Arbitrator can be only with respect to the parties to the arbitration agreement and not the non-parties.8. There is no dispute that the loan agreements among the first respondent (lender), the second respondent (borrower) and the third respondent (guarantor) contained a provision forthe appellant was not a party to the same. In factletter of guarantee for Rs. 75 lakh was given on 27.10.1995, prior to the dates of the two loan agreements. It is also not in dispute that the letter dated 27.10.1995 given by appellant to the first respondent did not contain a provision for arbitration; and that except the said letter dated 27.10.1995, the appellant did not execute any document or issue any communication. An arbitration agreement between the lender on the one hand and the borrower and one of the guarantors on the other, cannot be deemed or construed to be an arbitration agreement in respect of another guarantor who was not a party to the arbitration agreement. Therefore, there was no arbitration agreement as defined under Section 7(4)(a) or (b) of the Act, in so far as appellant was concerned, though there was an arbitration agreement as defined under Section 7(4)(a) of the Act in regard to the second and third respondents. As the letter dated 27.10.1995 does not refer to any document containing an arbitration clause, there is also no arbitration agreement between first respondent and appellant as contemplated under Section 7(5) of theapplication filed by the first respondent under Section 11 of the Act referred to the loan agreement containing the arbitration clause, which was executed by respondents 2 and 3 as borrower and guarantor in favour of the first respondent. The application specifically relied upon the provisions of Clause 18 of the loan agreement as the arbitration agreement under which appointment of an Arbitrator was sought. Significantly, the application under Section 11 of the Act did not allege or refer to the existence of any arbitration agreement between the first respondent and thethe aforesaid averment, there is absolutely no reference to any agreement between the first respondent and the appellant or the existence of any arbitration agreement between them. Therefore the application filed by the first respondent under Section 11 of the Act referring to the loan agreement with respondents 2 and 3 containing the arbitration agreement cannot be considered or construed to be an allegation of existence of an arbitration agreement between first respondent and appellant. If there was no reference to the existence of any arbitration agreement with appellant, the question of the appellant accepting such arbitration agreement by13. To constitute an arbitration agreement under Section 7(4)(c) of the Act, what is required is a statement of claim containing a specific allegation about the existence of an arbitration agreement by the applicant andthereof by the other party. Anis an assertion or declaration about a fact and also refers to the narration of a transaction. As noticed above, in the entire application under Section 11 of the Act, there was no allegation as to the existence of any arbitration agreement between first respondent and the appellant. Column (3) containingof other parties to arbitration agreement withcannot be considered to be an assertion or declaration about the existence of an arbitration agreement between the first respondent and appellant. Section 7(4)(c) of the Act cannot therefore be relied upon to prove the existence of an arbitration agreement.14. It is of some relevance to note that in the year 1998 when the applications under Section 11 of the Act was filed and in the year 2000 when the applications were allowed, an application under Section 11 of the Act was not considered to be a judicial proceeding and the order appointing an Arbitrator was considered to be an administrative order. Therefore at the relevant time, the application under Section 11 of the Act and the counter if any thereto were not in the nature of ‘statements of claim andBe that as it may.The apprehension of the first respondent that an anomalous situation may arise if there are two proceedings (one arbitration proceedings against the borrower and one guarantor and a suit against another guarantor), is not a relevant consideration as any such anomalous situation, if it arises, would be the own-making of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get the appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitration clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is whether there was an arbitration agreement with the appellant.19. As there was no arbitration agreement between the parties (the first respondent and appellant), the impleading of appellant as a respondent in the arbitration proceedings and the award against the appellant in such arbitration cannot be sustained. As a consequence, both the arbitration awards, as against the appellant are liable to be set aside. If the first respondent wants to enforce the alleged guarantee of the appellant, it is open to the first respondent to do so in accordance with law.20. The above discussion and findings would also apply to the second loan covered by the loan agreement dated 6.11.1995, as the facts are the same.Re: Contentioncannot examine these aspects in an appeal arising from a proceeding under Section 11 of the Act. In a proceedings under Section 11 of the Act, what is relevant is existence of arbitration agreement and not the defence on merits. Further, in view of our finding on the first contention, it is not necessary to examine this contention. It is open to appellant to urge this contention, if and when first respondent initiates action against him in accordance with law.Re : Contention (iii)22. It is true that where the letter of Guarantee issued by a guarantor, guarantees repayment of only the principal sum and does not guarantee the payment of any interest, he could not be made liable for the interest. But in view of our finding on the first contention, this issue does not survive for consideration. | 1 | 4,226 | 1,265 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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under Section 11 of the Act was filed in 1998 and decided in 2000 (long prior to the decision in SBP & Co. v. Patel Engineering Ltd., VIII (2005) SLT 405=IV (2005) CLT 236 (SC)=(2005) 8 SCC 618 the prevailing view was that the orders under Section 11 of the Act were administrative orders and that the Designate of the Chief Justice appointing an Arbitrator was not adjudicating on any disputed question of fact, including the existence of any valid arbitration agreement; and that the Arbitrator was required to decide about the existence of arbitration agreement and the arbitrability. 16. The first respondent contended that the appellant having agreed to be a guarantor for the repayment of the loan, cannot avoid arbitration by contending that he was not a signatory to the loan agreement containing the arbitration clause. It was submitted that the liability of the principal debtor and guarantors was joint and several and therefore there could be only one proceeding against all of them; and that if the contention of the appellant was accepted, it would necessitate two proceedings in regard to the same loan transaction and same cause of action, that is an arbitration proceedings against the borrower and one of its guarantors (respondents 2 and 3) and a separate suit against the other guarantor (appellant). It was further submitted that multiple proceedings may lead to divergent findings and results, leading to an anomalous situation. It was also submitted that the letter dated 27.10.1995 guaranteeing the loan of Rs. 75 lakh was written by the appellant, as a Director of the borrower company; and that as the appellant had already given a guarantee letter dated 27.10.1995, he was not required to execute the tripartite loan agreements containing the arbitration clause; that the appellant was aware of the terms of the loan and was further aware that loan agreements with arbitration clause had to be executed; and that therefore it should be deemed that the appellant had agreed to abide by the terms contained in the loan agreements, including the arbitration clause. We find no merit in these contentions. 17. When the appellant gave the guarantee letter dated 27.10.1995, he could not be imputed with the knowledge that the loan agreements which were to be executed in future (on 28.10.1995 and 6.11.1995) would contain an arbitration clause. Further, the appellant did not state in his letter dated 27.10.1995 that he would be bound by the terms of loan agreement/s that may be executed by the borrower. Therefore the question of appellant impliedly agreeing to the arbitration clause does not arise. 18. The apprehension of the first respondent that an anomalous situation may arise if there are two proceedings (one arbitration proceedings against the borrower and one guarantor and a suit against another guarantor), is not a relevant consideration as any such anomalous situation, if it arises, would be the own-making of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get the appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitration clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is whether there was an arbitration agreement with the appellant.19. As there was no arbitration agreement between the parties (the first respondent and appellant), the impleading of appellant as a respondent in the arbitration proceedings and the award against the appellant in such arbitration cannot be sustained. As a consequence, both the arbitration awards, as against the appellant are liable to be set aside. If the first respondent wants to enforce the alleged guarantee of the appellant, it is open to the first respondent to do so in accordance with law.20. The above discussion and findings would also apply to the second loan covered by the loan agreement dated 6.11.1995, as the facts are the same.Re: Contention (ii) 21. The appellant contended that on 27.10.1995 he was a Director of the borrower company and he had agreed to guarantee the loan of Rs. 75 lakhs; that subsequently, it was decided as he would be resigning from his directorship on account of his advanced age, his son would be the guarantor; and that, therefore, he did not become a guarantor by executing a deed of guarantee and he did not also execute the loan agreements. It was contended that the fact that ultimately the loan agreements were executed only among the lender (first respondent), the borrower company (2nd respondent) and the 3rd respondent (guarantor) and the further fact that third respondent alone executed the Deed of Guarantee, demonstrated that only third respondent was the guarantor and he was not a guarantor. According to him on execution of the loan agreements among respondents 1, 2 and 3, the letter dated 27.10.1995 given by him agreeing to be a guarantor ceased to be of any effect. We cannot examine these aspects in an appeal arising from a proceeding under Section 11 of the Act. In a proceedings under Section 11 of the Act, what is relevant is existence of arbitration agreement and not the defence on merits. Further, in view of our finding on the first contention, it is not necessary to examine this contention. It is open to appellant to urge this contention, if and when first respondent initiates action against him in accordance with law.Re : Contention (iii)22. It is true that where the letter of Guarantee issued by a guarantor, guarantees repayment of only the principal sum and does not guarantee the payment of any interest, he could not be made liable for the interest. But in view of our finding on the first contention, this issue does not survive for consideration.
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for Rs. 75 lakh was given on 27.10.1995, prior to the dates of the two loan agreements. It is also not in dispute that the letter dated 27.10.1995 given by appellant to the first respondent did not contain a provision for arbitration; and that except the said letter dated 27.10.1995, the appellant did not execute any document or issue any communication. An arbitration agreement between the lender on the one hand and the borrower and one of the guarantors on the other, cannot be deemed or construed to be an arbitration agreement in respect of another guarantor who was not a party to the arbitration agreement. Therefore, there was no arbitration agreement as defined under Section 7(4)(a) or (b) of the Act, in so far as appellant was concerned, though there was an arbitration agreement as defined under Section 7(4)(a) of the Act in regard to the second and third respondents. As the letter dated 27.10.1995 does not refer to any document containing an arbitration clause, there is also no arbitration agreement between first respondent and appellant as contemplated under Section 7(5) of theapplication filed by the first respondent under Section 11 of the Act referred to the loan agreement containing the arbitration clause, which was executed by respondents 2 and 3 as borrower and guarantor in favour of the first respondent. The application specifically relied upon the provisions of Clause 18 of the loan agreement as the arbitration agreement under which appointment of an Arbitrator was sought. Significantly, the application under Section 11 of the Act did not allege or refer to the existence of any arbitration agreement between the first respondent and thethe aforesaid averment, there is absolutely no reference to any agreement between the first respondent and the appellant or the existence of any arbitration agreement between them. Therefore the application filed by the first respondent under Section 11 of the Act referring to the loan agreement with respondents 2 and 3 containing the arbitration agreement cannot be considered or construed to be an allegation of existence of an arbitration agreement between first respondent and appellant. If there was no reference to the existence of any arbitration agreement with appellant, the question of the appellant accepting such arbitration agreement by13. To constitute an arbitration agreement under Section 7(4)(c) of the Act, what is required is a statement of claim containing a specific allegation about the existence of an arbitration agreement by the applicant andthereof by the other party. Anis an assertion or declaration about a fact and also refers to the narration of a transaction. As noticed above, in the entire application under Section 11 of the Act, there was no allegation as to the existence of any arbitration agreement between first respondent and the appellant. Column (3) containingof other parties to arbitration agreement withcannot be considered to be an assertion or declaration about the existence of an arbitration agreement between the first respondent and appellant. Section 7(4)(c) of the Act cannot therefore be relied upon to prove the existence of an arbitration agreement.14. It is of some relevance to note that in the year 1998 when the applications under Section 11 of the Act was filed and in the year 2000 when the applications were allowed, an application under Section 11 of the Act was not considered to be a judicial proceeding and the order appointing an Arbitrator was considered to be an administrative order. Therefore at the relevant time, the application under Section 11 of the Act and the counter if any thereto were not in the nature of ‘statements of claim andBe that as it may.The apprehension of the first respondent that an anomalous situation may arise if there are two proceedings (one arbitration proceedings against the borrower and one guarantor and a suit against another guarantor), is not a relevant consideration as any such anomalous situation, if it arises, would be the own-making of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get the appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitration clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is whether there was an arbitration agreement with the appellant.19. As there was no arbitration agreement between the parties (the first respondent and appellant), the impleading of appellant as a respondent in the arbitration proceedings and the award against the appellant in such arbitration cannot be sustained. As a consequence, both the arbitration awards, as against the appellant are liable to be set aside. If the first respondent wants to enforce the alleged guarantee of the appellant, it is open to the first respondent to do so in accordance with law.20. The above discussion and findings would also apply to the second loan covered by the loan agreement dated 6.11.1995, as the facts are the same.Re: Contentioncannot examine these aspects in an appeal arising from a proceeding under Section 11 of the Act. In a proceedings under Section 11 of the Act, what is relevant is existence of arbitration agreement and not the defence on merits. Further, in view of our finding on the first contention, it is not necessary to examine this contention. It is open to appellant to urge this contention, if and when first respondent initiates action against him in accordance with law.Re : Contention (iii)22. It is true that where the letter of Guarantee issued by a guarantor, guarantees repayment of only the principal sum and does not guarantee the payment of any interest, he could not be made liable for the interest. But in view of our finding on the first contention, this issue does not survive for consideration.
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M. N. Dasanna Vs. State Of Andhra Pradesh | had been taken down by his predecessor as if such evidence had been taken down by him. He proceeded to hear arguments on the 9th and 10th July l964. The hearing of arguments was a part of the enquiry under S. 6 (1). It was not, therefore, necessary that the report must have been made by both members of the Tribunal.8. Now it is quite clear that Shri Venkata Rao never examined any witnesses or took on record any evidence. All that he did was to hear arguments afresh Under Section 7 on conclusion of an enquiry it is the Tribunal which has to report its findings to the Government. The proviso was inserted as is clear from the Statement of Objects and Reasons contained in the Bill which was introduced for enacting the amending Act of 1965, because of the decision of the Andhra Pradesh High Court referred to before in which it was held that the purpose of having a Tribunal of more than one member was that all members should bring to bear their mind to the matter in controversy and come to the conclusion that where a single member had held an inquiry the findings of the report should be given by all the members. It was pointed out that the intention was that where a single member held an inquiry under S. 6 (1) he alone should report his findings and recommend the penalties in the report to be submitted to the Government. Where a single member held an inquiry it might not be appropriate to require the other member who had not enquired into the case and who did not have an opportunity of hearing the evidence to take part in further proceedings and recording the findings and submitting the report to the government. In order to make the intention clear and to validate the action taken by the Government in the past on the findings and the report of a single member of the Tribunal, the Andhra Pradesh Civil Services (Disciplinary Proceedings) Tribunal Amendment Ordinance 1965 had been promulgated by the Governor. That was later followed by the Amendment Act 1965.9. As Rule 7 (6) cannot abrogate the provisions contained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to S. 7 is. It is abundantly clear that according to the substantive part of Section 7 it is the Tribunal which has to report the findings to the Government. On the conclusion of the enquiry. In other words even if the enquiry is conducted by one member, two members have to submit their report it the Tribunal consists of two members as was the case here. The proviso only enables the report to be submitted by one member alone if the condition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal. The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the conditions laid down in Section 7 and the proviso thereto. It is not in dispute that he had never conducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court (supra) it was laid down that the word "enquiry in Section 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely concur with this view. In our opinion the stage of enquiry is completed before the arguments have to be advanced as is clear from Rule 7 (1) (iii) which is the following terms :"At the enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is completed, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right of reply".The net result would be that according to the Act and the Rules framed thereunder arguments would not be a part of enquiry. As Shri Venkata Rao had only heard arguments and had not held any part of the enquiry, his report could not be deemed to be the report of the Tribunal under the proviso to Section 7 of the Act. As pointed out before sub-rule (6) of R. 7 cannot override Section 7 of the Act. Under Section 7 the position is quite clear that if the Tribunal consists of more than one member and if the enquiry is held by a single member alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single member has not held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their report. As arguments could not form part of the enquiry the conditions of S. 7 could not be regarded to have been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore his report should be deemed to be the report of the Tribunal. The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void. | 1[ds]9. As Rule 7 (6) cannot abrogate the provisions contained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to S. 7 is. It is abundantly clear that according to the substantive part of Section 7 it is the Tribunal which has to report the findings to the Government. On the conclusion of the enquiry. In other words even if the enquiry is conducted by one member, two members have to submit their report it the Tribunal consists of two members as was the case here. The proviso only enables the report to be submitted by one member alone if the condition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal. The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the conditions laid down in Section 7 and the proviso thereto. It is not in dispute that he had never conducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court (supra) it was laid down that the word "enquiry in Section 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely concur with this view. In our opinion the stage of enquiry is completed before the arguments have to be advanced as is clear from Rule 7 (1) (iii) which is the following termsthe enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is completed, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right ofnet result would be that according to the Act and the Rules framed thereunder arguments would not be a part of enquiry. As Shri Venkata Rao had only heard arguments and had not held any part of the enquiry, his report could not be deemed to be the report of the Tribunal under the proviso to Section 7 of the Act. As pointed out before sub-rule (6) of R. 7 cannot override Section 7 of the Act. Under Section 7 the position is quite clear that if the Tribunal consists of more than one member and if the enquiry is held by a single member alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single member has not held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their report. As arguments could not form part of the enquiry the conditions of S. 7 could not be regarded to have been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore his report should be deemed to be the report of the Tribunal. The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void. | 1 | 2,365 | 689 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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had been taken down by his predecessor as if such evidence had been taken down by him. He proceeded to hear arguments on the 9th and 10th July l964. The hearing of arguments was a part of the enquiry under S. 6 (1). It was not, therefore, necessary that the report must have been made by both members of the Tribunal.8. Now it is quite clear that Shri Venkata Rao never examined any witnesses or took on record any evidence. All that he did was to hear arguments afresh Under Section 7 on conclusion of an enquiry it is the Tribunal which has to report its findings to the Government. The proviso was inserted as is clear from the Statement of Objects and Reasons contained in the Bill which was introduced for enacting the amending Act of 1965, because of the decision of the Andhra Pradesh High Court referred to before in which it was held that the purpose of having a Tribunal of more than one member was that all members should bring to bear their mind to the matter in controversy and come to the conclusion that where a single member had held an inquiry the findings of the report should be given by all the members. It was pointed out that the intention was that where a single member held an inquiry under S. 6 (1) he alone should report his findings and recommend the penalties in the report to be submitted to the Government. Where a single member held an inquiry it might not be appropriate to require the other member who had not enquired into the case and who did not have an opportunity of hearing the evidence to take part in further proceedings and recording the findings and submitting the report to the government. In order to make the intention clear and to validate the action taken by the Government in the past on the findings and the report of a single member of the Tribunal, the Andhra Pradesh Civil Services (Disciplinary Proceedings) Tribunal Amendment Ordinance 1965 had been promulgated by the Governor. That was later followed by the Amendment Act 1965.9. As Rule 7 (6) cannot abrogate the provisions contained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to S. 7 is. It is abundantly clear that according to the substantive part of Section 7 it is the Tribunal which has to report the findings to the Government. On the conclusion of the enquiry. In other words even if the enquiry is conducted by one member, two members have to submit their report it the Tribunal consists of two members as was the case here. The proviso only enables the report to be submitted by one member alone if the condition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal. The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the conditions laid down in Section 7 and the proviso thereto. It is not in dispute that he had never conducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court (supra) it was laid down that the word "enquiry in Section 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely concur with this view. In our opinion the stage of enquiry is completed before the arguments have to be advanced as is clear from Rule 7 (1) (iii) which is the following terms :"At the enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is completed, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right of reply".The net result would be that according to the Act and the Rules framed thereunder arguments would not be a part of enquiry. As Shri Venkata Rao had only heard arguments and had not held any part of the enquiry, his report could not be deemed to be the report of the Tribunal under the proviso to Section 7 of the Act. As pointed out before sub-rule (6) of R. 7 cannot override Section 7 of the Act. Under Section 7 the position is quite clear that if the Tribunal consists of more than one member and if the enquiry is held by a single member alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single member has not held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their report. As arguments could not form part of the enquiry the conditions of S. 7 could not be regarded to have been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore his report should be deemed to be the report of the Tribunal. The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void.
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9. As Rule 7 (6) cannot abrogate the provisions contained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to S. 7 is. It is abundantly clear that according to the substantive part of Section 7 it is the Tribunal which has to report the findings to the Government. On the conclusion of the enquiry. In other words even if the enquiry is conducted by one member, two members have to submit their report it the Tribunal consists of two members as was the case here. The proviso only enables the report to be submitted by one member alone if the condition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal. The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the conditions laid down in Section 7 and the proviso thereto. It is not in dispute that he had never conducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court (supra) it was laid down that the word "enquiry in Section 8 of the Act does not include a finding. The enquiry was stated to cover the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely concur with this view. In our opinion the stage of enquiry is completed before the arguments have to be advanced as is clear from Rule 7 (1) (iii) which is the following termsthe enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is completed, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right ofnet result would be that according to the Act and the Rules framed thereunder arguments would not be a part of enquiry. As Shri Venkata Rao had only heard arguments and had not held any part of the enquiry, his report could not be deemed to be the report of the Tribunal under the proviso to Section 7 of the Act. As pointed out before sub-rule (6) of R. 7 cannot override Section 7 of the Act. Under Section 7 the position is quite clear that if the Tribunal consists of more than one member and if the enquiry is held by a single member alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single member has not held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their report. As arguments could not form part of the enquiry the conditions of S. 7 could not be regarded to have been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore his report should be deemed to be the report of the Tribunal. The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void.
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U.N. KRISHNAMURTHY (SINCE DECEASED) THR. LRS Vs. A. M. KRISHNAMURTHY | Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. 44. In Atma Ram v. Charanjit Singh (2020) 3 SCC 311 Justice V. Ramasubramanian speaking for this Court made the following pertinent observation:- 9... No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. 45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract. 46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice. 47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiffs balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiffs readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiffs readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: - 45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act… 48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance. 49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract. 50. In Bhavyanath v. K.V. Balan (2020) 11 SCC 790 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff. | 1[ds]21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.26. In Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512, this Court held that:40. …..A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not ready and willing to perform his obligations.27. In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd. And Anr. AIR 1968 SC 1355 cited by Mr. Venugopal, this Court speaking through Ramaswamy J. held that it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract….. and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon 55 IA 300, at pg. 372 : AIR 1928 PC 208 .31. In Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243, this Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of the contract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court:-So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.32. In K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1, Justice B.P. Jeevan Reddy said that grant of the relief of specific performance is discretionary and the Court is not bound to grant it. This Court further held that though time is not of essence to a contract relating to transfer of property, such contracts need to be completed within a reasonable time period. Thus the time element cannot be completely ignored.34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar (2018) 3 SCC 658 .36. In Malluru Mallappa v. Kuruvathappa (2020) 4 SCC 313, this Court observed and held:-13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259] ]14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.37. In H.P. Pyarejan v. Dasappa (supra), Justice Arijit Pasayat speaking for this Court reversed the judgment of the High Court holding that High Court did not provide reasoning for its conclusion that Plaintiff was ready and willing to perform his part of contract. To arrive at such conclusion the Court had relied upon Cort v. Ambergate etc. and Rly. Co (1851) 117 ER 1229 where Lord Campbell observed that in common sense, the meaning of such an averment of readiness and willingness must be that the non-completion of contract was not the fault of the Plaintiff.38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar (2018) 3 SCC 658 .35. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan (1999) 8 SCC 396, and H.P. Pyarejan v. Dasappa (2006) 2 SCC 496 where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon AIR 1928 PC 208 .36. In Malluru Mallappa v. Kuruvathappa (2020) 4 SCC 313, this Court observed and held:-13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259] ]14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.37. In H.P. Pyarejan v. Dasappa (supra), Justice Arijit Pasayat speaking for this Court reversed the judgment of the High Court holding that High Court did not provide reasoning for its conclusion that Plaintiff was ready and willing to perform his part of contract. To arrive at such conclusion the Court had relied upon Cort v. Ambergate etc. and Rly. Co (1851) 117 ER 1229 where Lord Campbell observed that in common sense, the meaning of such an averment of readiness and willingness must be that the non-completion of contract was not the fault of the Plaintiff.38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.41. In K.S. Vidyanadam v. Vairavan (supra) this Court held:10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time- limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] : (SCC p. 528, para 25)… it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised...43. In Saradamani Kandappan (supra) this Court reiterated that (i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored; (ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiffs balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiffs readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiffs readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: -45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act…48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.50. In Bhavyanath v. K.V. Balan (2020) 11 SCC 790 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff. | 1 | 7,045 | 4,078 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. 44. In Atma Ram v. Charanjit Singh (2020) 3 SCC 311 Justice V. Ramasubramanian speaking for this Court made the following pertinent observation:- 9... No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. 45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract. 46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice. 47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiffs balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiffs readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiffs readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: - 45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act… 48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance. 49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract. 50. In Bhavyanath v. K.V. Balan (2020) 11 SCC 790 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff.
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is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised...43. In Saradamani Kandappan (supra) this Court reiterated that (i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored; (ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiffs balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiffs readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiffs readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: -45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act…48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.50. In Bhavyanath v. K.V. Balan (2020) 11 SCC 790 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff.
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K.LUBNA Vs. BEEVI | of fact, as well as in the revision petition. 9. On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law (Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852 ). 10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna AIR 1965 SC 1325 . 11. We may also usefully refer to what has been observed by Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 1892 A.C. 473 in the following words:?….When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.? 12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no ?nice questions of fact? required to be decided in the present case which would dissuade us from examining this plea at this stage. We have set forth the undisputed facts aforesaid. Thus, the only question is whether this is a question of law which deserves to be examined, and has ramifications in the present case. 13. We may now turn to the judicial pronouncements of this Court in M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors. (2010) 15 SCC 359 , which deals with the very said Act with which we are concerned. In the facts of that case, one single tenancy was created in relation to two shop rooms, while sub-tenancy was created in respect of one of the two shop rooms by the tenant. Much later, a partition was effected by virtue of which the two shops were allotted to the share of different co-sharers who joined together in the suit proceedings seeking eviction of tenants as sub- lessees. It was held that it could not be said that on account of the partition, the original tenancy was divided and therefore, eviction could be ordered only in respect of one of the rooms that was actually sub-let, more so when the cause of action had arisen prior to the partition. The appellate court and the High Court, having granted a decree of eviction only with respect to one shop, was stated to be a legal error committed and, thus, eviction was granted in respect of both the shops on the ground that one of the shops was sub-leased, in view of the provision extracted hereinabove. 14. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building ?or any portion thereof?, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position. 15. Learned counsel for the respondent did seek to contend that had he known all these consequences, he would not have accepted the judgment of the High Court, as he was maintaining the occupation of two of the rooms and had accepted the vacation of one room. But then we squarely put to him that the additional grounds were pleaded and thereafter leave was granted. Thus, nothing prevented the respondents from filing cross- objections/cross-appeals at that stage of time, which they chose not to do despite knowing the nature of plea which has been raised as an additional ground. | 1[ds]6. In order to appreciate the controversy, we deemed it appropriate to peruse the notice dated 15.12.1987, which was not on record. In the subsequent proceedings, it was found that there was some difficulty in obtaining the same and, thus, the record of the trial court was called for, to peruse the same. On a perusal of the record, what emerges is that there was actually one tenancy and one single notice seeking eviction of the tenants on different grounds, though the allegation against the three portions are different in character. A perusal of the eviction petition also shows the same, i.e., there is a single eviction petition for the three shops/rooms, though the alleged violations are different in respect of different portions7. We may notice that the plea sought to be advanced before us, that sub-letting one room would entail eviction from the entire tenancy premises, apparently was never urged before the trial court, the appellate court or the High Court, and forms a part of the pleadings before the Supreme Court, to the extent of being included in the rejoinder to the SLP. Thereafter by way of an interlocutory application, additional grounds were urged where this question was sought to be raised, and leave was granted by this Court post that stage. The net effect, in our view of all of these is that this plea has to be examined; rather this is the only plea to be examined by us in view of the finding of fact recorded by the three courtsHowever, on perusal of the eviction petition, the notice and the reply, what is found is that the aspect of single tenancy was never disputed. Nor is it disputed that there were different grounds made out for different portions, i.e., that the single tenancy was of three rooms, but what the respondents, as tenants, were alleged to have done, to constitute violation of the terms of the lease was different for the three portions. Such allegations, however, did not find favour ultimately, except to the extent of one of the portions, i.e., Room No.3/476, where the finding reached was of subletting, by the appellate authority, reversing the finding of the trial court on that aspect, and the High Court thereafter affirming the same. Thus, there is a concurrent finding by the final court of fact, as well as in the revision petition13. We may now turn to the judicial pronouncements of this Court in M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors. (2010) 15 SCC 359 , which deals with the very said Act with which we are concerned. In the facts of that case, one single tenancy was created in relation to two shop rooms, while sub-tenancy was created in respect of one of the two shop rooms by the tenant. Much later, a partition was effected by virtue of which the two shops were allotted to the share of different co-sharers who joined together in the suit proceedings seeking eviction of tenants as sub- lessees. It was held that it could not be said that on account of the partition, the original tenancy was divided and therefore, eviction could be ordered only in respect of one of the rooms that was actually sub-let, more so when the cause of action had arisen prior to the partition. The appellate court and the High Court, having granted a decree of eviction only with respect to one shop, was stated to be a legal error committed and, thus, eviction was granted in respect of both the shops on the ground that one of the shops was sub-leased, in view of the provision extracted hereinabove14. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building ?or any portion thereof?, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position15. Learned counsel for the respondent did seek to contend that had he known all these consequences, he would not have accepted the judgment of the High Court, as he was maintaining the occupation of two of the rooms and had accepted the vacation of one room. But then we squarely put to him that the additional grounds were pleaded and thereafter leave was granted. Thus, nothing prevented the respondents from filing cross- objections/cross-appeals at that stage of time, which they chose not to do despite knowing the nature of plea which has been raised as an additional ground12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no ?nice questions of fact? required to be decided in the present case which would dissuade us from examining this plea at this stage10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna AIR 1965 SC 1325 . | 1 | 2,625 | 1,295 | ### 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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of fact, as well as in the revision petition. 9. On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law (Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852 ). 10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna AIR 1965 SC 1325 . 11. We may also usefully refer to what has been observed by Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 1892 A.C. 473 in the following words:?….When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.? 12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no ?nice questions of fact? required to be decided in the present case which would dissuade us from examining this plea at this stage. We have set forth the undisputed facts aforesaid. Thus, the only question is whether this is a question of law which deserves to be examined, and has ramifications in the present case. 13. We may now turn to the judicial pronouncements of this Court in M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors. (2010) 15 SCC 359 , which deals with the very said Act with which we are concerned. In the facts of that case, one single tenancy was created in relation to two shop rooms, while sub-tenancy was created in respect of one of the two shop rooms by the tenant. Much later, a partition was effected by virtue of which the two shops were allotted to the share of different co-sharers who joined together in the suit proceedings seeking eviction of tenants as sub- lessees. It was held that it could not be said that on account of the partition, the original tenancy was divided and therefore, eviction could be ordered only in respect of one of the rooms that was actually sub-let, more so when the cause of action had arisen prior to the partition. The appellate court and the High Court, having granted a decree of eviction only with respect to one shop, was stated to be a legal error committed and, thus, eviction was granted in respect of both the shops on the ground that one of the shops was sub-leased, in view of the provision extracted hereinabove. 14. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building ?or any portion thereof?, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position. 15. Learned counsel for the respondent did seek to contend that had he known all these consequences, he would not have accepted the judgment of the High Court, as he was maintaining the occupation of two of the rooms and had accepted the vacation of one room. But then we squarely put to him that the additional grounds were pleaded and thereafter leave was granted. Thus, nothing prevented the respondents from filing cross- objections/cross-appeals at that stage of time, which they chose not to do despite knowing the nature of plea which has been raised as an additional ground.
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1
### Explanation:
and forms a part of the pleadings before the Supreme Court, to the extent of being included in the rejoinder to the SLP. Thereafter by way of an interlocutory application, additional grounds were urged where this question was sought to be raised, and leave was granted by this Court post that stage. The net effect, in our view of all of these is that this plea has to be examined; rather this is the only plea to be examined by us in view of the finding of fact recorded by the three courtsHowever, on perusal of the eviction petition, the notice and the reply, what is found is that the aspect of single tenancy was never disputed. Nor is it disputed that there were different grounds made out for different portions, i.e., that the single tenancy was of three rooms, but what the respondents, as tenants, were alleged to have done, to constitute violation of the terms of the lease was different for the three portions. Such allegations, however, did not find favour ultimately, except to the extent of one of the portions, i.e., Room No.3/476, where the finding reached was of subletting, by the appellate authority, reversing the finding of the trial court on that aspect, and the High Court thereafter affirming the same. Thus, there is a concurrent finding by the final court of fact, as well as in the revision petition13. We may now turn to the judicial pronouncements of this Court in M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors. (2010) 15 SCC 359 , which deals with the very said Act with which we are concerned. In the facts of that case, one single tenancy was created in relation to two shop rooms, while sub-tenancy was created in respect of one of the two shop rooms by the tenant. Much later, a partition was effected by virtue of which the two shops were allotted to the share of different co-sharers who joined together in the suit proceedings seeking eviction of tenants as sub- lessees. It was held that it could not be said that on account of the partition, the original tenancy was divided and therefore, eviction could be ordered only in respect of one of the rooms that was actually sub-let, more so when the cause of action had arisen prior to the partition. The appellate court and the High Court, having granted a decree of eviction only with respect to one shop, was stated to be a legal error committed and, thus, eviction was granted in respect of both the shops on the ground that one of the shops was sub-leased, in view of the provision extracted hereinabove14. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building ?or any portion thereof?, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position15. Learned counsel for the respondent did seek to contend that had he known all these consequences, he would not have accepted the judgment of the High Court, as he was maintaining the occupation of two of the rooms and had accepted the vacation of one room. But then we squarely put to him that the additional grounds were pleaded and thereafter leave was granted. Thus, nothing prevented the respondents from filing cross- objections/cross-appeals at that stage of time, which they chose not to do despite knowing the nature of plea which has been raised as an additional ground12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no ?nice questions of fact? required to be decided in the present case which would dissuade us from examining this plea at this stage10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna AIR 1965 SC 1325 .
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Valji Khimji and Company Vs. Official Liquidator of Hindustan Nitro Product Ltd. and Ors | assets were fully described in the sale notice. 23. The learned Single Judge in our opinion also wrongly observed that while doing the valuation the potential of the company was overlooked. Such potential has really no relevance in our opinion. 24. The learned Single Judge has observed that the valuation was made as if the assets of the company to be sold were scrap, and instead the valuation should have been done as if it was a going concern. We have already observed above that this observation is really based on no material as there is nothing to show that the valuation of the assets was done as if they were scrap. 25. The learned Division Bench in its impugned judgment has broadly adopted the reasoning of the learned Single Judge. Hence for the same reason given above the judgment of the learned Division Bench also cannot be sustained. 26. Learned counsel for the appellant Mr. Sundaram has relied upon the decision of this Court in M/s Kayjay Industries (P) Ltd. vs. M/s. Asnew Drums (P) Ltd & Ors. (1974) SCC 213 in which it was observed that mere inadequacy of price cannot demolish every court sale. The Court also observed in para 7, as under: "If Court sales are too frequently adjourned with a view to obtaining a still higher price it may prove a self-defeating exercise, for industrialists will lose faith in the actual sale taking place and may not care to travel up to the place of auction being uncertain that the sale would at all go through". 27. On the other hand, learned counsel for the respondents relied upon a decision of this Court in Divya Manufacturing Company (P) Ltd. etc. vs. Union Bank of India & Ors. etc. (2000) 6 SCC 69. We have carefully perused the above decision and we find that it is clearly distinguishable. 28. The facts of the case were that at the initial stage the appellant offered 37 lakhs for purchasing the property in question. At the intervention of the court the price was raised to 1.3 crores, and ultimately it was found that the property could be sold for Rs.2 crores. It was on these facts that this Court held that even after confirmation of the sale the same could be set aside. 29. Thus, the ratio in Divya Manufacturing Company (P) Ltd. (supra) was that if there is fraud then even after the confirmation the sale can be set aside because it is well-settled that fraud vitiates everything. On the facts of that case, the Court was of the view that that confirmed sale deserved to be set aside. 30. In our opinion the decision of this Court in Divya Manufacturing Company (P) Ltd. (supra) cannot be treated as laying down any absolute rule that a confirmed sale can be set aside in all circumstances. As observed by one of us (Hon. Katju, J.) in his judgment in Civil Appeal No. 4908/2008 (Dr. Rajbir Singh Dalal vs. Chaudhary Devi Lal University, Sirsa & Anr. pronounced on 6.8.2008), a decision of a Court cannot be treated as Euclids formula and read and understood mechanically. A decision must be considered on the facts of that particular case. 31. If it is held that every confirmed sale can be set aside the result would be that no auction sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. 32. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they will be themselves be to blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. 33. Of course, the situation may be different if an auction sale is finalized say for Rs.1 crore, and subsequently somebody turns up offering Rs. 10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers 10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done. 34. In the present case we are satisfied that there is no fraud in the auction sale. It may be mentioned that auctions are of two types - (1) where the auction is not subject to subsequent confirmation and (2) where the auction is subject to subsequent confirmation by some authority after the auction is held. 35. In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, the sale is confirmed by that authority, certain rights accrue in favour of the auction purchaser, and these rights cannot be extinguished except in exceptional cases such as fraud.36. In the present case, the auction having been confirmed on 30.7.2003 by the Court it cannot be set aside unless some fraud or collusion has been proved. We are satisfied that no fraud or collusion has been established by any one in this case. | 1[ds]11. It may be noted that the auction sale was done after adequate publicity in well-known newspapers. Hence, if any one wanted to make a bid in the auction he should have participated in the said auction and made his bid. Moreover even after the auction the sale was confirmed by the High Court only on 30.7.2003, and any objection to the sale could have been filed prior to that date. However, in our opinion, entertaining objections after the sale is confirmed should not ordinarily be allowed, except on very limited grounds like fraud, otherwise no auction sale will ever be complete.12. It is not in dispute that the auction was an open auction after wide publicity in well-known newspapers. Hence, there was nothing to prevent M/s. Manibhadra Sales Corporation and M/s. Castwell Alloys Limited to have participated in the auction, but they did not do so. There is no allegation of fraud either in this case. Hence, in our opinion, there was no justification to set aside the confirmation of the sale.13. It appears that the reasoning of the learned Single Judge, as also of the Division Bench, was that the valuation of the assets of the company was made as if these assets were scrap. The reasoning of the learned Single Judge of the High Court thus seems to be that the assets in question was wrongly given out to be scrap and thus a proper bid was not obtained.14. In our opinion, there is nothing to show that the assets in question which were auctioned-sold were ever given out to be scrap. They are not mentioned as scrap in the advertisement or sale notice, nor is there any material to show that the valuer valued them treating them to be scrap.15. We have carefully perused the sale notice and we find that it is nowhere mentioned therein that the assets in question are scrap.16. No doubt, the assets of M/s. Hindustan Nitro Product (Gujarat) Limited offered to be sold in the auction sale were offered in lots (as mentioned in the sale notice). The first lot was plant machineries and all other movables excluding building structure, records and compound wall, the second lot was the building structure except T.K. Office, records & compound wall, the third lot was a composite offer (I & II) above, the fourth lot was land except records, and the fifth lot was a composite offer (i.e. III & IV above). In our opinion, this cannot be described as scrap.It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they will be themselves be to blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price.In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, the sale is confirmed by that authority, certain rights accrue in favour of the auction purchaser, and these rights cannot be extinguished except in exceptional cases such as fraud.36. In the present case, the auction having been confirmed on 30.7.2003 by the Court it cannot be set aside unless some fraud or collusion has been proved. We are satisfied that no fraud or collusion has been established by any one in this | 1 | 2,707 | 755 | ### 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:
assets were fully described in the sale notice. 23. The learned Single Judge in our opinion also wrongly observed that while doing the valuation the potential of the company was overlooked. Such potential has really no relevance in our opinion. 24. The learned Single Judge has observed that the valuation was made as if the assets of the company to be sold were scrap, and instead the valuation should have been done as if it was a going concern. We have already observed above that this observation is really based on no material as there is nothing to show that the valuation of the assets was done as if they were scrap. 25. The learned Division Bench in its impugned judgment has broadly adopted the reasoning of the learned Single Judge. Hence for the same reason given above the judgment of the learned Division Bench also cannot be sustained. 26. Learned counsel for the appellant Mr. Sundaram has relied upon the decision of this Court in M/s Kayjay Industries (P) Ltd. vs. M/s. Asnew Drums (P) Ltd & Ors. (1974) SCC 213 in which it was observed that mere inadequacy of price cannot demolish every court sale. The Court also observed in para 7, as under: "If Court sales are too frequently adjourned with a view to obtaining a still higher price it may prove a self-defeating exercise, for industrialists will lose faith in the actual sale taking place and may not care to travel up to the place of auction being uncertain that the sale would at all go through". 27. On the other hand, learned counsel for the respondents relied upon a decision of this Court in Divya Manufacturing Company (P) Ltd. etc. vs. Union Bank of India & Ors. etc. (2000) 6 SCC 69. We have carefully perused the above decision and we find that it is clearly distinguishable. 28. The facts of the case were that at the initial stage the appellant offered 37 lakhs for purchasing the property in question. At the intervention of the court the price was raised to 1.3 crores, and ultimately it was found that the property could be sold for Rs.2 crores. It was on these facts that this Court held that even after confirmation of the sale the same could be set aside. 29. Thus, the ratio in Divya Manufacturing Company (P) Ltd. (supra) was that if there is fraud then even after the confirmation the sale can be set aside because it is well-settled that fraud vitiates everything. On the facts of that case, the Court was of the view that that confirmed sale deserved to be set aside. 30. In our opinion the decision of this Court in Divya Manufacturing Company (P) Ltd. (supra) cannot be treated as laying down any absolute rule that a confirmed sale can be set aside in all circumstances. As observed by one of us (Hon. Katju, J.) in his judgment in Civil Appeal No. 4908/2008 (Dr. Rajbir Singh Dalal vs. Chaudhary Devi Lal University, Sirsa & Anr. pronounced on 6.8.2008), a decision of a Court cannot be treated as Euclids formula and read and understood mechanically. A decision must be considered on the facts of that particular case. 31. If it is held that every confirmed sale can be set aside the result would be that no auction sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. 32. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they will be themselves be to blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. 33. Of course, the situation may be different if an auction sale is finalized say for Rs.1 crore, and subsequently somebody turns up offering Rs. 10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers 10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done. 34. In the present case we are satisfied that there is no fraud in the auction sale. It may be mentioned that auctions are of two types - (1) where the auction is not subject to subsequent confirmation and (2) where the auction is subject to subsequent confirmation by some authority after the auction is held. 35. In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, the sale is confirmed by that authority, certain rights accrue in favour of the auction purchaser, and these rights cannot be extinguished except in exceptional cases such as fraud.36. In the present case, the auction having been confirmed on 30.7.2003 by the Court it cannot be set aside unless some fraud or collusion has been proved. We are satisfied that no fraud or collusion has been established by any one in this case.
### Response:
1
### Explanation:
11. It may be noted that the auction sale was done after adequate publicity in well-known newspapers. Hence, if any one wanted to make a bid in the auction he should have participated in the said auction and made his bid. Moreover even after the auction the sale was confirmed by the High Court only on 30.7.2003, and any objection to the sale could have been filed prior to that date. However, in our opinion, entertaining objections after the sale is confirmed should not ordinarily be allowed, except on very limited grounds like fraud, otherwise no auction sale will ever be complete.12. It is not in dispute that the auction was an open auction after wide publicity in well-known newspapers. Hence, there was nothing to prevent M/s. Manibhadra Sales Corporation and M/s. Castwell Alloys Limited to have participated in the auction, but they did not do so. There is no allegation of fraud either in this case. Hence, in our opinion, there was no justification to set aside the confirmation of the sale.13. It appears that the reasoning of the learned Single Judge, as also of the Division Bench, was that the valuation of the assets of the company was made as if these assets were scrap. The reasoning of the learned Single Judge of the High Court thus seems to be that the assets in question was wrongly given out to be scrap and thus a proper bid was not obtained.14. In our opinion, there is nothing to show that the assets in question which were auctioned-sold were ever given out to be scrap. They are not mentioned as scrap in the advertisement or sale notice, nor is there any material to show that the valuer valued them treating them to be scrap.15. We have carefully perused the sale notice and we find that it is nowhere mentioned therein that the assets in question are scrap.16. No doubt, the assets of M/s. Hindustan Nitro Product (Gujarat) Limited offered to be sold in the auction sale were offered in lots (as mentioned in the sale notice). The first lot was plant machineries and all other movables excluding building structure, records and compound wall, the second lot was the building structure except T.K. Office, records & compound wall, the third lot was a composite offer (I & II) above, the fourth lot was land except records, and the fifth lot was a composite offer (i.e. III & IV above). In our opinion, this cannot be described as scrap.It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they will be themselves be to blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price.In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, the sale is confirmed by that authority, certain rights accrue in favour of the auction purchaser, and these rights cannot be extinguished except in exceptional cases such as fraud.36. In the present case, the auction having been confirmed on 30.7.2003 by the Court it cannot be set aside unless some fraud or collusion has been proved. We are satisfied that no fraud or collusion has been established by any one in this
|
NARBADA DEVI AND ORS Vs. H.P. STATE FOREST CORPORATION & ANR | is the final medical complication. Therefore, the learned counsel for the Insurance Company submitted that the Appellants claim is not maintainable under the Insurance Policy conditions, particularly Proviso 4. It was further pointed out that there is neither any direct evidence nor any bodily injury to prove the Appellants claim that the deceased died due to having suffered a fall during the storm at night. The learned counsel also placed reliance on the expert opinions of Dr. D.J. Das Gupta dated 6.07.1998 (supra) and Dr. D.S. Puri dated 17.08.2002 (supra) to show that the deceased was in an intoxicated state at the time of death. Hence, the learned counsel for the Insurance Company submitted that the present appeal is liable to be dismissed. 11. We have heard the learned counsel for the parties at length and have considered the materials placed on record as well as the findings of the three consumer forums. In the facts and circumstances of the case, we do not find any reason to interfere with the impugned order dated 24.04.2009 passed by the National Commission for the reasons mentioned below. 12. From a bare perusal of the Insurance Policy, as quoted supra, it is clear that only if the insured sustains any bodily injury resulting solely and directly from accident caused by outward, violent and visible means, the Insurance Company would be liable to indemnify the insured. Therefore, as per the Insurance Policy, only accidental death of the insured shall be indemnified. As noted above, the Post-Mortem Report clearly indicates that there were no injuries found on the body of the deceased. The probable cause of death as per the Final Opinion in the Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds death was accidental. Further, the expert opinions of Dr. D.S. Puri and Dr. D.J. Das Gupta (supra) also show that the cause of death was due to consumption of alcohol. In light of the explicit terms of the Insurance Policy, we find that the National Commission and the State Commission have rightly held that the deceaseds death was not accidental, and that the Insurance Company would not be liable to settle the Appellants claim. 13. As for the liability of the Respondent No.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC was only acting as a mediator for depositing the premium of employees with the Insurance Company and had no liability as such under the Insurance Policy. The liability of Respondent No.1-HPSFC, if any, would be under the 1923 Act, proceedings under which have already been settled by the Commissioner, as recorded in the Impugned Order. 14. At this stage, we consider it pertinent to deal with the contention raised by the Appellants that Respondent No.1-HPSFC ought to be directed to pay compensation in place of the Insurance Company on the basis of the judgment in Jamuna Devi (supra). In the facts of Jamuna Devi, the deceased employee in that case was also insured under the same Insurance Scheme. Upon his death, a claim was raised which was repudiated by the Insurance Company. When the matter came before the National Commission by way of revision petition, the National Commission held that the death was not accidental and therefore, repudiation of the claim by the Insurance Company was correct. However, the National Commission observed from the records that the deceased therein was given to believe that the policy covered natural death as well. The National Commission also considered the fact that before the introduction of the Scheme, a communication dated 23.01.1996 was addressed by the Financial Commissioner-cum-Secretary (PW) to all Heads of Departments under the Government of Himachal Pradesh giving details of the Insurance Scheme and the benefits arising therefrom. The said letter mentioned death as one of the events covered by the insurance scheme, however, it did not specify only accidental death. Therefore, the National Commission held that the employer in that case was liable to make payment of compensation. 15. In our considered opinion, the judgment passed by the National Commission in Jamuna Devi (supra) is peculiar to the facts and circumstances of that case. There is nothing on record to show that the deceased in the present case was given to believe that the Insurance Policy covered natural death as well. Therefore, the directions issued in Jamuna Devi would not be applicable to the present case. 16. At this juncture, we may also observe that in the communication dated 23.01.1996 addressed by the Financial Commissioner-cum-Secretary (PW) (mentioned supra), it was stated that the Insurance Scheme would cover death due to any type of accident including road, natural calamities like landslides, floods, drowning, tree-falling, avalanches, etc. However, the Appellants have not adduced any evidence to prove their contention that there was indeed a storm on the night of 7.10.1997 and that the deceased fell to his death as a result, so as to lend support to their argument that the present case may be covered in the broader terms of the Insurance Scheme as envisaged in the letter dated 23.01.1996. 17. Be that as it may, the Provisos of insurance policy specifically disclose that compensation will not be paid in respect of injury of the injured if he is under the influence of intoxicating liquor. The relevant Proviso 4 of the insurance policy reads thus:- PROVISOS Provided always that the company shall not be liable under this policy to: 4) Payment of compensation in respect of death, injury or disablement of the insured from (a) intentional (illegible) suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drug (c) or (illegible) by insanity, (d) arising or resulting from the insured committing any breach of the law with criminal intent. The aforesaid Proviso 4 makes it amply clear that the injured is not entitled to compensation since on facts it is proved that he was intoxicated and that was due to intoxication. | 0[ds]11. We have heard the learned counsel for the parties at length and have considered the materials placed on record as well as the findings of the three consumer forums. In the facts and circumstances of the case, we do not find any reason to interfere with the impugned order dated 24.04.2009 passed by the National Commission for the reasons mentioned below.12. From a bare perusal of the Insurance Policy, as quoted supra, it is clear that only if the insured sustains any bodily injury resulting solely and directly from accident caused by outward, violent and visible means, the Insurance Company would be liable to indemnify the insured. Therefore, as per the Insurance Policy, only accidental death of the insured shall be indemnified. As noted above, the Post-Mortem Report clearly indicates that there were no injuries found on the body of the deceased. The probable cause of death as per the Final Opinion in the Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds death was accidental. Further, the expert opinions of Dr. D.S. Puri and Dr. D.J. Das Gupta (supra) also show that the cause of death was due to consumption of alcohol. In light of the explicit terms of the Insurance Policy, we find that the National Commission and the State Commission have rightly held that the deceaseds death was not accidental, and that the Insurance Company would not be liable to settle the Appellants claim.13. As for the liability of the Respondent No.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC was only acting as a mediator for depositing the premium of employees with the Insurance Company and had no liability as such under the Insurance Policy. The liability of Respondent No.1-HPSFC, if any, would be under the 1923 Act, proceedings under which have already been settled by the Commissioner, as recorded in the Impugned Order.14. At this stage, we consider it pertinent to deal with the contention raised by the Appellants that Respondent No.1-HPSFC ought to be directed to pay compensation in place of the Insurance Company on the basis of the judgment in Jamuna Devi (supra). In the facts of Jamuna Devi, the deceased employee in that case was also insured under the same Insurance Scheme. Upon his death, a claim was raised which was repudiated by the Insurance Company. When the matter came before the National Commission by way of revision petition, the National Commission held that the death was not accidental and therefore, repudiation of the claim by the Insurance Company was correct. However, the National Commission observed from the records that the deceased therein was given to believe that the policy covered natural death as well. The National Commission also considered the fact that before the introduction of the Scheme, a communication dated 23.01.1996 was addressed by the Financial Commissioner-cum-Secretary (PW) to all Heads of Departments under the Government of Himachal Pradesh giving details of the Insurance Scheme and the benefits arising therefrom. The said letter mentioned death as one of the events covered by the insurance scheme, however, it did not specify only accidental death. Therefore, the National Commission held that the employer in that case was liable to make payment of compensation.15. In our considered opinion, the judgment passed by the National Commission in Jamuna Devi (supra) is peculiar to the facts and circumstances of that case. There is nothing on record to show that the deceased in the present case was given to believe that the Insurance Policy covered natural death as well.Therefore, the directions issued in Jamuna Devi would not be applicable to the present case.16. At this juncture, we may also observe that in the communication dated 23.01.1996 addressed by the Financial Commissioner-cum-Secretary (PW) (mentioned supra), it was stated that the Insurance Scheme would cover death due to any type of accident including road, natural calamities like landslides, floods, drowning, tree-falling, avalanches, etc. However, the Appellants have not adduced any evidence to prove their contention that there was indeed a storm on the night of 7.10.1997 and that the deceased fell to his death as a result, so as to lend support to their argument that the present case may be covered in the broader terms of the Insurance Scheme as envisaged in the letter dated 23.01.1996.17. Be that as it may, the Provisos of insurance policy specifically disclose that compensation will not be paid in respect of injury of the injured if he is under the influence of intoxicating liquor. The relevant Proviso 4 of the insurance policy reads thus:-Provided always that the company shall not be liable under this policy to:4) Payment of compensation in respect of death, injury or disablement of the insured from (a) intentional (illegible) suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drug (c) or (illegible) by insanity, (d) arising or resulting from the insured committing any breach of the law with criminal intent.The aforesaid Proviso 4 makes it amply clear that the injured is not entitled to compensation since on facts it is proved that he was intoxicated and that was due to intoxication. | 0 | 3,181 | 968 | ### 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:
is the final medical complication. Therefore, the learned counsel for the Insurance Company submitted that the Appellants claim is not maintainable under the Insurance Policy conditions, particularly Proviso 4. It was further pointed out that there is neither any direct evidence nor any bodily injury to prove the Appellants claim that the deceased died due to having suffered a fall during the storm at night. The learned counsel also placed reliance on the expert opinions of Dr. D.J. Das Gupta dated 6.07.1998 (supra) and Dr. D.S. Puri dated 17.08.2002 (supra) to show that the deceased was in an intoxicated state at the time of death. Hence, the learned counsel for the Insurance Company submitted that the present appeal is liable to be dismissed. 11. We have heard the learned counsel for the parties at length and have considered the materials placed on record as well as the findings of the three consumer forums. In the facts and circumstances of the case, we do not find any reason to interfere with the impugned order dated 24.04.2009 passed by the National Commission for the reasons mentioned below. 12. From a bare perusal of the Insurance Policy, as quoted supra, it is clear that only if the insured sustains any bodily injury resulting solely and directly from accident caused by outward, violent and visible means, the Insurance Company would be liable to indemnify the insured. Therefore, as per the Insurance Policy, only accidental death of the insured shall be indemnified. As noted above, the Post-Mortem Report clearly indicates that there were no injuries found on the body of the deceased. The probable cause of death as per the Final Opinion in the Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds death was accidental. Further, the expert opinions of Dr. D.S. Puri and Dr. D.J. Das Gupta (supra) also show that the cause of death was due to consumption of alcohol. In light of the explicit terms of the Insurance Policy, we find that the National Commission and the State Commission have rightly held that the deceaseds death was not accidental, and that the Insurance Company would not be liable to settle the Appellants claim. 13. As for the liability of the Respondent No.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC was only acting as a mediator for depositing the premium of employees with the Insurance Company and had no liability as such under the Insurance Policy. The liability of Respondent No.1-HPSFC, if any, would be under the 1923 Act, proceedings under which have already been settled by the Commissioner, as recorded in the Impugned Order. 14. At this stage, we consider it pertinent to deal with the contention raised by the Appellants that Respondent No.1-HPSFC ought to be directed to pay compensation in place of the Insurance Company on the basis of the judgment in Jamuna Devi (supra). In the facts of Jamuna Devi, the deceased employee in that case was also insured under the same Insurance Scheme. Upon his death, a claim was raised which was repudiated by the Insurance Company. When the matter came before the National Commission by way of revision petition, the National Commission held that the death was not accidental and therefore, repudiation of the claim by the Insurance Company was correct. However, the National Commission observed from the records that the deceased therein was given to believe that the policy covered natural death as well. The National Commission also considered the fact that before the introduction of the Scheme, a communication dated 23.01.1996 was addressed by the Financial Commissioner-cum-Secretary (PW) to all Heads of Departments under the Government of Himachal Pradesh giving details of the Insurance Scheme and the benefits arising therefrom. The said letter mentioned death as one of the events covered by the insurance scheme, however, it did not specify only accidental death. Therefore, the National Commission held that the employer in that case was liable to make payment of compensation. 15. In our considered opinion, the judgment passed by the National Commission in Jamuna Devi (supra) is peculiar to the facts and circumstances of that case. There is nothing on record to show that the deceased in the present case was given to believe that the Insurance Policy covered natural death as well. Therefore, the directions issued in Jamuna Devi would not be applicable to the present case. 16. At this juncture, we may also observe that in the communication dated 23.01.1996 addressed by the Financial Commissioner-cum-Secretary (PW) (mentioned supra), it was stated that the Insurance Scheme would cover death due to any type of accident including road, natural calamities like landslides, floods, drowning, tree-falling, avalanches, etc. However, the Appellants have not adduced any evidence to prove their contention that there was indeed a storm on the night of 7.10.1997 and that the deceased fell to his death as a result, so as to lend support to their argument that the present case may be covered in the broader terms of the Insurance Scheme as envisaged in the letter dated 23.01.1996. 17. Be that as it may, the Provisos of insurance policy specifically disclose that compensation will not be paid in respect of injury of the injured if he is under the influence of intoxicating liquor. The relevant Proviso 4 of the insurance policy reads thus:- PROVISOS Provided always that the company shall not be liable under this policy to: 4) Payment of compensation in respect of death, injury or disablement of the insured from (a) intentional (illegible) suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drug (c) or (illegible) by insanity, (d) arising or resulting from the insured committing any breach of the law with criminal intent. The aforesaid Proviso 4 makes it amply clear that the injured is not entitled to compensation since on facts it is proved that he was intoxicated and that was due to intoxication.
### Response:
0
### Explanation:
11. We have heard the learned counsel for the parties at length and have considered the materials placed on record as well as the findings of the three consumer forums. In the facts and circumstances of the case, we do not find any reason to interfere with the impugned order dated 24.04.2009 passed by the National Commission for the reasons mentioned below.12. From a bare perusal of the Insurance Policy, as quoted supra, it is clear that only if the insured sustains any bodily injury resulting solely and directly from accident caused by outward, violent and visible means, the Insurance Company would be liable to indemnify the insured. Therefore, as per the Insurance Policy, only accidental death of the insured shall be indemnified. As noted above, the Post-Mortem Report clearly indicates that there were no injuries found on the body of the deceased. The probable cause of death as per the Final Opinion in the Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds death was accidental. Further, the expert opinions of Dr. D.S. Puri and Dr. D.J. Das Gupta (supra) also show that the cause of death was due to consumption of alcohol. In light of the explicit terms of the Insurance Policy, we find that the National Commission and the State Commission have rightly held that the deceaseds death was not accidental, and that the Insurance Company would not be liable to settle the Appellants claim.13. As for the liability of the Respondent No.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC was only acting as a mediator for depositing the premium of employees with the Insurance Company and had no liability as such under the Insurance Policy. The liability of Respondent No.1-HPSFC, if any, would be under the 1923 Act, proceedings under which have already been settled by the Commissioner, as recorded in the Impugned Order.14. At this stage, we consider it pertinent to deal with the contention raised by the Appellants that Respondent No.1-HPSFC ought to be directed to pay compensation in place of the Insurance Company on the basis of the judgment in Jamuna Devi (supra). In the facts of Jamuna Devi, the deceased employee in that case was also insured under the same Insurance Scheme. Upon his death, a claim was raised which was repudiated by the Insurance Company. When the matter came before the National Commission by way of revision petition, the National Commission held that the death was not accidental and therefore, repudiation of the claim by the Insurance Company was correct. However, the National Commission observed from the records that the deceased therein was given to believe that the policy covered natural death as well. The National Commission also considered the fact that before the introduction of the Scheme, a communication dated 23.01.1996 was addressed by the Financial Commissioner-cum-Secretary (PW) to all Heads of Departments under the Government of Himachal Pradesh giving details of the Insurance Scheme and the benefits arising therefrom. The said letter mentioned death as one of the events covered by the insurance scheme, however, it did not specify only accidental death. Therefore, the National Commission held that the employer in that case was liable to make payment of compensation.15. In our considered opinion, the judgment passed by the National Commission in Jamuna Devi (supra) is peculiar to the facts and circumstances of that case. There is nothing on record to show that the deceased in the present case was given to believe that the Insurance Policy covered natural death as well.Therefore, the directions issued in Jamuna Devi would not be applicable to the present case.16. At this juncture, we may also observe that in the communication dated 23.01.1996 addressed by the Financial Commissioner-cum-Secretary (PW) (mentioned supra), it was stated that the Insurance Scheme would cover death due to any type of accident including road, natural calamities like landslides, floods, drowning, tree-falling, avalanches, etc. However, the Appellants have not adduced any evidence to prove their contention that there was indeed a storm on the night of 7.10.1997 and that the deceased fell to his death as a result, so as to lend support to their argument that the present case may be covered in the broader terms of the Insurance Scheme as envisaged in the letter dated 23.01.1996.17. Be that as it may, the Provisos of insurance policy specifically disclose that compensation will not be paid in respect of injury of the injured if he is under the influence of intoxicating liquor. The relevant Proviso 4 of the insurance policy reads thus:-Provided always that the company shall not be liable under this policy to:4) Payment of compensation in respect of death, injury or disablement of the insured from (a) intentional (illegible) suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drug (c) or (illegible) by insanity, (d) arising or resulting from the insured committing any breach of the law with criminal intent.The aforesaid Proviso 4 makes it amply clear that the injured is not entitled to compensation since on facts it is proved that he was intoxicated and that was due to intoxication.
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Cbi Hyderabad Vs. Subramani Gopalakrishnan | before the trial Court on time, on every date of hearing, unless exempted by orders of the Court; (v) the trial Court is free to decide the case without being influenced by any of the observations made by the High Court or by this Court; (vi) for any reason, trial is not concluded before 31.07.2011, the accused would be at liberty to approach the trial Court for grant of bail. 17) The recent order dated 26.10.2010 of this Court referred to above makes it clear that this Court cancelled the bail in respect of prime accused, namely, A1, A2, A3, A7, A8 and A9. It is also brought to our notice that in view of the specific directions of this Court in the said order, the trial has started and according to the learned ASG, it is likely to be concluded by the cut off date, i.e. 31.07.2011. It is also brought to our notice that out of 697 witnesses, the prosecution has dropped 470 witnesses and only 227 witnesses are to be examined. Out of this, 193 witnesses have already been examined and some of them are to be cross-examined. According to the him, only 30 more witnesses have to be produced and examined. 18) In view of the directions of this Court in the subsequent order dated 26.10.2010, the trial is proceeding on day-to-day basis and likely to be concluded by 31.07.2011. We are satisfied that the reasons stated while granting bail for Talluri Srinivas (A5) by this Court on 04.02.2010 are not applicable to the respondents herein. Accordingly reliance on the basis of the bail order granted in favour of A5 cannot be applied to these respondents. 19) Mr. Mukul Rohatgi, learned senior counsel, appearing for A4 and Mr. D. Rama Krishna Reddy, learned counsel appearing for A10 strongly commented the conduct of the CBI in not challenging the order of the High Court granting bail to these persons and failure on their part to place these matters before the Court at the appropriate time. It is not in dispute that the High Court granted bail to these respondents on 25.06.2010 and the CBI challenging the said order filed two special leave petitions before this Court on 06.10.2010. No doubt, the matter was listed before the Court only on 01.04.2011 on which date, this Court issued notice to the respondents and on the same day the notice was accepted by the respective counsel for the respondents and they were permitted to file their reply. After filing reply, when the matter again came up for hearing on 04.04.2011 at the request of both sides, the matter was posted for final hearing on 15.04.2011 and was argued at length on the same day. Though the appellant-CBI was not so diligent to bring the special leave petitions for orders immediately after filing of the same due to various reasons and compliance of the office report had taken some time, however, on this ground their challenge with regard to the order of the High Court granting bail cannot be rejected without going into the merits. 20) Though Mr. D. Rama Krishna Reddy, learned counsel for A-10, submitted that he being the internal auditor, employee of M/s SCSL, there is no statutory function and his name does not find place in the first charge-sheet and he was named only in the second charge-sheet, considering the materials available, it is not desirable to go into the correctness or otherwise at this juncture and at the same time in view of the magnitude of the scam and without the assistance and connivance of persons in-charge of auditing, we are unable to accept the stand of the learned counsel and hold that the High Court is not justified in granting bail for him. 21) It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. We have already pointed out that the issue before us is not for cancellation of bail granted earlier, the question is whether in the facts and circumstances of the magnitude of the scam, the bail granted in favour of all the main accused have been cancelled and the Respondent Nos. A4 and A10 being external and internal auditors respectively, their role being paramount in inflating processing assets and bank balances of M/s SCSL, we are of the view that the High Court is not justified in granting bail. 22) In view of the specific allegation by the prosecution that A4 and A10 were party to the criminal conspiracy showing inflated (non-existent) cash and bank balances reflected in the books, inflated proceeds over a period of last several years, frauds and cooking books of accounts, we are satisfied that the High Court ought not to have granted bail to these respondents. Considering the subsequent order of this Court dated 26.10.2010 cancelling the bail in respect of other accused and issuing directions based on which the trial has to be concluded within the schedule time, viz. 31.07.2011, we hold that the High Court committed an error in granting bail to these respondents A4 and A10. | 1[ds]we are unable to accept the stand of the learned counsel and hold that the High Court is not justified in granting bail for him21) It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. We have already pointed out that the issue before us is not for cancellation of bail granted earlier, the question is whether in the facts and circumstances of the magnitude of the scam, the bail granted in favour of all the main accused have been cancelled and the Respondent Nos. A4 and A10 being external and internal auditors respectively, their role being paramount in inflating processing assets and bank balances of M/s SCSL, we are of the view that the High Court is not justified in granting bail22) In view of the specific allegation by the prosecution that A4 and A10 were party to the criminal conspiracy showing inflated (non-existent) cash and bank balances reflected in the books, inflated proceeds over a period of last several years, frauds and cooking books of accounts, we are satisfied that the High Court ought not to have granted bail to these respondents. Considering the subsequent order of this Court dated 26.10.2010 cancelling the bail in respect of other accused and issuing directions based on which the trial has to be concluded within the schedule time, viz. 31.07.2011, we hold that the High Court committed an error in granting bail to these respondents A4 and A10 | 1 | 3,830 | 424 | ### Instruction:
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before the trial Court on time, on every date of hearing, unless exempted by orders of the Court; (v) the trial Court is free to decide the case without being influenced by any of the observations made by the High Court or by this Court; (vi) for any reason, trial is not concluded before 31.07.2011, the accused would be at liberty to approach the trial Court for grant of bail. 17) The recent order dated 26.10.2010 of this Court referred to above makes it clear that this Court cancelled the bail in respect of prime accused, namely, A1, A2, A3, A7, A8 and A9. It is also brought to our notice that in view of the specific directions of this Court in the said order, the trial has started and according to the learned ASG, it is likely to be concluded by the cut off date, i.e. 31.07.2011. It is also brought to our notice that out of 697 witnesses, the prosecution has dropped 470 witnesses and only 227 witnesses are to be examined. Out of this, 193 witnesses have already been examined and some of them are to be cross-examined. According to the him, only 30 more witnesses have to be produced and examined. 18) In view of the directions of this Court in the subsequent order dated 26.10.2010, the trial is proceeding on day-to-day basis and likely to be concluded by 31.07.2011. We are satisfied that the reasons stated while granting bail for Talluri Srinivas (A5) by this Court on 04.02.2010 are not applicable to the respondents herein. Accordingly reliance on the basis of the bail order granted in favour of A5 cannot be applied to these respondents. 19) Mr. Mukul Rohatgi, learned senior counsel, appearing for A4 and Mr. D. Rama Krishna Reddy, learned counsel appearing for A10 strongly commented the conduct of the CBI in not challenging the order of the High Court granting bail to these persons and failure on their part to place these matters before the Court at the appropriate time. It is not in dispute that the High Court granted bail to these respondents on 25.06.2010 and the CBI challenging the said order filed two special leave petitions before this Court on 06.10.2010. No doubt, the matter was listed before the Court only on 01.04.2011 on which date, this Court issued notice to the respondents and on the same day the notice was accepted by the respective counsel for the respondents and they were permitted to file their reply. After filing reply, when the matter again came up for hearing on 04.04.2011 at the request of both sides, the matter was posted for final hearing on 15.04.2011 and was argued at length on the same day. Though the appellant-CBI was not so diligent to bring the special leave petitions for orders immediately after filing of the same due to various reasons and compliance of the office report had taken some time, however, on this ground their challenge with regard to the order of the High Court granting bail cannot be rejected without going into the merits. 20) Though Mr. D. Rama Krishna Reddy, learned counsel for A-10, submitted that he being the internal auditor, employee of M/s SCSL, there is no statutory function and his name does not find place in the first charge-sheet and he was named only in the second charge-sheet, considering the materials available, it is not desirable to go into the correctness or otherwise at this juncture and at the same time in view of the magnitude of the scam and without the assistance and connivance of persons in-charge of auditing, we are unable to accept the stand of the learned counsel and hold that the High Court is not justified in granting bail for him. 21) It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. We have already pointed out that the issue before us is not for cancellation of bail granted earlier, the question is whether in the facts and circumstances of the magnitude of the scam, the bail granted in favour of all the main accused have been cancelled and the Respondent Nos. A4 and A10 being external and internal auditors respectively, their role being paramount in inflating processing assets and bank balances of M/s SCSL, we are of the view that the High Court is not justified in granting bail. 22) In view of the specific allegation by the prosecution that A4 and A10 were party to the criminal conspiracy showing inflated (non-existent) cash and bank balances reflected in the books, inflated proceeds over a period of last several years, frauds and cooking books of accounts, we are satisfied that the High Court ought not to have granted bail to these respondents. Considering the subsequent order of this Court dated 26.10.2010 cancelling the bail in respect of other accused and issuing directions based on which the trial has to be concluded within the schedule time, viz. 31.07.2011, we hold that the High Court committed an error in granting bail to these respondents A4 and A10.
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we are unable to accept the stand of the learned counsel and hold that the High Court is not justified in granting bail for him21) It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. We have already pointed out that the issue before us is not for cancellation of bail granted earlier, the question is whether in the facts and circumstances of the magnitude of the scam, the bail granted in favour of all the main accused have been cancelled and the Respondent Nos. A4 and A10 being external and internal auditors respectively, their role being paramount in inflating processing assets and bank balances of M/s SCSL, we are of the view that the High Court is not justified in granting bail22) In view of the specific allegation by the prosecution that A4 and A10 were party to the criminal conspiracy showing inflated (non-existent) cash and bank balances reflected in the books, inflated proceeds over a period of last several years, frauds and cooking books of accounts, we are satisfied that the High Court ought not to have granted bail to these respondents. Considering the subsequent order of this Court dated 26.10.2010 cancelling the bail in respect of other accused and issuing directions based on which the trial has to be concluded within the schedule time, viz. 31.07.2011, we hold that the High Court committed an error in granting bail to these respondents A4 and A10
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Raj Kanta Vs. Financial Commissioner, Punjab And Anr | (ii) of S. 9 (1) of the Act seems to us that the word regular connotes a consistent course of conduct without any break or breach and the words regular payment of rent mean that the rent should be paid punctually without any default or laxity. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under S. 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of S. 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates. In the instant case, the words failure to pay rent regularly without sufficient cause postulate the following conditions : -(1) there must be a failure on the part of the tenant to pay rent; (2) such failure must be to pay rent regularly, that is to say, the rent should be paid punctually, consistently, without any break or breach; (3) It there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of S. 9 (1) (ii). 10. We might add at the risk of repetition that the use of the words without sufficient cause clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. If, however, we construe the word regularly as meaning at regular intervals so as to include a single default, then the term without sufficient cause becomes absolutely redundant. For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of S. 9 (1) without insisting on the tenant to prove sufficient cause for this single default. That would, therefore, make the words sufficient cause meaningless in such cases. It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Francis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote-its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature. We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning. In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word default the word regularly has been employed which is immediately followed by the words without sufficient cause. Moreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of S. 9 (1) of the Act. Finally, we cannot lose sight of the explanation used for the various clauses of S. 9 (1) which runs thus :"Explanation. - for the purposes of clause (iii), a tenant shall be deemed to be in arrears of rent at the @page-SC1468 commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent." 11. While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of S. 9 (1) of the Act and which invalidates the reasons given by the High Court. 12. For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of S. 9 (1) of the Act. As the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the respondents that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record. This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980. | 1[ds]While the Revenue Courts had held that the mere fact that the tenants made a single default in payment for the rent for Kharif 1961 was sufficient to attract the penalty of ejectment envisaged by S. 9 (1) (ii) of the Act, the High Court took the view that on a proper interpretation of the term regularly it will appear that the legislature did not contemplate that ejectment should be ordered straightway even if a single default, though unexplained, is committed by the tenant which interpretation would run against the avowed object of the legislation which was to advance and ameliorate the lot of the tenants. The High Court had considered the matter at very great length and placed a very wide interpretation on the term regularly so as not to include within its ambit one single default. It has also referred to a number of authorities and Dictionaries to show that the word regularly does not mean absolute symmetry. Having gone through the reasons given by the High Court we are unable to agree with the view taken either by the single Judge or the Division Bench of the High Court. There can be no. doubt that the Act is a piece of social legislation meant to ameliorate the lot of the tenants and to further the rights of the tenants by conferring on them the status of permanent tenancy or the rights to purchase the land on payment of instalments. At the same time, we cannot overlook the fact that the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub-clauses of S. 9 of the Act5. While interpreting the word regularly the High Court seems to have overlooked two important circumstances. In the first place, the word regularly has been used immediately after the phrase fails to pay rent and is followed by the words without sufficient cause. Secondly there is nothing in the section to indicate that the legislature intended to exclude one single default. The High Court attempted to supply words to the section which are not there. In doing so it has failed to consider that if once the court was to lay down as particular line of demarcation by extending the connotation of the word regularly to exclude one default, it is difficult to explain why the legislature contemplated only one default and not two or three for that matterIt is no. doubt true that the main thrust of the provisions of the Act are directed towards preventing the landlords from ejecting their tenants except on the grounds mentioned in S. 9, but at the same time, it cannot be denied that the legislature undoubtedly provided some protection to the landlords by conferring on them a limited right to eject their tenants and within this limited sphere, the right was absolute and could not be curtailed by interpreting clause (ii) of S. 9 (1) of the Act through a process of twisting the law and doing violence to the language of the section. To begin with, the word regular is derived from the word regular which means rule and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A, p. 241) the word regular has been defined as steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule. standard, or pattern. It is further stated in the said Book that regular means steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. The word regular means in a regular manner, methodically, in due order9. On an overall consideration of the matter, a correct interpretation of the plain language and the words and phrases used in clause (ii) of S. 9 (1) of the Act seems to us that the word regular connotes a consistent course of conduct without any break or breach and the words regular payment of rent mean that the rent should be paid punctually without any default or laxity. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under S. 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of S. 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates10. We might add at the risk of repetition that the use of the words without sufficient cause clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. If, however, we construe the word regularly as meaning at regular intervals so as to include a single default, then the term without sufficient cause becomes absolutely redundant. For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of S. 9 (1) without insisting on the tenant to prove sufficient cause for this single default. That would, therefore, make the words sufficient cause meaningless in such cases. It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Francis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote-its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature. We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning. In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word default the word regularly has been employed which is immediately followed by the words without sufficient causeMoreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of S. 9 (1) of the Act11. While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of S. 9 (1) of the Act and which invalidates the reasons given by the High Court12. For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of S. 9 (1) of the Act. As the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the respondents that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record. This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980. | 1 | 3,070 | 1,632 | ### Instruction:
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(ii) of S. 9 (1) of the Act seems to us that the word regular connotes a consistent course of conduct without any break or breach and the words regular payment of rent mean that the rent should be paid punctually without any default or laxity. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under S. 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of S. 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates. In the instant case, the words failure to pay rent regularly without sufficient cause postulate the following conditions : -(1) there must be a failure on the part of the tenant to pay rent; (2) such failure must be to pay rent regularly, that is to say, the rent should be paid punctually, consistently, without any break or breach; (3) It there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of S. 9 (1) (ii). 10. We might add at the risk of repetition that the use of the words without sufficient cause clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. If, however, we construe the word regularly as meaning at regular intervals so as to include a single default, then the term without sufficient cause becomes absolutely redundant. For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of S. 9 (1) without insisting on the tenant to prove sufficient cause for this single default. That would, therefore, make the words sufficient cause meaningless in such cases. It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Francis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote-its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature. We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning. In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word default the word regularly has been employed which is immediately followed by the words without sufficient cause. Moreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of S. 9 (1) of the Act. Finally, we cannot lose sight of the explanation used for the various clauses of S. 9 (1) which runs thus :"Explanation. - for the purposes of clause (iii), a tenant shall be deemed to be in arrears of rent at the @page-SC1468 commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent." 11. While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of S. 9 (1) of the Act and which invalidates the reasons given by the High Court. 12. For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of S. 9 (1) of the Act. As the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the respondents that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record. This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980.
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limited right to eject their tenants and within this limited sphere, the right was absolute and could not be curtailed by interpreting clause (ii) of S. 9 (1) of the Act through a process of twisting the law and doing violence to the language of the section. To begin with, the word regular is derived from the word regular which means rule and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A, p. 241) the word regular has been defined as steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule. standard, or pattern. It is further stated in the said Book that regular means steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. The word regular means in a regular manner, methodically, in due order9. On an overall consideration of the matter, a correct interpretation of the plain language and the words and phrases used in clause (ii) of S. 9 (1) of the Act seems to us that the word regular connotes a consistent course of conduct without any break or breach and the words regular payment of rent mean that the rent should be paid punctually without any default or laxity. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under S. 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of S. 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates10. We might add at the risk of repetition that the use of the words without sufficient cause clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. If, however, we construe the word regularly as meaning at regular intervals so as to include a single default, then the term without sufficient cause becomes absolutely redundant. For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of S. 9 (1) without insisting on the tenant to prove sufficient cause for this single default. That would, therefore, make the words sufficient cause meaningless in such cases. It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Francis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote-its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature. We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning. In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word default the word regularly has been employed which is immediately followed by the words without sufficient causeMoreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of S. 9 (1) of the Act11. While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of S. 9 (1) of the Act and which invalidates the reasons given by the High Court12. For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of S. 9 (1) of the Act. As the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the respondents that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record. This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980.
|
E.S.P.Rajaram and Ors Vs. Union of India and Ors | the Court has necessary jurisdiction and power to do so. Accordingly, contentions (A) and (B) are held and answered against the petitioners." 20. In the case of Ved Prakash and others v. Union of India and others, 1994(1) SCC 45, taking note of the piquant situation caused due to inordinate delay in payment of compensation for the property acquired under Section 4 of the Land Acquisition Act, this Court made the following observation : "The petitioners because of the delay and inaction on the part of the respondents are in a great predicament. Any amount determined as market value of their lands acquired, with reference to the dates of issuance of notifications under sub-section (1) of Section 4 of the Act i.e. at the rate prevalent 15-21 years prior to the dates of the making of the award, cannot be held to be compliance of the mandate regarding payment of market value of the land so acquired under the Constitution and the Act. This Court faced with such a situation where proceedings have remained pending for years after issuance of declarations under Section 6, in order to protect the petitioners concerned from irreparable injury i.e. getting compensation for their lands acquired with reference to the date of notification under sub-section (1) of Section 4, which may be more than a decade before the date of the making of the award, has advanced the date of notification under sub-section (1) of Section, so that market value of the land so acquired is paid at a just and reasonable rate. Reference in this connection may be made to the cases of Ujjain Vikas Pradhikaran v. Raj Kumar Johri, (1992)1 SCC 328 ; Akhara Brahm Buta, Amritsar v. State of Punjab, (1992)4 SCC 243 and Bihar State Housing Board v. Ram Bihari Mahato, AIR 1988 Supreme Court 2134. This Court has advanced the date of notification under sub-section (1) of Section 4 of the Act, in the cases referred to above, without assigning any reason, as to how the date fixed by Sections 11 and 23 of the Act, can be altered for ascertainment of the market value of land. The power of the Court under Article 142 is very wide and can be exercised in the ends of justice. The scope of the said Article was recently examined in the case of Union Carbide Corpn. v. Union of India, 1991(4) SCC 584." (Emphasis supplied) 21. In the case of N.A. Mohammed Kasim (Dead) and another v. Sulochana and others, (1995) Supp 3 SCC 128, which arose from a civil suit this Court in the facts and circumstances of the case considered it fit for invoking Courts power under Article 142 for giving equitable relief to the plaintiff-respondents, not on ground on which they claimed relief in the suit but on the ground of promissory estoppel, equity and fair play. 22. From the conspectus of the views expressed in the decided cases noted above it is clear that this Court has invoked the powers vested under Section 142 of the Constitution in different types of cases involving different fact situations for doing complete justice between the parties. 23. In the case on hand the controversy relates to the scale of pay admissible for Traffic Apprentices in the Railways appointed prior to the cut-off date. The controversy in its very nature is one which applies to all such employees of the Railways; it is not a controversy which is confined to some individual employees or a section of the employees. If the judgment of the tribunal which had taken a view contrary to the ratio laid down by judgment of this Court in M. Bhaskars case (supra) was allowed to stand then the resultant position would have been that some Traffic Apprentices who were parties in those cases would have gained an unfair and undeserved advantage over other employees who are or were holding the same post. Such enviable position would not only have been per se discriminatory but could have resulted in a situation which is undesirable for a cadre of large number of employees in a big establishment like that of the Indian Railways. To avoid such a situation this Court made the observations in paragraph 17 of the judgment. At the cost of repetition we may reiterate that since the main plank of argument of the appellants was that since they were not parties in the case they had no opportunity to place their case before this Court made the observations in paragraph 17 of the judgment as aforementioned we specifically asked learned counsel appearing for the parties to place the argument in support of their challenge to the observations made by this Court on merits. No point of substance assailing the observations on merits could be placed by them. The only contention made in that regard was some of the employes who were given benefit in the judgments of the CAT have got further promotions and they may lose the benefit of such promotion in case the observations made in paragraph 17 of the judgment are allowed to stand as it is. We are not impressed by the contention raised. If some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to a higher post then the basis of such promotion been on a non-existent; the superstructure built on such foundation should not be allowed to stand. This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corollary from the observations made by this Court in paragraph 18 of the judgment in M. Bhaskars case (supra). | 0[ds]8. We have carefully perused the judgment in M. Bhaskars case (supra). The decision in that case has been taken on a detailed analysis of the relevant provisions of the Indian Railway Establishment Code and the Indian Railway Establishment Manual (1968 Edn.), and in the light of certain general principles of law relating to recruitment cogent reasons have been given in support of the findings and conclusions arrived at in the judgment. As noted earlier no contention was advanced before us pointing out any serious error in the decision therein. We are satisfied that in the facts and circumstances of the case placed before their Lordships the decision is correct and warrants no interference.From the conspectus of the views expressed in the decided cases noted above it is clear that this Court has invoked the powers vested under Section 142 of the Constitution in different types of cases involving different fact situations for doing complete justice between the parties.In the case on hand the controversy relates to the scale of pay admissible for Traffic Apprentices in the Railways appointed prior to thedate. The controversy in its very nature is one which applies to all such employees of the Railways; it is not a controversy which is confined to some individual employees or a section of the employees. If the judgment of the tribunal which had taken a view contrary to the ratio laid down by judgment of this Court in M. Bhaskars case (supra) was allowed to stand then the resultant position would have been that some Traffic Apprentices who were parties in those cases would have gained an unfair and undeserved advantage over other employees who are or were holding the same post. Such enviable position would not only have been per se discriminatory but could have resulted in a situation which is undesirable for a cadre of large number of employees in a big establishment like that of the Indian Railways. To avoid such a situation this Court made the observations in paragraph 17 of the judgment. At the cost of repetition we may reiterate that since the main plank of argument of the appellants was that since they were not parties in the case they had no opportunity to place their case before this Court made the observations in paragraph 17 of the judgment as aforementioned we specifically asked learned counsel appearing for the parties to place the argument in support of their challenge to the observations made by this Court on merits. No point of substance assailing the observations on merits could be placed by them. The only contention made in that regard was some of the employes who were given benefit in the judgments of the CAT have got further promotions and they may lose the benefit of such promotion in case the observations made in paragraph 17 of the judgment are allowed to stand as it is. We are not impressed by the contention raised. If some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to a higher post then the basis of such promotion been on athe superstructure built on such foundation should not be allowed to stand. This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corollary from the observations made by this Court in paragraph 18 of the judgment in M. Bhaskars case (supra). | 0 | 6,653 | 665 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the Court has necessary jurisdiction and power to do so. Accordingly, contentions (A) and (B) are held and answered against the petitioners." 20. In the case of Ved Prakash and others v. Union of India and others, 1994(1) SCC 45, taking note of the piquant situation caused due to inordinate delay in payment of compensation for the property acquired under Section 4 of the Land Acquisition Act, this Court made the following observation : "The petitioners because of the delay and inaction on the part of the respondents are in a great predicament. Any amount determined as market value of their lands acquired, with reference to the dates of issuance of notifications under sub-section (1) of Section 4 of the Act i.e. at the rate prevalent 15-21 years prior to the dates of the making of the award, cannot be held to be compliance of the mandate regarding payment of market value of the land so acquired under the Constitution and the Act. This Court faced with such a situation where proceedings have remained pending for years after issuance of declarations under Section 6, in order to protect the petitioners concerned from irreparable injury i.e. getting compensation for their lands acquired with reference to the date of notification under sub-section (1) of Section 4, which may be more than a decade before the date of the making of the award, has advanced the date of notification under sub-section (1) of Section, so that market value of the land so acquired is paid at a just and reasonable rate. Reference in this connection may be made to the cases of Ujjain Vikas Pradhikaran v. Raj Kumar Johri, (1992)1 SCC 328 ; Akhara Brahm Buta, Amritsar v. State of Punjab, (1992)4 SCC 243 and Bihar State Housing Board v. Ram Bihari Mahato, AIR 1988 Supreme Court 2134. This Court has advanced the date of notification under sub-section (1) of Section 4 of the Act, in the cases referred to above, without assigning any reason, as to how the date fixed by Sections 11 and 23 of the Act, can be altered for ascertainment of the market value of land. The power of the Court under Article 142 is very wide and can be exercised in the ends of justice. The scope of the said Article was recently examined in the case of Union Carbide Corpn. v. Union of India, 1991(4) SCC 584." (Emphasis supplied) 21. In the case of N.A. Mohammed Kasim (Dead) and another v. Sulochana and others, (1995) Supp 3 SCC 128, which arose from a civil suit this Court in the facts and circumstances of the case considered it fit for invoking Courts power under Article 142 for giving equitable relief to the plaintiff-respondents, not on ground on which they claimed relief in the suit but on the ground of promissory estoppel, equity and fair play. 22. From the conspectus of the views expressed in the decided cases noted above it is clear that this Court has invoked the powers vested under Section 142 of the Constitution in different types of cases involving different fact situations for doing complete justice between the parties. 23. In the case on hand the controversy relates to the scale of pay admissible for Traffic Apprentices in the Railways appointed prior to the cut-off date. The controversy in its very nature is one which applies to all such employees of the Railways; it is not a controversy which is confined to some individual employees or a section of the employees. If the judgment of the tribunal which had taken a view contrary to the ratio laid down by judgment of this Court in M. Bhaskars case (supra) was allowed to stand then the resultant position would have been that some Traffic Apprentices who were parties in those cases would have gained an unfair and undeserved advantage over other employees who are or were holding the same post. Such enviable position would not only have been per se discriminatory but could have resulted in a situation which is undesirable for a cadre of large number of employees in a big establishment like that of the Indian Railways. To avoid such a situation this Court made the observations in paragraph 17 of the judgment. At the cost of repetition we may reiterate that since the main plank of argument of the appellants was that since they were not parties in the case they had no opportunity to place their case before this Court made the observations in paragraph 17 of the judgment as aforementioned we specifically asked learned counsel appearing for the parties to place the argument in support of their challenge to the observations made by this Court on merits. No point of substance assailing the observations on merits could be placed by them. The only contention made in that regard was some of the employes who were given benefit in the judgments of the CAT have got further promotions and they may lose the benefit of such promotion in case the observations made in paragraph 17 of the judgment are allowed to stand as it is. We are not impressed by the contention raised. If some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to a higher post then the basis of such promotion been on a non-existent; the superstructure built on such foundation should not be allowed to stand. This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corollary from the observations made by this Court in paragraph 18 of the judgment in M. Bhaskars case (supra).
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8. We have carefully perused the judgment in M. Bhaskars case (supra). The decision in that case has been taken on a detailed analysis of the relevant provisions of the Indian Railway Establishment Code and the Indian Railway Establishment Manual (1968 Edn.), and in the light of certain general principles of law relating to recruitment cogent reasons have been given in support of the findings and conclusions arrived at in the judgment. As noted earlier no contention was advanced before us pointing out any serious error in the decision therein. We are satisfied that in the facts and circumstances of the case placed before their Lordships the decision is correct and warrants no interference.From the conspectus of the views expressed in the decided cases noted above it is clear that this Court has invoked the powers vested under Section 142 of the Constitution in different types of cases involving different fact situations for doing complete justice between the parties.In the case on hand the controversy relates to the scale of pay admissible for Traffic Apprentices in the Railways appointed prior to thedate. The controversy in its very nature is one which applies to all such employees of the Railways; it is not a controversy which is confined to some individual employees or a section of the employees. If the judgment of the tribunal which had taken a view contrary to the ratio laid down by judgment of this Court in M. Bhaskars case (supra) was allowed to stand then the resultant position would have been that some Traffic Apprentices who were parties in those cases would have gained an unfair and undeserved advantage over other employees who are or were holding the same post. Such enviable position would not only have been per se discriminatory but could have resulted in a situation which is undesirable for a cadre of large number of employees in a big establishment like that of the Indian Railways. To avoid such a situation this Court made the observations in paragraph 17 of the judgment. At the cost of repetition we may reiterate that since the main plank of argument of the appellants was that since they were not parties in the case they had no opportunity to place their case before this Court made the observations in paragraph 17 of the judgment as aforementioned we specifically asked learned counsel appearing for the parties to place the argument in support of their challenge to the observations made by this Court on merits. No point of substance assailing the observations on merits could be placed by them. The only contention made in that regard was some of the employes who were given benefit in the judgments of the CAT have got further promotions and they may lose the benefit of such promotion in case the observations made in paragraph 17 of the judgment are allowed to stand as it is. We are not impressed by the contention raised. If some employees were unjustly and improperly granted a higher scale of pay and on that basis were given promotion to a higher post then the basis of such promotion been on athe superstructure built on such foundation should not be allowed to stand. This is absolutely necessary for the sake of maintaining equality and fair play with the other similarly placed employees. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corollary from the observations made by this Court in paragraph 18 of the judgment in M. Bhaskars case (supra).
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THE STATE OF JHARKHAND Vs. M/S HSS INTEGRATED SDN | to the terms of the contract and without following due procedure as required under the relevant clauses of the contract. The said finding of fact recorded by the learned Arbitral Tribunal is on appreciation of evidence. The said finding of fact has been confirmed in the proceedings under Sections 34 and 37 of the Arbitration Act. Thus, there are concurrent findings of fact recorded by the learned Arbitral Tribunal, First Appellate Court and the High Court that the termination of the contract was illegal and without following due procedure as required under the relevant provisions of the contract. 6.1 In the case of Progressive¬MVR (supra), after considering the catena of decisions of this Court on the scope and ambit of the proceedings under Section 34 of the Arbitration Act, this Court has observed and held that even when the view taken by the arbitrator is a plausible view, and/or when two views are possible, a particular view taken by the Arbitral Tribunal which is also reasonable should not be interfered with in a proceeding under Section 34 of the Arbitration Act. 6.2 In the case of Datar Switchgear Ltd. (supra), this Court has observed and held 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 the evidence on record are not to be scrutinized as if the Court was sitting in appeal. In para 51 of the judgment, it is observed and held as under: 51 Categorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as Respondent 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 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 2 which had invested whopping amount of Rs 163 crores in the project. A perusal of the award reveals that the Tribunal investigated the conduct of the 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 2 is right in its submission that the fundamental breach, by its very nature, pervades the entire contract and once 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 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 a catena of judgments pronounced by this Court without any exception thereto [ See — Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204 and S. Munishamappa v. B. Venkatarayappa, (1981) 3 SCC 260 ] . As held by this Court in catena of decisions, the award passed by the Arbitral Tribunal can be interfered with in the proceedings under Sections 34 and 37 of Arbitration Act only in a case where the finding is perverse and/or contrary to the evidence and/or the same is against the public policy. (see Associate Builders v. DDA (2015) 3 SCC 49 etc.) 6.3 In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record. Therefore, as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal. 6.4 Once it is held that the termination was illegal and thereafter when the learned Arbitral Tribunal has considered the claims on merits, which basically were with respect to the unpaid amount in respect of the work executed under the contract and loss of profit. Cogent reasons have been given by the learned Arbitral Tribunal while allowing/partly allowing the respective claims. It is required to be noted that the learned Arbitral Tribunal has partly allowed some of the claims and even disallowed also some of the claims. There is a proper application of mind by the learned Arbitral Tribunal on the respective claims. Therefore, the same is not required to be interfered with, more particularly, when in the proceedings under Sections 34 and 37 of the Arbitration Act, the petitioners have failed. 7. Once the finding recorded by the learned Arbitral Tribunal that the termination of the contract was illegal is upheld and the claims made by the claimants have been allowed or allowed partly, in that case, the counter-claim submitted by the petitioners was liable to be rejected and the same is rightly rejected. No interference of this Court is called for. | 0[ds]As held by this Court in catena of decisions, the award passed by the Arbitral Tribunal can be interfered with in the proceedings under Sections 34 and 37 of Arbitration Act only in a case where the finding is perverse and/or contrary to the evidence and/or the same is against the public policy. (see Associate Builders v. DDA (2015) 3 SCC 49 etc.)6.3 In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record. Therefore, as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal6.4 Once it is held that the termination was illegal and thereafter when the learned Arbitral Tribunal has considered the claims on merits, which basically were with respect to the unpaid amount in respect of the work executed under the contract and loss of profit. Cogent reasons have been given by the learned Arbitral Tribunal while allowing/partly allowing the respective claims. It is required to be noted that the learned Arbitral Tribunal has partly allowed some of the claims and even disallowed also some of the claims. There is a proper application of mind by the learned Arbitral Tribunal on the respective claims. Therefore, the same is not required to be interfered with, more particularly, when in the proceedings under Sections 34 and 37 of the Arbitration Act, the petitioners have failed7. Once the finding recorded by the learned Arbitral Tribunal that the termination of the contract was illegal is upheld and the claims made by the claimants have been allowed or allowed partly, in that case, the counter-claim submitted by the petitioners was liable to be rejected and the same is rightly rejected. No interference of this Court is called for. | 0 | 2,575 | 386 | ### 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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to the terms of the contract and without following due procedure as required under the relevant clauses of the contract. The said finding of fact recorded by the learned Arbitral Tribunal is on appreciation of evidence. The said finding of fact has been confirmed in the proceedings under Sections 34 and 37 of the Arbitration Act. Thus, there are concurrent findings of fact recorded by the learned Arbitral Tribunal, First Appellate Court and the High Court that the termination of the contract was illegal and without following due procedure as required under the relevant provisions of the contract. 6.1 In the case of Progressive¬MVR (supra), after considering the catena of decisions of this Court on the scope and ambit of the proceedings under Section 34 of the Arbitration Act, this Court has observed and held that even when the view taken by the arbitrator is a plausible view, and/or when two views are possible, a particular view taken by the Arbitral Tribunal which is also reasonable should not be interfered with in a proceeding under Section 34 of the Arbitration Act. 6.2 In the case of Datar Switchgear Ltd. (supra), this Court has observed and held 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 the evidence on record are not to be scrutinized as if the Court was sitting in appeal. In para 51 of the judgment, it is observed and held as under: 51 Categorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as Respondent 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 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 2 which had invested whopping amount of Rs 163 crores in the project. A perusal of the award reveals that the Tribunal investigated the conduct of the 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 2 is right in its submission that the fundamental breach, by its very nature, pervades the entire contract and once 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 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 a catena of judgments pronounced by this Court without any exception thereto [ See — Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204 and S. Munishamappa v. B. Venkatarayappa, (1981) 3 SCC 260 ] . As held by this Court in catena of decisions, the award passed by the Arbitral Tribunal can be interfered with in the proceedings under Sections 34 and 37 of Arbitration Act only in a case where the finding is perverse and/or contrary to the evidence and/or the same is against the public policy. (see Associate Builders v. DDA (2015) 3 SCC 49 etc.) 6.3 In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record. Therefore, as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal. 6.4 Once it is held that the termination was illegal and thereafter when the learned Arbitral Tribunal has considered the claims on merits, which basically were with respect to the unpaid amount in respect of the work executed under the contract and loss of profit. Cogent reasons have been given by the learned Arbitral Tribunal while allowing/partly allowing the respective claims. It is required to be noted that the learned Arbitral Tribunal has partly allowed some of the claims and even disallowed also some of the claims. There is a proper application of mind by the learned Arbitral Tribunal on the respective claims. Therefore, the same is not required to be interfered with, more particularly, when in the proceedings under Sections 34 and 37 of the Arbitration Act, the petitioners have failed. 7. Once the finding recorded by the learned Arbitral Tribunal that the termination of the contract was illegal is upheld and the claims made by the claimants have been allowed or allowed partly, in that case, the counter-claim submitted by the petitioners was liable to be rejected and the same is rightly rejected. No interference of this Court is called for.
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### Explanation:
As held by this Court in catena of decisions, the award passed by the Arbitral Tribunal can be interfered with in the proceedings under Sections 34 and 37 of Arbitration Act only in a case where the finding is perverse and/or contrary to the evidence and/or the same is against the public policy. (see Associate Builders v. DDA (2015) 3 SCC 49 etc.)6.3 In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record. Therefore, as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal6.4 Once it is held that the termination was illegal and thereafter when the learned Arbitral Tribunal has considered the claims on merits, which basically were with respect to the unpaid amount in respect of the work executed under the contract and loss of profit. Cogent reasons have been given by the learned Arbitral Tribunal while allowing/partly allowing the respective claims. It is required to be noted that the learned Arbitral Tribunal has partly allowed some of the claims and even disallowed also some of the claims. There is a proper application of mind by the learned Arbitral Tribunal on the respective claims. Therefore, the same is not required to be interfered with, more particularly, when in the proceedings under Sections 34 and 37 of the Arbitration Act, the petitioners have failed7. Once the finding recorded by the learned Arbitral Tribunal that the termination of the contract was illegal is upheld and the claims made by the claimants have been allowed or allowed partly, in that case, the counter-claim submitted by the petitioners was liable to be rejected and the same is rightly rejected. No interference of this Court is called for.
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Sha Mulchand & Co. Ltd.(In Liquidation) Vs. Jawahar Mills Ltd | their Lordships to remedy the defect." Learned advocate for the Mills, however, points out that the reason for holding that Art. 181 was confined to applications under the Code was that the Article should be construed ejusdem generis and that, as all the Articles in the third division of the schedule to the Limitation Act related to applications under the Code, Article 181, which was the residuary Article, must be limited to applications under the Code. That reasoning, it is pointed out, is no longer applicable because of the amendment of the Limitation Act by the introduction of the present Articles 158 and 178. These Articles are in the third division which governs applications but they do not relate to applications under the Code but to one under the Arbitration Act and, therefore, the old reasoning can no longer hold good. It is urged that it was precisely in view of this altered circumstance that in - Asmatali Sharif v. Mujaher Ali. 52 Gal W N 64 a Special Bench of the Calcutta High Court expressed the opinion that an application for pre-emption by a non-notified co-sharer should be governed by Article 181 of the Limitation Act. A perusal of that case, however, will show that the Special Bench did not finally decide that question in that case. In - Hurdutrai Jagdish Prasad v. Official Assignee of Calcutta. 52 Cal W N 343 a Division Bench of the Calcutta High Court consisting of Chief Justice Harries and Mr. Justice Mukherjea who had delivered the judgment of the Special Bench clearly expressed the view that Article 181, Limitation Act. applied only to applications under the Code of Civil Procedure and did not apply to an application under S. 56, Presidency Towns Insolvency Act. Mukherjea J. who also delivered the judgment of the Division Bench explained the observations made by him in the Special Bench case by pointing out that the entire procedure for an application under S. 26 (F) Bengal Tenancy Act, was regulated by Code of Civil Procedure and, therefore, an application for pre-emption was, as it were, an application made under Code of Civil Procedure Subsequently in - Sarvamangala Dasi v, Paritosh Kumar Das G. N. Das J. who was also a member of the Special Bench in the first mentioned case expressed the opinion, while sitting singly, that Article 181 was not confined to applications under the Code. His Lordships attention does not appear to have been drawn to the case of -Hurdutrai Jagdish Prasad (supra). It does not appear to us quite convincing, without further argument, that the mere amendment of Articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in Article 181. This long catena of decisions may well be said to have, as it were, added the words "under the Code" in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and authomatically have the effect of altering the long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need not, however, on this occasion, pursue the matter further, for we are of the opinion that even if Article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that Article is three years from the time "when the right to apply accrues". It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120, Limitation Act. In - O.R.M.O.M.S.P. (Firm) v Nagappa Chettiar, ILR (1941) Mad 175 (PC) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under Art 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that Principle to the present application under Article181. If Art. 181 applies then time began to run after the Company came to know of its right to due. It is not alleged that the Company had any knowledge of the forfeiture between 5/9/1941 when the resolution of forfeiture was passed and 9/9/1941 when the Company became defunct. After the last mentioned date and up to the 16/02/1945 the Company stood dissolved and no knowledge of notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on 16/2/1945. If Article 181 does not apply then the only Article can apply by analogy is Art. 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation. | 1[ds]1. This long catena of decisions may well be said to have, as it were, added the words "under the Code" in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and authomatically have the effect of altering the long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need not, however, on this occasion, pursue the matter further, for we are of the opinion that even if Article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that Article is three years from the time "when the right to apply accrues". It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120, Limitation Act. In - O.R.M.O.M.S.P. (Firm) v Nagappa Chettiar, ILR (1941) Mad 175 (PC) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under Art 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that Principle to the present application under Article181. If Art. 181 applies then time began to run after the Company came to know of its right to due. It is not alleged that the Company had any knowledge of the forfeiture between 5/9/1941 when the resolution of forfeiture was passed and 9/9/1941 when the Company became defunct. After the last mentioned date and up to the 16/02/1945 the Company stood dissolved and no knowledge of notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on 16/2/1945. If Article 181 does not apply then the only Article can apply by analogy is Art. 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation. | 1 | 7,367 | 582 | ### Instruction:
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their Lordships to remedy the defect." Learned advocate for the Mills, however, points out that the reason for holding that Art. 181 was confined to applications under the Code was that the Article should be construed ejusdem generis and that, as all the Articles in the third division of the schedule to the Limitation Act related to applications under the Code, Article 181, which was the residuary Article, must be limited to applications under the Code. That reasoning, it is pointed out, is no longer applicable because of the amendment of the Limitation Act by the introduction of the present Articles 158 and 178. These Articles are in the third division which governs applications but they do not relate to applications under the Code but to one under the Arbitration Act and, therefore, the old reasoning can no longer hold good. It is urged that it was precisely in view of this altered circumstance that in - Asmatali Sharif v. Mujaher Ali. 52 Gal W N 64 a Special Bench of the Calcutta High Court expressed the opinion that an application for pre-emption by a non-notified co-sharer should be governed by Article 181 of the Limitation Act. A perusal of that case, however, will show that the Special Bench did not finally decide that question in that case. In - Hurdutrai Jagdish Prasad v. Official Assignee of Calcutta. 52 Cal W N 343 a Division Bench of the Calcutta High Court consisting of Chief Justice Harries and Mr. Justice Mukherjea who had delivered the judgment of the Special Bench clearly expressed the view that Article 181, Limitation Act. applied only to applications under the Code of Civil Procedure and did not apply to an application under S. 56, Presidency Towns Insolvency Act. Mukherjea J. who also delivered the judgment of the Division Bench explained the observations made by him in the Special Bench case by pointing out that the entire procedure for an application under S. 26 (F) Bengal Tenancy Act, was regulated by Code of Civil Procedure and, therefore, an application for pre-emption was, as it were, an application made under Code of Civil Procedure Subsequently in - Sarvamangala Dasi v, Paritosh Kumar Das G. N. Das J. who was also a member of the Special Bench in the first mentioned case expressed the opinion, while sitting singly, that Article 181 was not confined to applications under the Code. His Lordships attention does not appear to have been drawn to the case of -Hurdutrai Jagdish Prasad (supra). It does not appear to us quite convincing, without further argument, that the mere amendment of Articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in Article 181. This long catena of decisions may well be said to have, as it were, added the words "under the Code" in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and authomatically have the effect of altering the long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need not, however, on this occasion, pursue the matter further, for we are of the opinion that even if Article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that Article is three years from the time "when the right to apply accrues". It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120, Limitation Act. In - O.R.M.O.M.S.P. (Firm) v Nagappa Chettiar, ILR (1941) Mad 175 (PC) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under Art 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that Principle to the present application under Article181. If Art. 181 applies then time began to run after the Company came to know of its right to due. It is not alleged that the Company had any knowledge of the forfeiture between 5/9/1941 when the resolution of forfeiture was passed and 9/9/1941 when the Company became defunct. After the last mentioned date and up to the 16/02/1945 the Company stood dissolved and no knowledge of notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on 16/2/1945. If Article 181 does not apply then the only Article can apply by analogy is Art. 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation.
### Response:
1
### Explanation:
1. This long catena of decisions may well be said to have, as it were, added the words "under the Code" in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and authomatically have the effect of altering the long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need not, however, on this occasion, pursue the matter further, for we are of the opinion that even if Article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that Article is three years from the time "when the right to apply accrues". It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120, Limitation Act. In - O.R.M.O.M.S.P. (Firm) v Nagappa Chettiar, ILR (1941) Mad 175 (PC) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under Art 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that Principle to the present application under Article181. If Art. 181 applies then time began to run after the Company came to know of its right to due. It is not alleged that the Company had any knowledge of the forfeiture between 5/9/1941 when the resolution of forfeiture was passed and 9/9/1941 when the Company became defunct. After the last mentioned date and up to the 16/02/1945 the Company stood dissolved and no knowledge of notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on 16/2/1945. If Article 181 does not apply then the only Article can apply by analogy is Art. 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation.
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Philip John Plasket Thomas Vs. Commissioner Of Income Tax Calcutta | wife or the word husband must not be taken in their primary sense which is clearly indicative of a marital relationship. Nor are we satisfied that the object of the legislature is just the principle of aggregation. We have said earlier that sub-sec. (3) of S. 16 clearly aims at foiling an individuals attempt to avoid or reduce the incidence of tax by transferring his assets to the wife or minor child or admitting his wife as a partner or admitting his minor child to the benefits of partnership, in a firm in which such individual is a partner. This object does not require that the word wife or the word husband should be interpreted in an archaic or secondary sense."11. Learned counsel for the respondent has drawn our attention to certain English decisions, particularly the decision of the House of Lords in Lord Vesteys Executors and Vestey v. Commissioners of Inland Revenue, (1949) 31 Tax Cas 1. One of the questions which was considered in that decision was whether for the purpose of either S. 18 of the Finance Act, 1936 (in England) or S. 38 of the Finance Act, 1938 (in England) "wife" included a "widow". Their Lordships had to consider the earlier decision of the Court of Appeal in Commissioners of Inland Revenue v. Gaunt, (1941) 24 Tax Cas 69 which held that the one word included the other. Their Lordships ultimately held, overruling the decision in Gaunts case, (1941) 24 Tax Cas 69 that the word "wife" did not include a "widow". The English decisions proceeded on the footing that in England it is a principle of Income-tax law, embodied in R. 16 of the General Rules, that for Income-tax purposes husband and wife living together are one. Lord Morton said :"I think that the treatment of husband and wife by the Legislature for Income-tax purposes rests on the view that any income enjoyed by one spouse is a benefit to the other spouse. It is not surprising, therefore, that in the Sections now under consideration a benefit to the wife of the settlor is treated as being a benefit to the settlor, but it seems to me unlikely that this principle is being extended by these Sections to the widow of the settlor."Now, it is quite clear to us that the treatment of husband and wife in the Indian Income-tax Act, 1922 does not rest on the view that any income enjoyed by one spouse is a benefit to the other spouse; for sub-sec. (3) of S. 16 makes it quite clear that all income enjoyed by the wife is not to be included in the income of the husband and only such of the wifes income as comes within the sub-section is to be included in the income of the husband. We therefore think that the English decisions are not in point and there are no reasons why the word wife or the word husband should not be given its true natural meaning.12. This brings us to the second question, namely, whether the transfer of shares made by the assessee in favour of Mrs. Judith Knight on December 10, 1947 was to take effect only from the date of their marriage. It is admitted that on December 10, 1947 the assessee and Mrs. Knight were not married. It is also admitted that they were engaged to be married and the engagement was announced on September 3, 1947. The transfer deed which we have earlier quoted contained no words of postponement. On the contrary, it contained words which indicated that the transfer took effect immediately. Learned counsel for the respondent has rightly pointed out that the expression in the transfer deed "in consideration of my forthcoming marriage" can have very little meaning as a real consideration, because on September 3, 1947 the parties had mutually promised to marry each other; therefore the promise to marry had been made earlier than December 10, 1947. Learned counsel for the respondent has argued before us that the transfer of shares was really a gift made to Mrs. Knight in contemplation of the forthcoming marriage and the gift was subject to a condition subsequent, namely, that of marriage which if not performed would put an end to the gift. This does not however advance the case of the respondent in any way. A gift may be made subject to conditions, either precedent or subsequent. A condition precedent is one to be performed before the gift takes effect; a condition subsequent is one to be performed after the gift had taken effect, and, if the condition is unfulfilled will put an end to the gift. But if the gift had already taken effect on December 10, 1947 and the condition subsequent has been later fulfilled, then the gift is effective as from December 10, 1947 when the assessee and Mrs. Knight were not husband and wife. That being the position, sub-cl. (iii) of S. 16 (3) (a) will not be attracted to the case as the transfer of the share was not made by the husband to his wife.13. We were also addressed on the question as to the circumstances in which a gift to an intended wife or husband may be recovered when the marriage does not take place through the fault of either of the two parties. We do not think that that question falls for decision in the present case. From whatever point of view we look at the transfer of shares in the present case, whether it be in consideration of a promise to marry or be a gift subject to the subsequent condition of marriage, the transfer takes effect immediately and is not postponed to the date of marriage. If that be the true position, as we hold it to be, then sub-cl. (iii) of S. 16(3) (a) is not attracted to those cases, apart altogether from any question as to whether there was adequate consideration for the transfer within the meaning of that sub-clause. | 1[ds]Now, it is quite clear to us that the treatment of husband and wife in the Indian Income-tax Act, 1922 does not rest on the view that any income enjoyed by one spouse is a benefit to the other spouse; for sub-sec. (3) of S. 16 makes it quite clear that all income enjoyed by the wife is not to be included in the income of the husband and only such of the wifes income as comes within the sub-section is to be included in the income of the husband. We therefore think that the English decisions are not in point and there are no reasons why the word wife or the word husband should not be given its true natural meaning.We were also addressed on the question as to the circumstances in which a gift to an intended wife or husband may be recovered when the marriage does not take place through the fault of either of the two parties. We do not think that that question falls for decision in the present case. From whatever point of view we look at the transfer of shares in the present case, whether it be in consideration of a promise to marry or be a gift subject to the subsequent condition of marriage, the transfer takes effect immediately and is not postponed to the date of marriage. If that be the true position, as we hold it to be, then sub-cl. (iii) of S. 16(3) (a) is not attracted to those cases, apart altogether from any question as to whether there was adequate consideration for the transfer within the meaning of that sub-clause. | 1 | 4,740 | 300 | ### Instruction:
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wife or the word husband must not be taken in their primary sense which is clearly indicative of a marital relationship. Nor are we satisfied that the object of the legislature is just the principle of aggregation. We have said earlier that sub-sec. (3) of S. 16 clearly aims at foiling an individuals attempt to avoid or reduce the incidence of tax by transferring his assets to the wife or minor child or admitting his wife as a partner or admitting his minor child to the benefits of partnership, in a firm in which such individual is a partner. This object does not require that the word wife or the word husband should be interpreted in an archaic or secondary sense."11. Learned counsel for the respondent has drawn our attention to certain English decisions, particularly the decision of the House of Lords in Lord Vesteys Executors and Vestey v. Commissioners of Inland Revenue, (1949) 31 Tax Cas 1. One of the questions which was considered in that decision was whether for the purpose of either S. 18 of the Finance Act, 1936 (in England) or S. 38 of the Finance Act, 1938 (in England) "wife" included a "widow". Their Lordships had to consider the earlier decision of the Court of Appeal in Commissioners of Inland Revenue v. Gaunt, (1941) 24 Tax Cas 69 which held that the one word included the other. Their Lordships ultimately held, overruling the decision in Gaunts case, (1941) 24 Tax Cas 69 that the word "wife" did not include a "widow". The English decisions proceeded on the footing that in England it is a principle of Income-tax law, embodied in R. 16 of the General Rules, that for Income-tax purposes husband and wife living together are one. Lord Morton said :"I think that the treatment of husband and wife by the Legislature for Income-tax purposes rests on the view that any income enjoyed by one spouse is a benefit to the other spouse. It is not surprising, therefore, that in the Sections now under consideration a benefit to the wife of the settlor is treated as being a benefit to the settlor, but it seems to me unlikely that this principle is being extended by these Sections to the widow of the settlor."Now, it is quite clear to us that the treatment of husband and wife in the Indian Income-tax Act, 1922 does not rest on the view that any income enjoyed by one spouse is a benefit to the other spouse; for sub-sec. (3) of S. 16 makes it quite clear that all income enjoyed by the wife is not to be included in the income of the husband and only such of the wifes income as comes within the sub-section is to be included in the income of the husband. We therefore think that the English decisions are not in point and there are no reasons why the word wife or the word husband should not be given its true natural meaning.12. This brings us to the second question, namely, whether the transfer of shares made by the assessee in favour of Mrs. Judith Knight on December 10, 1947 was to take effect only from the date of their marriage. It is admitted that on December 10, 1947 the assessee and Mrs. Knight were not married. It is also admitted that they were engaged to be married and the engagement was announced on September 3, 1947. The transfer deed which we have earlier quoted contained no words of postponement. On the contrary, it contained words which indicated that the transfer took effect immediately. Learned counsel for the respondent has rightly pointed out that the expression in the transfer deed "in consideration of my forthcoming marriage" can have very little meaning as a real consideration, because on September 3, 1947 the parties had mutually promised to marry each other; therefore the promise to marry had been made earlier than December 10, 1947. Learned counsel for the respondent has argued before us that the transfer of shares was really a gift made to Mrs. Knight in contemplation of the forthcoming marriage and the gift was subject to a condition subsequent, namely, that of marriage which if not performed would put an end to the gift. This does not however advance the case of the respondent in any way. A gift may be made subject to conditions, either precedent or subsequent. A condition precedent is one to be performed before the gift takes effect; a condition subsequent is one to be performed after the gift had taken effect, and, if the condition is unfulfilled will put an end to the gift. But if the gift had already taken effect on December 10, 1947 and the condition subsequent has been later fulfilled, then the gift is effective as from December 10, 1947 when the assessee and Mrs. Knight were not husband and wife. That being the position, sub-cl. (iii) of S. 16 (3) (a) will not be attracted to the case as the transfer of the share was not made by the husband to his wife.13. We were also addressed on the question as to the circumstances in which a gift to an intended wife or husband may be recovered when the marriage does not take place through the fault of either of the two parties. We do not think that that question falls for decision in the present case. From whatever point of view we look at the transfer of shares in the present case, whether it be in consideration of a promise to marry or be a gift subject to the subsequent condition of marriage, the transfer takes effect immediately and is not postponed to the date of marriage. If that be the true position, as we hold it to be, then sub-cl. (iii) of S. 16(3) (a) is not attracted to those cases, apart altogether from any question as to whether there was adequate consideration for the transfer within the meaning of that sub-clause.
### Response:
1
### Explanation:
Now, it is quite clear to us that the treatment of husband and wife in the Indian Income-tax Act, 1922 does not rest on the view that any income enjoyed by one spouse is a benefit to the other spouse; for sub-sec. (3) of S. 16 makes it quite clear that all income enjoyed by the wife is not to be included in the income of the husband and only such of the wifes income as comes within the sub-section is to be included in the income of the husband. We therefore think that the English decisions are not in point and there are no reasons why the word wife or the word husband should not be given its true natural meaning.We were also addressed on the question as to the circumstances in which a gift to an intended wife or husband may be recovered when the marriage does not take place through the fault of either of the two parties. We do not think that that question falls for decision in the present case. From whatever point of view we look at the transfer of shares in the present case, whether it be in consideration of a promise to marry or be a gift subject to the subsequent condition of marriage, the transfer takes effect immediately and is not postponed to the date of marriage. If that be the true position, as we hold it to be, then sub-cl. (iii) of S. 16(3) (a) is not attracted to those cases, apart altogether from any question as to whether there was adequate consideration for the transfer within the meaning of that sub-clause.
|
M.K. Prasad Vs. P. Arumugam | that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that within such period means the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is a sufficient cause in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words within such period is erroneous. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors., 1972(1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore, 1988(2) SCC 142, this Court observed that the expression sufficient cause in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been acted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 (SC) : 1998(7) SCC 123, this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed : It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court. 8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well. | 1[ds]6. In any case in which a decree is passed, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside thee decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside thee decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting asidee decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the | 1 | 2,050 | 401 | ### 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:
that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that within such period means the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is a sufficient cause in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words within such period is erroneous. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors., 1972(1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore, 1988(2) SCC 142, this Court observed that the expression sufficient cause in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been acted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 (SC) : 1998(7) SCC 123, this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed : It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court. 8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well.
### Response:
1
### Explanation:
6. In any case in which a decree is passed, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside thee decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside thee decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting asidee decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the
|
C.B.I Vs. M/s. Blue Sky TIE-Up Pvt. Ltd. & Others | Section 56(1) of the FERA Act, 1973, namely, those under Section 13; clause (a) of sub-section (1) of Section 18; Section 18-A; clause (a) of sub-section (1) of Section 19; sub-section (2) of Section 44, for which the minimum sentence of six months imprisonment is prescribed, are serious offences and if committed would have serious financial consequences affecting the economy of the country. All those offences could be committed by company or corporate bodies. We do not think that the legislative intent is not to prosecute the companies for these serious offences, if these offences involve the amount or value of more than Rs one lakh, and that they could be prosecuted only when the offences involve an amount or value less than Rs one lakh.As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person. Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy." In his concurring opinion, D.M.Dharmadhikari,J. observed as under: "The argument advanced on behalf of the company and corporate bodies that as the minimum prescribed punishment of imprisonment cannot be imposed on juristic person like company or corporation, Section 56 of the Act cannot be invoked against the company or corporation cannot be accepted. It is to be noted that there are other provisions in the Act, where on conviction of companies or corporations, adverse consequences flow against the offending companies and corporations such as under Section 69 of blacklisting them and under Section 50 penalising them. The prosecution of the companies and corporations under Section 56 of the Act and imposing on them the punishment of fine which is possible to be imposed, therefore, is not ruled out. Section 56 of the Act provides for imposition of minimum prescribed sentence of imprisonment wherever possible and also fine. Such a construction of the provisions of Section 56 of the Act to make it workable cannot be said to be a construction impermissible only because the statute under construction is a penal statute. Section 56 cannot be so construed as to make it ineffective against companies and corporations. Merely because there is no specific mention in the section that in the event of breach committed by the companies and corporations, the punishment can only be in the nature of fine is no ground to read into the provision a fatal lacuna. The provision which is clearly applicable equally to natural and juristic persons, if construed reasonably in the manner indicated above, would be found workable and capable of fulfilling the object of the Act." Arun Kumar,J. also agreed with K.G.Balakrishnan,J. and D.M.Dharmadhikari,J. and observed: "By a purely technical process of reasoning corporations should not be allowed to go scot-free. There are several statutes making corporations liable for conviction which prescribe punishment by way of imprisonment as well as fine. An interpretation as suggested on behalf of the appellant will result in corporations escaping liability in all cases. Here we may point out that Section 48-A of the Monopolies and Restrictive Trade Practices Act, 1969 specifically makes corporations liable for prosecution while at the same time providing that in case of conviction they will be liable to imprisonment and also fine. In the face of this specific provision will corporations be allowed to escape liability on same reasoning as is being advanced here on behalf of the appellants? In my view allowing corporations to escape prosecution for offences under Section 56 FERA for the only reason that corporations cannot be punished with imprisonment even though the punishment by way of fine which is also prescribed under the section can be levied on them, will be defeating the statutory mandate regarding bringing to book offenders under FERA." B.N.Srikrishna, J. wrote dissenting opinion on his own behalf and on behalf of Santosh Hegde, J. and opined that the view taken by the majority of the Court in Assistant Commissioner v. Velliappa Textiles Ltd. (2003) 11 SCC 405 that the company cannot be prosecuted for offences which require imposition of a mandatory term of imprisonment coupled with fine and in such a case the Court cannot impose only a fine is correct.6. Since, the majority of the Constitution Bench ruled in Standard Chartered Bank & Ors. v. Directorate of Enforcement & Ors. (supra) that the company can be prosecuted even in a case where the Court can impose substantive sentence as also fine, and in such case only fine can be imposed on the corporate body, the contrary view taken by the learned Single Judge cannot be approved. We also find that for majority of offences with which respondent No.1 has been charged, the Court has the discretion to impose fine. Therefore, quashing of proceedings against respondent No.1 cannot be sustained. 7. In the result, | 1[ds]In that case, K.G.Balakrishnan,J. (as he then was) referred to some of the judicial precedents on the subject and expressed his views in the followingthe company cannot be sentenced to imprisonment, the court has to resort to punishment of imposition of fine which is also a prescribed punishment. As per the scheme of various enactments and also the Indian Penal Code, mandatory custodial sentence is prescribed for graver offences. If the appellants plea is accepted, no company or corporate bodies could be prosecuted for the graver offences whereas they could be prosecuted for minor offences as the sentence prescribed therein is custodial sentence or fine. We do not think that the intention of the legislature is to give complete immunity from prosecution to the corporate bodies for these grave offences. The offences mentioned under Section 56(1) of the FERA Act, 1973, namely, those under Section 13; clause (a) of sub-section (1) of Section 18; Section 18-A; clause (a) of sub-section (1) of Section 19; sub-section (2) of Section 44, for which the minimum sentence of six months imprisonment is prescribed, are serious offences and if committed would have serious financial consequences affecting the economy of the country. All those offences could be committed by company or corporate bodies. We do not think that the legislative intent is not to prosecute the companies for these serious offences, if these offences involve the amount or value of more than Rs one lakh, and that they could be prosecuted only when the offences involve an amount or value less than Rs one lakh.As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person. Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stablehis concurring opinion, D.M.Dharmadhikari,J. observed asargument advanced on behalf of the company and corporate bodies that as the minimum prescribed punishment of imprisonment cannot be imposed on juristic person like company or corporation, Section 56 of the Act cannot be invoked against the company or corporation cannot be accepted. It is to be noted that there are other provisions in the Act, where on conviction of companies or corporations, adverse consequences flow against the offending companies and corporations such as under Section 69 of blacklisting them and under Section 50 penalising them. The prosecution of the companies and corporations under Section 56 of the Act and imposing on them the punishment of fine which is possible to be imposed, therefore, is not ruled out. Section 56 of the Act provides for imposition of minimum prescribed sentence of imprisonment wherever possible and also fine. Such a construction of the provisions of Section 56 of the Act to make it workable cannot be said to be a construction impermissible only because the statute under construction is a penal statute. Section 56 cannot be so construed as to make it ineffective against companies and corporations. Merely because there is no specific mention in the section that in the event of breach committed by the companies and corporations, the punishment can only be in the nature of fine is no ground to read into the provision a fatal lacuna. The provision which is clearly applicable equally to natural and juristic persons, if construed reasonably in the manner indicated above, would be found workable and capable of fulfilling the object of theKumar,J. also agreed with K.G.Balakrishnan,J. and D.M.Dharmadhikari,J. anda purely technical process of reasoning corporations should not be allowed to go scot-free. There are several statutes making corporations liable for conviction which prescribe punishment by way of imprisonment as well as fine. An interpretation as suggested on behalf of the appellant will result in corporations escaping liability in all cases. Here we may point out that Section 48-A of the Monopolies and Restrictive Trade Practices Act, 1969 specifically makes corporations liable for prosecution while at the same time providing that in case of conviction they will be liable to imprisonment and also fine. In the face of this specific provision will corporations be allowed to escape liability on same reasoning as is being advanced here on behalf of the appellants? In my view allowing corporations to escape prosecution for offences under Section 56 FERA for the only reason that corporations cannot be punished with imprisonment even though the punishment by way of fine which is also prescribed under the section can be levied on them, will be defeating the statutory mandate regarding bringing to book offenders underJ. wrote dissenting opinion on his own behalf and on behalf of Santosh Hegde, J. and opined that the view taken by the majority of the Court in Assistant Commissioner v. Velliappa Textiles Ltd. (2003) 11 SCC 405 that the company cannot be prosecuted for offences which require imposition of a mandatory term of imprisonment coupled with fine and in such a case the Court cannot impose only a fine is correct.6. Since, the majority of the Constitution Bench ruled in Standard Chartered Bank & Ors. v. Directorate of Enforcement & Ors. (supra) that the company can be prosecuted even in a case where the Court can impose substantive sentence as also fine, and in such case only fine can be imposed on the corporate body, the contrary view taken by the learned Single Judge cannot be approved. | 1 | 1,660 | 1,202 | ### 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:
Section 56(1) of the FERA Act, 1973, namely, those under Section 13; clause (a) of sub-section (1) of Section 18; Section 18-A; clause (a) of sub-section (1) of Section 19; sub-section (2) of Section 44, for which the minimum sentence of six months imprisonment is prescribed, are serious offences and if committed would have serious financial consequences affecting the economy of the country. All those offences could be committed by company or corporate bodies. We do not think that the legislative intent is not to prosecute the companies for these serious offences, if these offences involve the amount or value of more than Rs one lakh, and that they could be prosecuted only when the offences involve an amount or value less than Rs one lakh.As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person. Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy." In his concurring opinion, D.M.Dharmadhikari,J. observed as under: "The argument advanced on behalf of the company and corporate bodies that as the minimum prescribed punishment of imprisonment cannot be imposed on juristic person like company or corporation, Section 56 of the Act cannot be invoked against the company or corporation cannot be accepted. It is to be noted that there are other provisions in the Act, where on conviction of companies or corporations, adverse consequences flow against the offending companies and corporations such as under Section 69 of blacklisting them and under Section 50 penalising them. The prosecution of the companies and corporations under Section 56 of the Act and imposing on them the punishment of fine which is possible to be imposed, therefore, is not ruled out. Section 56 of the Act provides for imposition of minimum prescribed sentence of imprisonment wherever possible and also fine. Such a construction of the provisions of Section 56 of the Act to make it workable cannot be said to be a construction impermissible only because the statute under construction is a penal statute. Section 56 cannot be so construed as to make it ineffective against companies and corporations. Merely because there is no specific mention in the section that in the event of breach committed by the companies and corporations, the punishment can only be in the nature of fine is no ground to read into the provision a fatal lacuna. The provision which is clearly applicable equally to natural and juristic persons, if construed reasonably in the manner indicated above, would be found workable and capable of fulfilling the object of the Act." Arun Kumar,J. also agreed with K.G.Balakrishnan,J. and D.M.Dharmadhikari,J. and observed: "By a purely technical process of reasoning corporations should not be allowed to go scot-free. There are several statutes making corporations liable for conviction which prescribe punishment by way of imprisonment as well as fine. An interpretation as suggested on behalf of the appellant will result in corporations escaping liability in all cases. Here we may point out that Section 48-A of the Monopolies and Restrictive Trade Practices Act, 1969 specifically makes corporations liable for prosecution while at the same time providing that in case of conviction they will be liable to imprisonment and also fine. In the face of this specific provision will corporations be allowed to escape liability on same reasoning as is being advanced here on behalf of the appellants? In my view allowing corporations to escape prosecution for offences under Section 56 FERA for the only reason that corporations cannot be punished with imprisonment even though the punishment by way of fine which is also prescribed under the section can be levied on them, will be defeating the statutory mandate regarding bringing to book offenders under FERA." B.N.Srikrishna, J. wrote dissenting opinion on his own behalf and on behalf of Santosh Hegde, J. and opined that the view taken by the majority of the Court in Assistant Commissioner v. Velliappa Textiles Ltd. (2003) 11 SCC 405 that the company cannot be prosecuted for offences which require imposition of a mandatory term of imprisonment coupled with fine and in such a case the Court cannot impose only a fine is correct.6. Since, the majority of the Constitution Bench ruled in Standard Chartered Bank & Ors. v. Directorate of Enforcement & Ors. (supra) that the company can be prosecuted even in a case where the Court can impose substantive sentence as also fine, and in such case only fine can be imposed on the corporate body, the contrary view taken by the learned Single Judge cannot be approved. We also find that for majority of offences with which respondent No.1 has been charged, the Court has the discretion to impose fine. Therefore, quashing of proceedings against respondent No.1 cannot be sustained. 7. In the result,
### Response:
1
### Explanation:
for the graver offences whereas they could be prosecuted for minor offences as the sentence prescribed therein is custodial sentence or fine. We do not think that the intention of the legislature is to give complete immunity from prosecution to the corporate bodies for these grave offences. The offences mentioned under Section 56(1) of the FERA Act, 1973, namely, those under Section 13; clause (a) of sub-section (1) of Section 18; Section 18-A; clause (a) of sub-section (1) of Section 19; sub-section (2) of Section 44, for which the minimum sentence of six months imprisonment is prescribed, are serious offences and if committed would have serious financial consequences affecting the economy of the country. All those offences could be committed by company or corporate bodies. We do not think that the legislative intent is not to prosecute the companies for these serious offences, if these offences involve the amount or value of more than Rs one lakh, and that they could be prosecuted only when the offences involve an amount or value less than Rs one lakh.As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person. Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stablehis concurring opinion, D.M.Dharmadhikari,J. observed asargument advanced on behalf of the company and corporate bodies that as the minimum prescribed punishment of imprisonment cannot be imposed on juristic person like company or corporation, Section 56 of the Act cannot be invoked against the company or corporation cannot be accepted. It is to be noted that there are other provisions in the Act, where on conviction of companies or corporations, adverse consequences flow against the offending companies and corporations such as under Section 69 of blacklisting them and under Section 50 penalising them. The prosecution of the companies and corporations under Section 56 of the Act and imposing on them the punishment of fine which is possible to be imposed, therefore, is not ruled out. Section 56 of the Act provides for imposition of minimum prescribed sentence of imprisonment wherever possible and also fine. Such a construction of the provisions of Section 56 of the Act to make it workable cannot be said to be a construction impermissible only because the statute under construction is a penal statute. Section 56 cannot be so construed as to make it ineffective against companies and corporations. Merely because there is no specific mention in the section that in the event of breach committed by the companies and corporations, the punishment can only be in the nature of fine is no ground to read into the provision a fatal lacuna. The provision which is clearly applicable equally to natural and juristic persons, if construed reasonably in the manner indicated above, would be found workable and capable of fulfilling the object of theKumar,J. also agreed with K.G.Balakrishnan,J. and D.M.Dharmadhikari,J. anda purely technical process of reasoning corporations should not be allowed to go scot-free. There are several statutes making corporations liable for conviction which prescribe punishment by way of imprisonment as well as fine. An interpretation as suggested on behalf of the appellant will result in corporations escaping liability in all cases. Here we may point out that Section 48-A of the Monopolies and Restrictive Trade Practices Act, 1969 specifically makes corporations liable for prosecution while at the same time providing that in case of conviction they will be liable to imprisonment and also fine. In the face of this specific provision will corporations be allowed to escape liability on same reasoning as is being advanced here on behalf of the appellants? In my view allowing corporations to escape prosecution for offences under Section 56 FERA for the only reason that corporations cannot be punished with imprisonment even though the punishment by way of fine which is also prescribed under the section can be levied on them, will be defeating the statutory mandate regarding bringing to book offenders underJ. wrote dissenting opinion on his own behalf and on behalf of Santosh Hegde, J. and opined that the view taken by the majority of the Court in Assistant Commissioner v. Velliappa Textiles Ltd. (2003) 11 SCC 405 that the company cannot be prosecuted for offences which require imposition of a mandatory term of imprisonment coupled with fine and in such a case the Court cannot impose only a fine is correct.6. Since, the majority of the Constitution Bench ruled in Standard Chartered Bank & Ors. v. Directorate of Enforcement & Ors. (supra) that the company can be prosecuted even in a case where the Court can impose substantive sentence as also fine, and in such case only fine can be imposed on the corporate body, the contrary view taken by the learned Single Judge cannot be approved.
|
ICICI Lombard General Insurance Co. Ltd Vs. Ajay Kumar Mohanty | the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs. 1,45,231/-. However, the Tribunal has thereafter noted that the average income comes to Rs. 2,62,372/-. Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/- on the basis of the testimony of the claimant that he was earning Rs. 18,500/- per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs. 1,45,231/-, it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/- per year.8. In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.9. In Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd, this Court held thus:"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victims inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."In Govind Yadav v. New India Insurance Company Limited, this Court after referring to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd. Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, Reshma Kumari v. Madam Mohan, Arvind Kumar Mishra v. New India Assurance Co. Ltd., Raj Kumar v. Ajay Kumar, held thus:"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." (Id at page 693)These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v. MD Tamil Nadu State Transport Corporation, 10. In the present case, the evidence of PW2 Dr Umakanta Jena indicates that he had initially, before issuing the disability certificate, examined the shoulder joint, elbow joint and left femur as per the discharge certificate. The discharge certificate indicated that the injuries sustained were grievous in nature. The Doctor initially placed a tick mark over the word `permanent. However, subsequently he made an interpolation by cutting the word `permanent and "not likely to improve". The evidence of the Doctor is reproduced below, insofar as it is material:"4) The disability is temporary but not permanent. The disability is likely to improve. The disability certificate is the original one. By mistake, I gave a tick mark on the word "permanent". Per day about one hundred disability certificates are issued. So, I committed this wrong. I have not mentioned which documents I verified prior to issuance of this disability certificate. There is nothing in the certificate to show that there was nailing. Particularly in this case, the disability may improve. Any fracture of extremity will cause disability. I cannot give any authority to the opinion of my above sentence.5) It is not a fact that the percentage of disability has been made by me being gained over by the injured and that there was no disability. It is not a fact that being gained over by the injured I gave this disability certificate.TO COURT:-Q. No. 1:- Whether the certificate issued by you is creating confusion?Ans; Yes.Q. No. 2: Whether you will be paid T.A. and D.A. from State Exchequer for your mistake?Ans:, No, I should be paid.Q. No. 3:- Whether my attendance in the court is a govt. duty or C.L.?Ans: For my mistake I should take C.L.Q. No. 4:- Can you explain why you interpolated the certificate which was signed by 4 doctors including CDMO, Bhadrak?Ans: I cannot explain.Q. No. 5:- Was not it desirable to obtain the consent of other three doctors before cutting and putting tick mark and making interpolation on an already prepared public document?Ans: I should have obtained the consent and signature of all other signatories before interpolating the document."11. The doctor has admitted to having made an interpolation in the disability certificate. The above evidence indicates that the disability is temporary and not permanent. The Doctor admitted that the disability certificate indicated a tick mark on the word `permanent by mistake. He further stated that the disability in the present case was likely to improve.12. Having regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an amount of Rs. 2,09,622/- towards medical expenses. We accept the figure of an annual loss of income of Rs. 79,877/-. The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering. | 1[ds], there has been no application of mind by the High Court to the evidence on the record and to the relevant facts and circumstances. The above extract cannot be regarded as the expression of a reasoned view. Ordinarily, we would have remitted the case back to the High Court for a fresh determination. However, we are inclined not to do so in order to prevent a miscarriage of justice which delay in itself is likely to occasion. The accident took place on 25 April 2009 when the appellant was 32 years of age. The judgment of the Tribunal was rendered on 26 February 2014. The High Court delivered its judgment on 15 April 2015. Leave was granted by this Court on 25 February 2016. Hence, we have heard the learned counsel appearing on behalf of the contesting parties on merits and proceed to resolve the dispute so as to render finality to the case.On perusing the order of the Tribunal, we find merit in the contention of the insurer that while calculating the income in paragraph 10 of its order, the Tribunal has committed an error of computation. The Tribunal has on the basis of the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs.However, the Tribunal has thereafter noted that the average income comes to Rs.Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/on the basis of the testimony of the claimant that he was earning Rs. 18,500/per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs.it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/per year.8. In arriving at the quantification of compensation, we must be guided by theprinciple that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the personHaving regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs.The Tribunal has awarded an amount of Rs. 2,09,622/towards medical expenses. We accept the figure of an annual loss of income of Rs.The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering. | 1 | 2,234 | 518 | ### 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 income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs. 1,45,231/-. However, the Tribunal has thereafter noted that the average income comes to Rs. 2,62,372/-. Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/- on the basis of the testimony of the claimant that he was earning Rs. 18,500/- per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs. 1,45,231/-, it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/- per year.8. In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.9. In Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd, this Court held thus:"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victims inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."In Govind Yadav v. New India Insurance Company Limited, this Court after referring to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd. Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, Reshma Kumari v. Madam Mohan, Arvind Kumar Mishra v. New India Assurance Co. Ltd., Raj Kumar v. Ajay Kumar, held thus:"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." (Id at page 693)These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v. MD Tamil Nadu State Transport Corporation, 10. In the present case, the evidence of PW2 Dr Umakanta Jena indicates that he had initially, before issuing the disability certificate, examined the shoulder joint, elbow joint and left femur as per the discharge certificate. The discharge certificate indicated that the injuries sustained were grievous in nature. The Doctor initially placed a tick mark over the word `permanent. However, subsequently he made an interpolation by cutting the word `permanent and "not likely to improve". The evidence of the Doctor is reproduced below, insofar as it is material:"4) The disability is temporary but not permanent. The disability is likely to improve. The disability certificate is the original one. By mistake, I gave a tick mark on the word "permanent". Per day about one hundred disability certificates are issued. So, I committed this wrong. I have not mentioned which documents I verified prior to issuance of this disability certificate. There is nothing in the certificate to show that there was nailing. Particularly in this case, the disability may improve. Any fracture of extremity will cause disability. I cannot give any authority to the opinion of my above sentence.5) It is not a fact that the percentage of disability has been made by me being gained over by the injured and that there was no disability. It is not a fact that being gained over by the injured I gave this disability certificate.TO COURT:-Q. No. 1:- Whether the certificate issued by you is creating confusion?Ans; Yes.Q. No. 2: Whether you will be paid T.A. and D.A. from State Exchequer for your mistake?Ans:, No, I should be paid.Q. No. 3:- Whether my attendance in the court is a govt. duty or C.L.?Ans: For my mistake I should take C.L.Q. No. 4:- Can you explain why you interpolated the certificate which was signed by 4 doctors including CDMO, Bhadrak?Ans: I cannot explain.Q. No. 5:- Was not it desirable to obtain the consent of other three doctors before cutting and putting tick mark and making interpolation on an already prepared public document?Ans: I should have obtained the consent and signature of all other signatories before interpolating the document."11. The doctor has admitted to having made an interpolation in the disability certificate. The above evidence indicates that the disability is temporary and not permanent. The Doctor admitted that the disability certificate indicated a tick mark on the word `permanent by mistake. He further stated that the disability in the present case was likely to improve.12. Having regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an amount of Rs. 2,09,622/- towards medical expenses. We accept the figure of an annual loss of income of Rs. 79,877/-. The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering.
### Response:
1
### Explanation:
, there has been no application of mind by the High Court to the evidence on the record and to the relevant facts and circumstances. The above extract cannot be regarded as the expression of a reasoned view. Ordinarily, we would have remitted the case back to the High Court for a fresh determination. However, we are inclined not to do so in order to prevent a miscarriage of justice which delay in itself is likely to occasion. The accident took place on 25 April 2009 when the appellant was 32 years of age. The judgment of the Tribunal was rendered on 26 February 2014. The High Court delivered its judgment on 15 April 2015. Leave was granted by this Court on 25 February 2016. Hence, we have heard the learned counsel appearing on behalf of the contesting parties on merits and proceed to resolve the dispute so as to render finality to the case.On perusing the order of the Tribunal, we find merit in the contention of the insurer that while calculating the income in paragraph 10 of its order, the Tribunal has committed an error of computation. The Tribunal has on the basis of the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs.However, the Tribunal has thereafter noted that the average income comes to Rs.Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/on the basis of the testimony of the claimant that he was earning Rs. 18,500/per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs.it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/per year.8. In arriving at the quantification of compensation, we must be guided by theprinciple that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the personHaving regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs.The Tribunal has awarded an amount of Rs. 2,09,622/towards medical expenses. We accept the figure of an annual loss of income of Rs.The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering.
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Bhagwan Trimbak Ahirrao & Others Vs. State of Maharashtra | was sent to the main office. It is signed by G.B. Mane. D.W. 1 has identified the signature of Mr. Mane. According to D.W. 1 the drivers working on the vehicles of the company are identified by numbers which are treated as code numbers. Before the name of accused Somnath truck number as 5102 is mentioned. In the cross-examination the prosecution has not been able to shatter the defence witness. Instead this witness has stated in the cross-examination that if the code number referred in front of the name of the drivers is tallied with office record, full name of the same person can be traced out. That the truck on which Somnath was appointed as a driver, S.C. Patil was appointed as assistant driver as well as cleaner.15. D.W.2 Amjad Shaikh is running motor garage under the name and style "Genuine Car Services" at Wadala Road Nashik. According to him, he was acquainted with the accused Balaji since 3 to 4 years prior to the incident. On 23/3/2005 Balaji visited his garage with vehicle of Mr. Kailash Jejurkar which he was running. He has deposed that on 22/3/2005 accused Balaji remained at garrage overnight and stayed in the vehicle because the vehicle had reached his garrage in late hours and therefore, he was not able to attend repairs of that vehicle. According to him, on the next day i.e. on 23/3/2005 he had opened the car for repairs. The repair work was going on for about 3 hours. Mr. Kailash Jejurkar had visited the garrage at about 12.30 p.m. and thereafter D.W.2, Balaji and Kailash had gone to the market to purchase spare parts. They returned to garrage at about 2.30 p.m. The work of repairs was in progress upto 6.30 p.m. He had then taken the vehicle for wheel alignment and returned to the garrage at about 7.30 p.m. and he then handed over delivery of the vehicle to accused Balaji. The witness has not been shattered in cross-examination. He has produced the bill at Exh. 83. He has denied the suggestion that such bill was prepared at the instance of the accused. The Apex Court in the case of Dudhnath Pandey v/s. State of Uttar Pradesh reported in AIR 1981 SC 911 has held that"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."In the present case, both the defence witnesses have tendered documentary evidence to substantiate that the accused No.3 and accused No.5 were in the company of D.W. 1 and 2 respectively at the time when the incident had occurred. Falsity of defence cannot take place of proof of facts which the prosecution has to establish. A false explanation could at the most be an additional circumstance if other circumstances unerringly point towards the guilt of the accused. In the present case, the prosecution has failed to establish that accused Nos.3 and 5 were physically present in the close proximate distance of the scene of offence i.e. their residential house.16. D.W.3 Damodar Nimkar is examined by the other accused. D.W. 3 is P.I. at Kalvan. Paternal uncle of Pushpa namely Dadaji Shevale had lodged a report on 22/11/2004 alleging therein that some anonymous calls were made to his daughter Gayatri and they suspected that deceased Pushpa was responsible for the same and hence, Pushpa was called for interrogation. Being fed up of the same, she has committed suicide in the house. The said defence would not appeal to any prudent man and therefore, it deserves to be discarded. The defence taken by one accused cannot be treated as evidence against the co-accused as the statement made by one accused is of no value against his co-accused nor can it be used to fill in the gap in the case of prosecution.17. From the above discussion, it is clear that-(i) On the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons. | 1[ds]17. From the above discussion, it is clearOn the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons. | 1 | 3,733 | 399 | ### 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:
was sent to the main office. It is signed by G.B. Mane. D.W. 1 has identified the signature of Mr. Mane. According to D.W. 1 the drivers working on the vehicles of the company are identified by numbers which are treated as code numbers. Before the name of accused Somnath truck number as 5102 is mentioned. In the cross-examination the prosecution has not been able to shatter the defence witness. Instead this witness has stated in the cross-examination that if the code number referred in front of the name of the drivers is tallied with office record, full name of the same person can be traced out. That the truck on which Somnath was appointed as a driver, S.C. Patil was appointed as assistant driver as well as cleaner.15. D.W.2 Amjad Shaikh is running motor garage under the name and style "Genuine Car Services" at Wadala Road Nashik. According to him, he was acquainted with the accused Balaji since 3 to 4 years prior to the incident. On 23/3/2005 Balaji visited his garage with vehicle of Mr. Kailash Jejurkar which he was running. He has deposed that on 22/3/2005 accused Balaji remained at garrage overnight and stayed in the vehicle because the vehicle had reached his garrage in late hours and therefore, he was not able to attend repairs of that vehicle. According to him, on the next day i.e. on 23/3/2005 he had opened the car for repairs. The repair work was going on for about 3 hours. Mr. Kailash Jejurkar had visited the garrage at about 12.30 p.m. and thereafter D.W.2, Balaji and Kailash had gone to the market to purchase spare parts. They returned to garrage at about 2.30 p.m. The work of repairs was in progress upto 6.30 p.m. He had then taken the vehicle for wheel alignment and returned to the garrage at about 7.30 p.m. and he then handed over delivery of the vehicle to accused Balaji. The witness has not been shattered in cross-examination. He has produced the bill at Exh. 83. He has denied the suggestion that such bill was prepared at the instance of the accused. The Apex Court in the case of Dudhnath Pandey v/s. State of Uttar Pradesh reported in AIR 1981 SC 911 has held that"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."In the present case, both the defence witnesses have tendered documentary evidence to substantiate that the accused No.3 and accused No.5 were in the company of D.W. 1 and 2 respectively at the time when the incident had occurred. Falsity of defence cannot take place of proof of facts which the prosecution has to establish. A false explanation could at the most be an additional circumstance if other circumstances unerringly point towards the guilt of the accused. In the present case, the prosecution has failed to establish that accused Nos.3 and 5 were physically present in the close proximate distance of the scene of offence i.e. their residential house.16. D.W.3 Damodar Nimkar is examined by the other accused. D.W. 3 is P.I. at Kalvan. Paternal uncle of Pushpa namely Dadaji Shevale had lodged a report on 22/11/2004 alleging therein that some anonymous calls were made to his daughter Gayatri and they suspected that deceased Pushpa was responsible for the same and hence, Pushpa was called for interrogation. Being fed up of the same, she has committed suicide in the house. The said defence would not appeal to any prudent man and therefore, it deserves to be discarded. The defence taken by one accused cannot be treated as evidence against the co-accused as the statement made by one accused is of no value against his co-accused nor can it be used to fill in the gap in the case of prosecution.17. From the above discussion, it is clear that-(i) On the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.
### Response:
1
### Explanation:
17. From the above discussion, it is clearOn the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.
|
Parmeshwari Vs. Amir Chand | of Rs.1,36,547/- along with 9% interest. 4. The contention of the owner of the scooter, before the High Court, was that the accident and his involvement in it was not proved and the claim petition should have been dismissed. The High Court ultimately upheld the appeal of the owner and set aside the findings of the Tribunal. 5. The material facts are that on 22.01.2003 at about 12.00 noon the appellant herein, the claimant before the Tribunal, respondent No.1 before the High Court, was going from Baganwala to Tosham on a Motor Cycle (No.HR 16C-8379), driven by Balwan with the claimant on the pillion seat. When the Motor Cycle was half a kilometer away from Baganwala, Suresh - respondent No.2 herein, came from the other direction in another scooter (No.HR 20-5793) from the wrong side and hit the right leg of the appellant as a result of which she fell down and her right leg was fractured and she received multiple injuries. The accident was witnessed by certain persons and one of them, Umed Singh, took the appellant to Dr. Punias clinic from where she was referred to Chawla Nursing Home, Hisar, where she remained admitted till 6.2.2003. The matter was also reported to SSP, Hisar. Ultimately, the claim petition was filed by her on account of her serious injuries.6. The Tribunal in its judgment considered the evidence of PW.1-Umed Singh as also the evidence of Dr. Parveen Chawla-PW.2, Dr. R.S. Dalal as PW.5 apart from examining the appellant-PW.4 and also one Satbir Singh as PW.3. It has come on evidence of PW.2-Dr. Parveen Chawla that on 22.1.2003 the appellant was admitted with diagnosis of fracture of tibia. Plating and bone grafting was done by P.W.2-Dr. Parveen Chawla and the appellant was discharged on 6.2.2003. The discharge card was also proved. PW.3-Satbir Singh deposed that the appellant moved a complaint in the office of SSP Hisar on 11.3.2003 and the same was sent in original on 2.4.2003 by SSP Hisar to SSP Hanumangarh. PW.5-Dr. R.S. Dalal also deposed that the appellant was examined on 17.12.2003 by a Medical Board comprising of Civil Surgeon Dr. O.P. Phogat, Orthopedic Surgeon Dr. T.S. Bagri and Dr. Dayal himself and on examination the appellant was found to have 32% permanent disability. In view of combined fracture of both bones of her right leg, her leg was shortened by two inch. The disability certificate was also proved.7. The Tribunal also considered the evidence of RW.1-Amit Chand and RW2-Suresh Kumar. Apart from the aforesaid evidence, the Tribunal also considered the detailed account of the accident given by the appellant as PW.4.8. This Court finds that on consideration of the aforesaid materials on record, the Tribunal granted compensation to the appellant to the extent of Rs.1,36,547/- with interest at 9% per annum from the date of filing of the petition till its realization. 9. This Court finds that the compensation is certainly not an excessive one. Rather the computation has been made modestly. 10. Unfortunately, this Court finds that the said well considered decision of the Tribunal was set aside by the High Court, inter alia, on the ground that even though complaint was forwarded to SSP Hisar and was further forwarded to SSP Hanumangarh but no from the office of SSP, Hanumangarh came to prove the complaint. The filing of the complaint by the appellant is not disputed as it appears from the evidence of PW.3-Satbir Singh, who is the Assistant Complaint Clerk in the office of Superintendent of Police, Hisar. If the filing of the complaint is not disputed, the decision of the Tribunal cannot be reversed on the ground that nobody came from the office of SSP to prove the complaint. The official procedure in matters of proceeding with the complaint is not within the control of the appellant, who is an ordinary village woman. She is not coming from the upper echelon of society. The general apathy of the administration in dealing with complaints lodged by ordinary citizens is far too well known to be overlooked by High Court. In this regard the perception of the High Court in disbelieving the complaint betrays a lack of sensitized approach to the plight of a victim in a motor accident claim case. 11. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh-PW.1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the Doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. 12. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim. The other so-called reason in the High Courts order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] are very pertinent. "In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied." | 1[ds]9. This Court finds that the compensation is certainly not an excessive one. Rather the computation has been made modestly.10. Unfortunately, this Court finds that the said well considered decision of the Tribunal was set aside by the High Court, inter alia, on the ground that even though complaint was forwarded to SSP Hisar and was further forwarded to SSP Hanumangarh but no from the office of SSP, Hanumangarh came to prove the complaint. The filing of the complaint by the appellant is not disputed as it appears from the evidence of PW.3-Satbir Singh, who is the Assistant Complaint Clerk in the office of Superintendent of Police, Hisar. If the filing of the complaint is not disputed, the decision of the Tribunal cannot be reversed on the ground that nobody came from the office of SSP to prove the complaint. The official procedure in matters of proceeding with the complaint is not within the control of the appellant, who is an ordinary village woman. She is not coming from the upper echelon of society. The general apathy of the administration in dealing with complaints lodged by ordinary citizens is far too well known to be overlooked by High Court. In this regard the perception of the High Court in disbelieving the complaint betrays a lack of sensitized approach to the plight of a victim in a motor accident claim case.11. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh-PW.1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the Doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself.12. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim. The other so-called reason in the High Courts order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] are very pertinent."In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied." | 1 | 1,203 | 572 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of Rs.1,36,547/- along with 9% interest. 4. The contention of the owner of the scooter, before the High Court, was that the accident and his involvement in it was not proved and the claim petition should have been dismissed. The High Court ultimately upheld the appeal of the owner and set aside the findings of the Tribunal. 5. The material facts are that on 22.01.2003 at about 12.00 noon the appellant herein, the claimant before the Tribunal, respondent No.1 before the High Court, was going from Baganwala to Tosham on a Motor Cycle (No.HR 16C-8379), driven by Balwan with the claimant on the pillion seat. When the Motor Cycle was half a kilometer away from Baganwala, Suresh - respondent No.2 herein, came from the other direction in another scooter (No.HR 20-5793) from the wrong side and hit the right leg of the appellant as a result of which she fell down and her right leg was fractured and she received multiple injuries. The accident was witnessed by certain persons and one of them, Umed Singh, took the appellant to Dr. Punias clinic from where she was referred to Chawla Nursing Home, Hisar, where she remained admitted till 6.2.2003. The matter was also reported to SSP, Hisar. Ultimately, the claim petition was filed by her on account of her serious injuries.6. The Tribunal in its judgment considered the evidence of PW.1-Umed Singh as also the evidence of Dr. Parveen Chawla-PW.2, Dr. R.S. Dalal as PW.5 apart from examining the appellant-PW.4 and also one Satbir Singh as PW.3. It has come on evidence of PW.2-Dr. Parveen Chawla that on 22.1.2003 the appellant was admitted with diagnosis of fracture of tibia. Plating and bone grafting was done by P.W.2-Dr. Parveen Chawla and the appellant was discharged on 6.2.2003. The discharge card was also proved. PW.3-Satbir Singh deposed that the appellant moved a complaint in the office of SSP Hisar on 11.3.2003 and the same was sent in original on 2.4.2003 by SSP Hisar to SSP Hanumangarh. PW.5-Dr. R.S. Dalal also deposed that the appellant was examined on 17.12.2003 by a Medical Board comprising of Civil Surgeon Dr. O.P. Phogat, Orthopedic Surgeon Dr. T.S. Bagri and Dr. Dayal himself and on examination the appellant was found to have 32% permanent disability. In view of combined fracture of both bones of her right leg, her leg was shortened by two inch. The disability certificate was also proved.7. The Tribunal also considered the evidence of RW.1-Amit Chand and RW2-Suresh Kumar. Apart from the aforesaid evidence, the Tribunal also considered the detailed account of the accident given by the appellant as PW.4.8. This Court finds that on consideration of the aforesaid materials on record, the Tribunal granted compensation to the appellant to the extent of Rs.1,36,547/- with interest at 9% per annum from the date of filing of the petition till its realization. 9. This Court finds that the compensation is certainly not an excessive one. Rather the computation has been made modestly. 10. Unfortunately, this Court finds that the said well considered decision of the Tribunal was set aside by the High Court, inter alia, on the ground that even though complaint was forwarded to SSP Hisar and was further forwarded to SSP Hanumangarh but no from the office of SSP, Hanumangarh came to prove the complaint. The filing of the complaint by the appellant is not disputed as it appears from the evidence of PW.3-Satbir Singh, who is the Assistant Complaint Clerk in the office of Superintendent of Police, Hisar. If the filing of the complaint is not disputed, the decision of the Tribunal cannot be reversed on the ground that nobody came from the office of SSP to prove the complaint. The official procedure in matters of proceeding with the complaint is not within the control of the appellant, who is an ordinary village woman. She is not coming from the upper echelon of society. The general apathy of the administration in dealing with complaints lodged by ordinary citizens is far too well known to be overlooked by High Court. In this regard the perception of the High Court in disbelieving the complaint betrays a lack of sensitized approach to the plight of a victim in a motor accident claim case. 11. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh-PW.1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the Doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. 12. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim. The other so-called reason in the High Courts order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] are very pertinent. "In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
### Response:
1
### Explanation:
9. This Court finds that the compensation is certainly not an excessive one. Rather the computation has been made modestly.10. Unfortunately, this Court finds that the said well considered decision of the Tribunal was set aside by the High Court, inter alia, on the ground that even though complaint was forwarded to SSP Hisar and was further forwarded to SSP Hanumangarh but no from the office of SSP, Hanumangarh came to prove the complaint. The filing of the complaint by the appellant is not disputed as it appears from the evidence of PW.3-Satbir Singh, who is the Assistant Complaint Clerk in the office of Superintendent of Police, Hisar. If the filing of the complaint is not disputed, the decision of the Tribunal cannot be reversed on the ground that nobody came from the office of SSP to prove the complaint. The official procedure in matters of proceeding with the complaint is not within the control of the appellant, who is an ordinary village woman. She is not coming from the upper echelon of society. The general apathy of the administration in dealing with complaints lodged by ordinary citizens is far too well known to be overlooked by High Court. In this regard the perception of the High Court in disbelieving the complaint betrays a lack of sensitized approach to the plight of a victim in a motor accident claim case.11. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh-PW.1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the Doctors chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself.12. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim. The other so-called reason in the High Courts order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] are very pertinent."In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
|
Munirabad Chemicals Company Vs. B.C. Mody Exports Private Limited & Another | Company Judge also noted in para 5 of his order that the subsequent correspondence was made by the Registrar of Companies with the respondent No.1 at the changed address of the registered office. In these circumstances, we find no error in the view taken by the learned Company Judge that the respondent-company had intimated to the Registrar of Companies about the change of the address of its registered office and had also filed the necessary Form No.18 on 28th July, 1981.8. Learned counsel appearing for the appellant, however, strongly relied upon Regulation 18 of the Companies Regulations, 1956. It would be useful at this stage to refer the extracts of Section 146 of the Companies Act and along side Regulation 18 of the Companies Regulations which read as under:"Section 146: (1) A company shall, as from the day on which it begins to carry on business, or as from the thirtieth day after the date of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office, and of every change therein, shall be given within thirty days after the date of the incorporation of the company or after the date of the change, as the case may be, to the Registrar who shall record the same: Provided that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed (a) in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act, or where it may be situated later by virtue of a special resolution passed by the company; and (b) in the case of any other company, outside the local limits of any city, town or village where such office is first situated, or where it may be situated later by virtue of a special resolution passed by the company. (3) The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by sub-section (2).(4) If default is made in complying with the requirement of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues.""Regulation 18: No document required or authorised by or under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof under Schedule X to the Act and any additional fee imposed by the Registrar under section 611(2) are paid."9. The sub-section (1) of Section 146 lays down that a company shall have a registered office to which all communications and notices may be addressed. The sub-section (2) of Section 146 says that notice of every change in the situation of the registered office shall be given within 30 days after the date of change to the Registrar who shall record the same. The sub-section (2) confers, firstly, a duty on the company to inform the Registrar of Companies of any change in the place of the registered office and simultaneously confers a duty on the Registrar of Companies to record such change. Though a time limit of 30 days has been prescribed for the company to inform to the Registrar of Companies any change in the place of the registered office, no time limit has apparently been statutorily imposed on the Registrar of Companies to record the change. However, we are of the view that the Registrar of Companies must act within a reasonable time on a notice of change given by a company. The Registrar cannot wait for months and years together to record a change. What would be the reasonable period may depend upon the facts and circumstances of each case but it certainly cannot take 18 years for the Registrar of Companies to act. We are of the view that the Registrar of Companies could not have waited for 18 long years for recording the change of the address of the registered office of the respondent No.1. 10. Regulation 18 of the Companies Regulations no doubt says that no document required or authorised under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof has been paid. If any document is filed without payment of the prescribed fee, it is the duty of the Registrar to pass an order directing the person to pay the fee and/or to reject the document for non-payment of the filing fee or any other legally valid ground. He cannot sit over the document filed for months and years together, in this case for 18 years, and thereafter say that the prescribed fee has not been paid. It may be noted that it is not the case of the appellant nor of the Registrar of Companies that any other formality for recording change of address of the registered office was not complied with by the respondent No.1. All other formalities appear to have been completed and the Registrar already has addressed all the correspondence to the respondent No.1 at the address of the new registered office.11. In the circumstances, we are satisfied that the place of registered office of the respondent-company was changed from Khetan Bhawan, 198, J. Tata Road, Bombay-20 to 105, Apollo Street, Bombay Samachar Marg, Bombay-400 023. The notice of demand was not issued at the address of the registered office of the respondent No.1. The learned Company Judge, therefore, committed no error in dismissing the company petition on the ground that the statutory notice of demand was not served at the registered office of the respondent No.1. | 0[ds]In these circumstances, we find no error in the view taken by the learned Company Judge that thehad intimated to the Registrar of Companies about the change of the address of its registered office and had also filed the necessary Form No.18 on 28th July,are of the view that the Registrar of Companies could not have waited for 18 long years for recording the change of the address of the registered office of the respondent No.1.Regulation 18 of the Companies Regulations no doubt says that no document required or authorised under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof has been paid. If any document is filed without payment of the prescribed fee, it is the duty of the Registrar to pass an order directing the person to pay the fee and/or to reject the document forof the filing fee or any other legally valid ground. He cannot sit over the document filed for months and years together, in this case for 18 years, and thereafter say that the prescribed fee has not been paid. It may be noted that it is not the case of the appellant nor of the Registrar of Companies that any other formality for recording change of address of the registered office was not complied with by the respondent No.1. All other formalities appear to have been completed and the Registrar already has addressed all the correspondence to the respondent No.1 at the address of the new registered office.11. In the circumstances, we are satisfied that the place of registered office of thewas changed from Khetan Bhawan, 198, J. Tata Road,to 105, Apollo Street, Bombay Samachar Marg,023. The notice of demand was not issued at the address of the registered office of the respondent No.1. The learned Company Judge, therefore, committed no error in dismissing the company petition on the ground that the statutory notice of demand was not served at the registered office of the respondent No.1. | 0 | 2,082 | 377 | ### 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:
Company Judge also noted in para 5 of his order that the subsequent correspondence was made by the Registrar of Companies with the respondent No.1 at the changed address of the registered office. In these circumstances, we find no error in the view taken by the learned Company Judge that the respondent-company had intimated to the Registrar of Companies about the change of the address of its registered office and had also filed the necessary Form No.18 on 28th July, 1981.8. Learned counsel appearing for the appellant, however, strongly relied upon Regulation 18 of the Companies Regulations, 1956. It would be useful at this stage to refer the extracts of Section 146 of the Companies Act and along side Regulation 18 of the Companies Regulations which read as under:"Section 146: (1) A company shall, as from the day on which it begins to carry on business, or as from the thirtieth day after the date of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office, and of every change therein, shall be given within thirty days after the date of the incorporation of the company or after the date of the change, as the case may be, to the Registrar who shall record the same: Provided that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed (a) in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act, or where it may be situated later by virtue of a special resolution passed by the company; and (b) in the case of any other company, outside the local limits of any city, town or village where such office is first situated, or where it may be situated later by virtue of a special resolution passed by the company. (3) The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by sub-section (2).(4) If default is made in complying with the requirement of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues.""Regulation 18: No document required or authorised by or under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof under Schedule X to the Act and any additional fee imposed by the Registrar under section 611(2) are paid."9. The sub-section (1) of Section 146 lays down that a company shall have a registered office to which all communications and notices may be addressed. The sub-section (2) of Section 146 says that notice of every change in the situation of the registered office shall be given within 30 days after the date of change to the Registrar who shall record the same. The sub-section (2) confers, firstly, a duty on the company to inform the Registrar of Companies of any change in the place of the registered office and simultaneously confers a duty on the Registrar of Companies to record such change. Though a time limit of 30 days has been prescribed for the company to inform to the Registrar of Companies any change in the place of the registered office, no time limit has apparently been statutorily imposed on the Registrar of Companies to record the change. However, we are of the view that the Registrar of Companies must act within a reasonable time on a notice of change given by a company. The Registrar cannot wait for months and years together to record a change. What would be the reasonable period may depend upon the facts and circumstances of each case but it certainly cannot take 18 years for the Registrar of Companies to act. We are of the view that the Registrar of Companies could not have waited for 18 long years for recording the change of the address of the registered office of the respondent No.1. 10. Regulation 18 of the Companies Regulations no doubt says that no document required or authorised under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof has been paid. If any document is filed without payment of the prescribed fee, it is the duty of the Registrar to pass an order directing the person to pay the fee and/or to reject the document for non-payment of the filing fee or any other legally valid ground. He cannot sit over the document filed for months and years together, in this case for 18 years, and thereafter say that the prescribed fee has not been paid. It may be noted that it is not the case of the appellant nor of the Registrar of Companies that any other formality for recording change of address of the registered office was not complied with by the respondent No.1. All other formalities appear to have been completed and the Registrar already has addressed all the correspondence to the respondent No.1 at the address of the new registered office.11. In the circumstances, we are satisfied that the place of registered office of the respondent-company was changed from Khetan Bhawan, 198, J. Tata Road, Bombay-20 to 105, Apollo Street, Bombay Samachar Marg, Bombay-400 023. The notice of demand was not issued at the address of the registered office of the respondent No.1. The learned Company Judge, therefore, committed no error in dismissing the company petition on the ground that the statutory notice of demand was not served at the registered office of the respondent No.1.
### Response:
0
### Explanation:
In these circumstances, we find no error in the view taken by the learned Company Judge that thehad intimated to the Registrar of Companies about the change of the address of its registered office and had also filed the necessary Form No.18 on 28th July,are of the view that the Registrar of Companies could not have waited for 18 long years for recording the change of the address of the registered office of the respondent No.1.Regulation 18 of the Companies Regulations no doubt says that no document required or authorised under the Act to be registered, recorded or filed by or with the Registrar shall be registered, recorded or taken on file until the fee, if any, payable in respect thereof has been paid. If any document is filed without payment of the prescribed fee, it is the duty of the Registrar to pass an order directing the person to pay the fee and/or to reject the document forof the filing fee or any other legally valid ground. He cannot sit over the document filed for months and years together, in this case for 18 years, and thereafter say that the prescribed fee has not been paid. It may be noted that it is not the case of the appellant nor of the Registrar of Companies that any other formality for recording change of address of the registered office was not complied with by the respondent No.1. All other formalities appear to have been completed and the Registrar already has addressed all the correspondence to the respondent No.1 at the address of the new registered office.11. In the circumstances, we are satisfied that the place of registered office of thewas changed from Khetan Bhawan, 198, J. Tata Road,to 105, Apollo Street, Bombay Samachar Marg,023. The notice of demand was not issued at the address of the registered office of the respondent No.1. The learned Company Judge, therefore, committed no error in dismissing the company petition on the ground that the statutory notice of demand was not served at the registered office of the respondent No.1.
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Union of India (UOI) and Ors. Vs. W.N. Chadha | the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment. 114. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product. 115. Be that as it may, after having gone through the orders of the Special Court dated 5th February 1990 and 21st August 1990 and all the connected records placed before the Court, the Special Judges cannot be found with to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that the FIR constitutes a cognizable offence or offences and that a competent officer under the CrPC has made a request for issuance of letter rogatory. 116. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non-application of mind by the Special Judge. 117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed: Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law. 118. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus: This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petition cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the CrPC as has been done in this case.... That is why, even assuming that the provisions of Section 91 Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters; therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds.... The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner. | 0[ds]31. The above observation shows that the High Court did not favour the contention that the report of the JPC constitutes a legal bar for the registration of the FIR and continuation of the investigation.38. The facts and the sequence of events of this case which we have chronologically narrated more in a summary way than in describing the galaxy of facts in detail in order to avoid prolixity clearly show that while Shri Harinder Singh Chaudhary was seaking quashing of the letter rogatory, FIR and all other proceedings arising thereon as a public interest litigant on behalf of the accused named and unnamed inclusive of this respondent in the FIR, the respondent (W.N. Chadha) was inexplicably silent but only after Harinder Singh Chaudhary had miserably become unsuccessful in his attempt of thwarting the criminal proceedings even at the door step on the ground that he had no locus standi, the respondent (W.N. Chadha) has come out of his shell - that too - through his Paiorkar and challenged the criminal proceedings raising various questions which, of course , are available to him de hors the questions which have already-been decided and concluded by this Court during the first round of litigation. In fact, we ourselves in our earlier order dated 27th August 1991 have expressed the view that it is only for the aggrieved parties inclusive of this respondent to agitate and challenge the criminal proceedings at the appropriate time before the proper forum.50. The above conclusions clearly spell out that this Court did not share the view that the First Information Report does not disclose any offence but however the other questions which might be available for the accused persons to attack the First Information could be availed of.60. It is clear from the above meaning of the said expression that Letter Rogatory is a formal communication in writing sent by a Court in which action is pending to a foreign Court or Judge requesting the testimony of a witness residing within the jurisdiction of that foreign Court may be formally taken thereon under its direction and transmitted to the issuing Court making such request for use in a pending legal contest or action. This request entirely depends upon the comity of Courts towards each other, that is to say, on the friendly recognition accorded by the Court of one nation to the laws and usages of the Court of another nation.61. It appears from the records that the First Information Report was laid before the Special Court on 22nd January, 1990. On 23rd January, the request was made by the Director of CBI followed by another letter of request dated 26th January, 1990 to the concerned authorities in Switzerland for freezing/blocking certain bank accounts, relevant to this case. The Federal Department of Justice and Police, Switzerland moved the Judge of Geneva and the concerned Judge of Zurich who on being prima facie convinced of dual criminality and the need for investigation in Switzerland froze the relevant bank accounts in this regard on 26th January, 1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland. As per the intimation, the relevant accounts in the bank has been blocked upon 28th February, 1990. therefore, it had become necessary for freezing the accounts beyond 28th February, 1990 and to make a request for judicial assistance to Switzerland failing which the Swiss law obliges the withdrawal of the instructions to block the accounts. It is further disclosed from the records that the Federal Department of Justice and Police at Berne which corresponds to the Ministry of Law and Home of the Government of India have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20th February, 1989 subject to the condition of the receipt of letter rogatory from the competent judicial authority in India. This necessitated to send letter rogatory to Switzerland urgently for getting the necessary assistance for the investigation to be conducted in Switzerland lest very valuable and relevant evidence would remain uncollected and the cause of justice would suffer.Section 166-A which was introduced after the issue of letter rogatory on 5/7th February, 1990 confers jurisdiction on the Special Judge to issue such letters. The result is that there is no specific discussion with regard to the authority of the Court in issuing the first letter rogatory.67. In would be significant, in this connection, to refer to the remark of the High Court reading thus:We may point out here that in reply to written submissions filed by the petitioner, CBI had filed additional written submissions and had stated therein that besides three contentions mentioned in the preceding paragraphs, the learned Counsel for the petitioner, during the course of oral arguments, had not pressed the contention that the Special Judge had no jurisdiction to issue the first letter rogatory on 5/7th-2-1990.68. There is no challenge before us to the above additional written submission of the CBI.69. The High Court coming to the legal aspect has observed thus:Similarly once the power has been conferred on the criminal court to issue the letter rogatory, it follows that the court will have to apply its mind and give an opportunity of hearing to the person whose property or rights are sought to be affected by letter rogatory.70. After observing so, the High Court proceeded only on the ground that the Special Judge has not complied with the principle of audi alteram partem and also has not applied his mind to the facts and circumstances of the case before issuing letters rogatory, as aforementioned.71. therefore, we are not called upon to go into the question of the jurisdiction of the Special Judge in issuing the letter rogatory but have to deal only with the other two grounds on the basis of which the High Court quashed the letters rogatory.72. It would not be out of place to mention here that as rightly pointed out by the Additional Solicitor General that the amended letter rogatory issued on 22nd August, 1990 has got legal sanction under Section 166-A of the Criminal Procedure Code (for short Code) notwithstanding the fact that this provision was not in the statute on 5th February, 1990.74. No doubt it is true that a seven-Judges Bench of this Court in Smt. Maneka Gandhi has opened a new vista in the area of personal liberty as enshrined under Article 21 of the Constitution and emphasised the audi alteram partem rule which emphasis is of affording a fair opportunity of being heard on prior notice to a party to whose prejudice an order is intended to be passed by the Government or its officials. Further, it is stated by the High Court that all the safeguards in favour of an accused contained in the Criminal Procedure Code have now become a part of the constitutional provisions and they are governed by Articles 14, 19, 20, 21 and 22 and that the procedure contemplated under Article 21 requires that it should not be arbitrary, fanciful, oppressive or discriminatory. therefore, the failure on the part of the Special Judge in issuing notice to the respondent and affording him a reasonable opportunity of being heard vitiates the letters rogatory.76. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact by preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.77. In fact the Special Judge in Delhi is not possessed with any power or authority to deprive the liberty of the respondent residing out of the jurisdiction of Indian Courts and having his property in question in a foreign country. Only in case where a public officer has got such a power, the question of fair play in action will be attracted.80. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.87. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.88. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise.94. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.95. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the CrPC - such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the CrPC.96. Incidentally, it may be stated that there is no question of attachment of money of the respondent or any of the accused, named or unnamed, standing to the credit of the account holders in Swiss banks linked with Bofors mystery but it was only freezing of the accounts as per the request made by the Director, CBI by Ms letter dated 23rd January, 1990 and followed by another letter dated 26th January, 1990 and thereafter pursuant to the request through letters rogatory for judicial assistance in Switzerland, But for the request made by the letter rogatory, the Swiss law obliges withdrawal of all the instructions to block the account. therefore, we are of the view that the detailed discussion of the High Court with reference to the Criminal Law Amendment Ordinance of 1944 though is not warranted in this regard.97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.98. Reverting to the facts, it is not the case of the respondent that he is having any account in Swiss banks connected with Bofors mystery and that that account is frozen to his prejudice. When the respondent himself has not come forward with any specific case stating as to what was the quantum of the amount standing to his credit in Swiss banks and in what manner he is now aggrieved by the letter rogatory and in what way he is deprived of his properties, it is incomprehensible as to how the High Court has come to the conclusion that the respondent is deprived of his property. Similarly, any one of the other named or unnamed accused or any third party, not named in the FIR, has not come forward with a complaint of grievance on account of the freezing of the accounts.101. We are unable to see any force in the above submission of Shri Rajinder Singh because, firstly there is no request for production of the documents; secondly there is no prayer in the letter rogatory for production of the entire account books and; thirdly till date no objection is taken by the Swiss banks. It is pertinent to note that the High Court has not found fault with the validity of the letter rogatory on the ground of alleged production of bank accounts or the failure of any notice to the Swiss banks.103. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by CBI is only for process of judicial assistance from the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition.104. For the aforementioned discussion, we hold that the facts and circumstances of the case do not attract the audi alteram partem rule requiring a prior notice and an opportunity of being heard to the respondent and that the respondent has never been prejudiced and deprived of his right to property due to the alleged non-compliance of the principle of audi alteram partem.107. From the judgment, it is seen that certain documents which are said to have been claimed as secret and confidential documents by the ASG are taken into consideration for reaching to the conclusion that there was non-application of mind.113. During the argument before this Court, the Additional Solicitor General reaffirms that certain secret and confidential documents at the instance of the court - namely the letters of the CBI to the Federal Department of Justice and Police, Berne, Switzerland dated 23rd and 26th January, 1990, the order dated 3rd July, 1990 of the Cantonal Court, the note of compliance of the CBI, the letters of the Chief of Army Staff, the minutes of the meeting of the Negotiating Committee etc. etc. were handed over in a sealed cover with an oral request not to reveal the document to the other side or to refer them in the judgment since otherwise the Government would be claiming privilege on the said documents. In other words, oral privilege was claimed under Section 124 of the Evidence Act. The Additional Solicitor General continues to state that the High Court unfortunately despite the oral request made on behalf of the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment.114. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product.115. Be that as it may, after having gone through the orders of the Special Court dated 5th February 1990 and 21st August 1990 and all the connected records placed before the Court, the Special Judges cannot be found with to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that the FIR constitutes a cognizable offence or offences and that a competent officer under the CrPC has made a request for issuance of letter rogatory.116. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non-application of mind by the Special Judge.117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed:Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law.118. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus:This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petition cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the CrPC as has been done in this case....That is why, even assuming that the provisions of Section 91 Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters; therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds.... The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner.The fact that original documents were made use of and relied upon by the High Court is strengthened by the following observation made in the impugned judgment itself:The urgency of acquisition of 155 mm gun is evident from the letter dated 29th November, 1985 written by the then Chief of Army Staff to the then Raksha Rajya Mantri (A), which we have perused from the original record.123. A scrutiny of the judgment demonstrably shows that the High Court has gone through some original records which in the very nature of them could not have been made available by the respondent. As indicated above, the Additional Solicitor General states that the original documents were produced by the Government in a sealed cover for the Courts perusal with an oral request not to reveal the documents to the other side and to make use of them in the judgment, besides orally claiming privilege. However, the High Court has not only referred to those documents but also very much relied upon them. In fact, the High Court has reproduced a relevant portion of the letter dated 29.11.1985 of the then Chief of Army Staff and also a portion of the minutes of the meeting of the Negotiating Committee recorded on the 4th March 1986. It was only on the basis of the above documents the High Court drew its final conclusion regarding the procedure followed from the very proposal of the contract till its finalisation.137. At the outset we are constrained to observe that we are terribly shocked on seeing that the High Court has gone out of its authority and overstepped its province by making use of certain original records and then on the basis of the said records proceeded to examine the entire procedure followed right from the proposal up to the finalisation of the contract between Bofors and Government of India and its genuineness and bona fide and ultimately affixed its seal of judicial approval holding that the contract is perfect and bona fide.138. It is to be noted that the High Court appears to have waded through the entire original records produced before it by the Government for its perusal and on the strength of those documents, the Court has raised the two questions, namely, whether the proper procedure in the execution of the contract was followed and whether the contract finalised is perfect and bona fide and answered both the questions in affirmative, that is in favour of the respondent and prejudicial to the appellants.139. The perusal of the impugned judgment clearly discloses that the learned Judges of the High Court have freely used those documents which are said to be secret and confidential and not only referred but also quoted certain portion of those documents in extenso as stated supra.In our view, the documents (the copies of which are produced before us claiming to be secret documents) from their very nature could have never been in possession of any third party much less with the respondent and in such a case, the High Court was not at all justified in making use of those documents for its findings especially in a case of this nature where there are serious and outrageous allegations. In these circumstances, one would be constrained to observe that the High Court has prejudged the issue and thereby laid down the foundation for its subsequent findings for quashing the entire proceedings. No doubt every court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind one way or the other.140. We feel that it is not necessary to go deep into the matter any further except saying that the High Court is not justified in affixing its seal of approval to the contract by holding it to be bona fide, on being executed following the proper procedure.141. For all the reasons stated above we without any hesitation quash those finding with regard to the nature of the contract and the procedure followed.145. One should not lose sight of the fact that the oral understanding has not been incorporated in the written agreement about which there is no dispute. What is stated at the bar is that the oral understanding has been confirmed by subsequent correspondence between the parties.. The High Court hasextensively quoted the opinion of the then learned Attorney General and very much relied on it for its observation, reading thus:After the Government of Indias policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence.146. Be that as it may, we feel that it is not necessary to go deep into the matter in the light of our earlier finding given in Criminal Appeal No. 304/91 etc. etc. the judgment of which is reported in 1991CriLJ838 under the caption Janata Dal v. H.S. Chowdhary wherein we have stated that we were unable to share the assertion of Mr. Justice M.K. Chawla holding that the FIR on the face of it does not disclose any offence. Further this Court has also expressed its feeling on the statement of Justice Chawla in the following terms:While so, it shocks our judicial conscience that Mr. Justice M.K. Chawla before whom no aggrieved or affected party had come challenging the FIR, has taken suo moto action and recorded such a categorical assertion that no offence thereby meaning much less a cognizable offence is made out in the FIR.147. In fact, the High Court in its impugned judgment itself has recorded its finding that they are also of the same view as that of this Court that it may not be correct that the FIR does not disclose any offence against anyone named or unnamed accused which definitely includes the respondent also. In the background of the finding of this Court and that of the High Court it is not necessary to go deep into the matter by referring to various documents such as report of the JPC, the opinion of the then learned Attorney General, report of the Comptroller and Auditor General of India etc. lest it may affect either of the parties if the investigation ends up with the trial of the case. Though we refrain from giving any positive finding with regard to the alleged payment of the bribe amount to the respondent, the allegations made in the FIR under Section 154 of the CrPC prima facie constitute the offence alleged therein. Hence we set aside the finding of the High Court that no offence is made out against the respondent under various provisions of the different Statutes.149. The above argument cannot be countenanced. As observed in Bhajan Lal, when the entire matter is only at a preliminary stage and when the investigation has yet to go a long way to gather the requisite evidence the Court cannot come to a conclusion one way or the other on the plea of mala fide at such a stage. Further in case the investigation discloses that the entire proceeding has been initiated only with mala fides, probably the prosecution itself may throw the case overboard. Answering a similar contention, Bhagwati, CJ in Sheonandan Paswan v. State of Bihar 1987CriLJ793 has observed as follows:It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.150. The said observations made in Bhajan Lal and Sheonandan Paswan in this regard apply with all force to the case on hand.151. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceeding to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.152. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, Whatever explanation for this may be, we disapprove the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records.151. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceeding to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.152. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, Whatever explanation for this may be, we disapprove the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records.154. Though initially, Mr. Rajinder Singh took a serious objection to the conduct of the CBI in pasting this piece of paper to the letter rogatory without the permission of the Court, when confronted by the subsequent approval of Shri V.S. Aggarwal, Special Judge he had no answer to sustain the remark of the High Court. We are now fully convinced that there was no tempering of judicial letter rogatory but only additional particulars were furnished for ready reference of the names of the account holders as contained in the letter dated 26th January, 1990. Even if it is to be held that the piece of paper should not have been pasted, leave apart the explanation offered since Shri V.S. Aggarwal has approved the letter rogatory with the pasted piece of paper on being satisfied the circumstances under which it was pasted, the CBI cannot be ostracised. It must be noted by pasting that slip Shri Madhavan has not added any additional information on his own. therefore, we expunge the remark of the High Court, as prayed for in the Cr.M.P. In view of this finding, we hold that the High Court was not correct in holding that this has amounted to tampering of judicial records.. The High Court hastaken into consideration two factors alongwith the conclusions arrived at by the JPC in its report for granting the relief to the respondent despite its finding that the allegations in the First Information Report discloses an offence against all the accused about which we will deal in the later part of this judgment.156. Of the two, first relates to the alleged failure on the part of the CBI to name any one of the public servants as an accused even after the 31 months from the registration of the case and the second relates to the impounding of the passport of the respondent.157. In dealing with the first question of the two, the High Court said:...even after the expiry of more than 31 months from the registration of the FIR, CBI has failed to name any public servant as an accused.158. The above reasoning of the High Court is neither legally nor factually sustainable. As rightly pointed out by the Additional Solicitor General whose submissions we have already summarised in the earlier part of this judgment, it is not due to any indolence or procrastination on the part of the investigation but it is due to the obstructions put on the track of investigation for scuttling the same by approaching the judiciary firstly by Shri H.S. Chowdhary as public interest litigant and secondly by the respondent through his pairokar. However, the CBI all through is maintaining stoic silence unmindful of all the scornful criticism and vilification levelled against it, and is relentlessly and tirelessly fighting all the litigations so that it can successfully proceed with the investigation and collect all the materials to espouse the cause of justice. To say that the prosecution has failed to name any one of the public servants as an accused even after 31 months from the registration of the case, is a very uncharitable criticism. A survey of the various proceedings of this litigation reveals that the investigating agency, namely the CBI was fettered at every stage and made to spare its energy more in Court proceedings than in proceeding with the investigation. Only if the investigation is freely allowed without any hindrance, the investigating agency can collect all the requisite particulars and bring the names of those public servants on record, the secrecy of which, it is said, is deeply buried in various places and under various Departments. Hence this reasoning is devoid of any merit.159. In the penultimate paragraph of the impugned judgment, the High Court has observed:...It may be noted here that pursuant to the registration of the FIR against the petitioner his passport has been impounded. Non-bailable warrants for his arrest were issued and the same have been quashed by a learned Single Judge of this Court and the matter is now pending before the Supreme Court. In these circumstances, it is a fit case where investigation cannot be allowed to continue against the petitioner.160. We are not able to see any logic in the above reasoning. When we asked the counsel for the respondent as to whether this material of the impounding of passport was placed before the High Court, he hesitatingly stated that the order of the High Court in Crl. Misc. (Main) No. 1318 of 1990 titled Washeshwar Nath Chadha v. State, has been reported in (1991) 1 DLr 394, and thereby requested the Court to infer that the High Court might have taken note of that reported judgment, though the judgment spells out nothing about the source of information in this regard. At the instance of this Court, a copy of the reported judgment in Crl. Misc. case has been placed before this Court by the respondent.161. Be that as it may, the respondent who was the petitioner in the above case filed a petition before the High Court under Section 482 Cr.P.C. read with Article 227 of the Constitution seeking certain reliefs, namely, to permit him to inspect the FIR which is the impugned FIR in this case, and to quash the non-bailable warrants issued against him relating to a case registered under the provisions of the Passport Act, 1967.162. We are surprised that the High Court has taken a serious view of the impounding of the passport as being a supportive reason for its finding of annulling the proceedings. In fact that proceeding under the Passport Act cannot have any bearing in this proceeding initiated for quashing the FIR even though the impounding of the passport is to secure the presence of the respondent for the investigation purposes in connection with the case on hand. However, in passing we would like to quote a sentence from the order of that case, whatever purpose it may serve. The sentence reads ...petitioner does not want the quashing of the FIR nor is he making a request to this Court to interfere in the investigation of the case.(emphasis supplied)163. It may be stated that the petitioner in that case is the respondent herein and the FIR referred to above is the impugned FIR in the present case.164. Now we shall pass on to a very important aspect of the case which renders the very conclusions of the High Court quashing the FIR as highly unsustainable.165. Coming to the close of the judgment, the High Court itself has expressed its view stating ...it may not be correct to say that the FIR on the face of it does not disclose any offence against any one, named or unnamed accusedwhich we have already extracted above. Having held so, the High Court thought that in exercise of its powers under Article 226, it could quash the FIR on its findings on the other issues. It surprises us as to how the High Court quashed the FIR after having positively found that the FIR discloses an offence/offences against named and unnamed accused which will include the respondent also. But in the next breath, it is held that no offence is made out.166. This Court, in its earlier proceedings, has rejected the contention that the FIR does not disclose any offence. This observation is binding on the High Court yet the High Court strangely by way of self-contradiction has held that no offence is made out against the petitioner and thereby stonewalled the CBI probe. This paradoxical finding perhaps by the High Court is sought to be justified by feebly relying on the fact that the investigating agency has failed to name any public servant as an accused, on the conclusions of the JPC and also on the circumstances of the impounding of the passport of the respondent. These aspects have been dealt by us and we have categorically held that these aspects do not in any way affect the contents of the validity of the FIR. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very FIR.167. We, therefore, are of the firm view that the self contradictory findings of the High Court itself gives a frontal attack to the impugned judgment, rendering it unsustainable both in law and fact. To put it ironically, the impugned judgment profusely bleeds due to its self inflicted injury.168. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the FIR discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous and untenable and attempting to sustain the other part as being well founded on sound reasonings.169. It cannot be said that the Report of the JPC has acquitted the respondent and others of all the charges levelled against them on appraisal of the entire evidence. On the other hand, the Report spells out that Bofors did not co-operate and the evidence relating to the recipients of the amount was not forthcoming.Though we are not inclined to make a detailed survey of the Report, it would suffice to refer to some of the conclusions of the JPC which would serve our purpose. For proper understanding, we shall reproduce hereunder the relevant portions of some of the conclusions, recorded, under Chapter IX of the Report of JPC.Conclusion (vi)...Despite persistent demands from the Government of India, Bofors declined to give details of these payments and the recipients thereof.Conclusion No. (vii)Bofors have expressed inability to furnish copies of their initial as well as the termination agreements with the tree companies to whom winding up costs were paid, on the plea of commercial secrecy. They have complained that such disclosure would be a breach of their confidentiality agreement with these companies.Conclusion No. (ix)On the ground of commercial confidentiality, Bofors have not furnished full details of the persons to whom winding up costs were paid. Nobody has come forward with any evidence in regard to the identity of recipients of payments made by Bofors.... It has not been possible for either our investigating agencies or any other sources to find any evidence regarding the identity of recipients. The Committee have, therefore, not been able to reach any conclusion in regard to the identity of recipients.Conclusion No. (xi)There is no evidence to show that any middleman was involved in the process of the acquisition of the Bofors gun. There is also no evidence to substantiate the allegations of commissions or bribes having been paid to anyone. therefore, the question of payments to any Indian or Indian company whether resident in India or not, does not arise, especially as no evidence to the contrary is forthcoming from any quarter.Conclusion No. (xii)Mere suspicion as regards existence of middleman and/or payments of commissions does not constitute sufficient ground for initiating action to terminate the contract with Bofors or to raise claims for the reimbursement to Government of payments made by Bofors to the three foreign companies.Conclusion No. (xiii)There is no evidence to establish that the Bofors payments totalling SEK 319.4 million involved a violation of any Indian Law.Conclusion No. (xiv)There is no evidence of any other payment having been made by Bofors for winning the Indian contract.170. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully cooperating with the enquiry furnishing the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney General of India.171. Now it is shown that the Swiss authorities are coming forward to give full co-operation and assistance in the collection of evidence at their end. therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact Shri Rajiv Gandhi, the then Prime Minister of India himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th April, 1987 which we have already extracted in our earlier part of this judgment. However, it may be recalled, in this connection also, his statement reading You show us evidence we do not want proof, we will bring the proof. This assurance was affirmed and reaffirmed on more than one occasion by the Minister for Defence during the course of the discussion in the Parliament. The JPC itself has felt some suspicion as regards the existence of middleman, but what the report says is that the mere suspicion does not constitute sufficient ground for initiating action. | 0 | 17,281 | 8,175 | ### Instruction:
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the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment. 114. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product. 115. Be that as it may, after having gone through the orders of the Special Court dated 5th February 1990 and 21st August 1990 and all the connected records placed before the Court, the Special Judges cannot be found with to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that the FIR constitutes a cognizable offence or offences and that a competent officer under the CrPC has made a request for issuance of letter rogatory. 116. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non-application of mind by the Special Judge. 117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed: Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law. 118. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus: This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petition cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the CrPC as has been done in this case.... That is why, even assuming that the provisions of Section 91 Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters; therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds.... The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner.
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the High Court quashed the FIR after having positively found that the FIR discloses an offence/offences against named and unnamed accused which will include the respondent also. But in the next breath, it is held that no offence is made out.166. This Court, in its earlier proceedings, has rejected the contention that the FIR does not disclose any offence. This observation is binding on the High Court yet the High Court strangely by way of self-contradiction has held that no offence is made out against the petitioner and thereby stonewalled the CBI probe. This paradoxical finding perhaps by the High Court is sought to be justified by feebly relying on the fact that the investigating agency has failed to name any public servant as an accused, on the conclusions of the JPC and also on the circumstances of the impounding of the passport of the respondent. These aspects have been dealt by us and we have categorically held that these aspects do not in any way affect the contents of the validity of the FIR. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very FIR.167. We, therefore, are of the firm view that the self contradictory findings of the High Court itself gives a frontal attack to the impugned judgment, rendering it unsustainable both in law and fact. To put it ironically, the impugned judgment profusely bleeds due to its self inflicted injury.168. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the FIR discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous and untenable and attempting to sustain the other part as being well founded on sound reasonings.169. It cannot be said that the Report of the JPC has acquitted the respondent and others of all the charges levelled against them on appraisal of the entire evidence. On the other hand, the Report spells out that Bofors did not co-operate and the evidence relating to the recipients of the amount was not forthcoming.Though we are not inclined to make a detailed survey of the Report, it would suffice to refer to some of the conclusions of the JPC which would serve our purpose. For proper understanding, we shall reproduce hereunder the relevant portions of some of the conclusions, recorded, under Chapter IX of the Report of JPC.Conclusion (vi)...Despite persistent demands from the Government of India, Bofors declined to give details of these payments and the recipients thereof.Conclusion No. (vii)Bofors have expressed inability to furnish copies of their initial as well as the termination agreements with the tree companies to whom winding up costs were paid, on the plea of commercial secrecy. They have complained that such disclosure would be a breach of their confidentiality agreement with these companies.Conclusion No. (ix)On the ground of commercial confidentiality, Bofors have not furnished full details of the persons to whom winding up costs were paid. Nobody has come forward with any evidence in regard to the identity of recipients of payments made by Bofors.... It has not been possible for either our investigating agencies or any other sources to find any evidence regarding the identity of recipients. The Committee have, therefore, not been able to reach any conclusion in regard to the identity of recipients.Conclusion No. (xi)There is no evidence to show that any middleman was involved in the process of the acquisition of the Bofors gun. There is also no evidence to substantiate the allegations of commissions or bribes having been paid to anyone. therefore, the question of payments to any Indian or Indian company whether resident in India or not, does not arise, especially as no evidence to the contrary is forthcoming from any quarter.Conclusion No. (xii)Mere suspicion as regards existence of middleman and/or payments of commissions does not constitute sufficient ground for initiating action to terminate the contract with Bofors or to raise claims for the reimbursement to Government of payments made by Bofors to the three foreign companies.Conclusion No. (xiii)There is no evidence to establish that the Bofors payments totalling SEK 319.4 million involved a violation of any Indian Law.Conclusion No. (xiv)There is no evidence of any other payment having been made by Bofors for winning the Indian contract.170. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully cooperating with the enquiry furnishing the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney General of India.171. Now it is shown that the Swiss authorities are coming forward to give full co-operation and assistance in the collection of evidence at their end. therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact Shri Rajiv Gandhi, the then Prime Minister of India himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th April, 1987 which we have already extracted in our earlier part of this judgment. However, it may be recalled, in this connection also, his statement reading You show us evidence we do not want proof, we will bring the proof. This assurance was affirmed and reaffirmed on more than one occasion by the Minister for Defence during the course of the discussion in the Parliament. The JPC itself has felt some suspicion as regards the existence of middleman, but what the report says is that the mere suspicion does not constitute sufficient ground for initiating action.
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Ganesh Vs. State of Maharashtra, Through Its Police Station Officer | between the appellant and deceased on account of outstanding amount. Therefore, amount was outstanding against the appellant cannot be taken into consideration as a motive to commit an offence.15. Learned trial Court has taken into consideration the recovery of weapon from the appellant. It is pertinent to note that after lodging the report by P.W. 1, Investigating Officer arrested the appellant on 31-3-2011. There is nothing in the evidence of any of the witnesses including the Investigating Officer to show how and why the appellant was arrested. P.W. 3 has stated about the confessional statement of appellant and recovery of two knifes, blood stained clothes etc. The confessional statement is at Exhibit 44 and recovery panchanama is at Exhibit 45.16. Spot panchanama is proved by P.W. 8 Hasan Ali. He has stated in his evidence that on 27-3-2011, PSI Ingawale called him on the spot of incident. Spot panchanama, Exhibit 70 was prepared in his presence. At the time of spot panchanama, one motorcycle was lying on the spot, one goggle, one pair of plastic chappal and chain of yellow colour were lying there. One belt, one knife was also lying on the spot of incident. It is pertinent to note that the knife was having blood stains.17. The Investigating Officer called the dog squad. Smell of belt was given to dog but that dog did not show any way. The said belt was also sent to Finger Print Expert to show that fingers of appellant was there but report of Finger Print Expert, Exhibit 94 shows that the finger prints were not valid.18. Two witnesses were examined by the prosecution to show that belt was purchased by the appellant but report of the Finger Print Expert, Exhibit 95 shows that there was no finger print of appellant. Hence, this evidence is not useful to the prosecution.19. Appellant was arrested on 31-3-2011. He was examined by Dr. Dahake. He found four minor injuries. In the cross-examination, he has admitted that if a person fall from running two wheeler, then such injuries can be caused.20. Recovery of weapon is not the material circumstance against the appellant. It is not established by cogent evidence that the weapon/knife which was seized from the accused was the same weapon examined by the Chemical Analyser. As per the spot panchanama, one knife was seized, it was blood stained. As per the recovery panchanama, Exhibit 45, two knives were seized from the accused. Chemical Analyser report, Exhibit 22 shows that only two knives were examined by the Chemical Analyser. Only on one knife human blood of Group B was found. As per the Chemical Analysers report, Exhibit 20, blood group of deceased was B. Blood group of appellant was not determined as per the Chemical Analysers report, Exhibit 21.21. It is pertinent to note that blood sample of appellant was not extracted by Dr. Dahake. Medical Officer not stated about the extraction of the blood of the appellant. Investigating Officer Ingawale also not stated about the collection of blood sample of accused. Therefore, it is doubtful as to whether blood of appellant was collected and sent for chemical analysis.22. It is brought on record in the evidence of panch witness of the spot panchanama and panch witness of recovery panchanama of weapon from the accused that two knives were seized at the instance of appellant and one knife was seized on the spot of incident. It is clear from the Chemical Analysers report, Exhibit 22 that only two knives were examined by the Chemical Analyser. What about third knife is not explained by the prosecution. There might be possibility that any other person might have killed deceased and thrown the knife on the spot of incident itself. Possibility cannot be ruled out that the said knife was having blood of deceased. Hence, the recovery of weapons from the appellant cannot be taken as a circumstance against the appellant.23. First two circumstances, namely, last seen and motive are not proved by the prosecution. Third circumstance recovery of weapons is proved by the prosecution but this circumstance appears to be doubtful because one knife was found on the spot of incident and two knives were recovered at the instance of appellant. Only two knives were examined by the Chemical Analyser. Third knife was not examined by the Chemical Analyser. Therefore, possibility cannot be ruled out that any other person might have killed the deceased and thrown the knife on the spot. Said knife was having blood of deceased cannot not be ruled out. Hence, this circumstance is also not reliable.24. In the case of B.L. Satish Vs. State of Karnataka (cited supra), Honble Supreme Court has observed that appellant convicted for murder of his grandmother aged about 75 years. Case based on circumstantial evidence. Death was by strangulation between 9.30 a.m. and 1.00 p.m. on 16-6-1994. Only circumstance pitted by prosecution against accused was that on 18-6-1994, he got ornaments, case property of the case, recovered from the house of his maternal grandfather. Single circumstance was hardly sufficient for Criminal Court to reach conclusion that appellant committed the murder. Conviction was liable to be set aside.25. In the present case also, prosecution has failed to prove the circumstances of last seen and motive. The third circumstance in respect of recovery of weapons though proved, it is doubtful. There is no eye witness of the incident.26. There is no dispute about the homicidal death of deceased but prosecution has to prove that appellant is author of crime. In view of the guidelines of Honble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (cited supra), the circumstances are not sufficient against the appellant to convict him for the offences charged against him.27. From the perusal of impugned judgment, it is clear that learned trial Court not recorded specific finding and come to the wrong conclusion. Hence, impugned judgment is liable to be quashed and set aside. In the result, we pass the following order.ORDER (i) | 1[ds]22. It is brought on record in the evidence of panch witness of the spot panchanama and panch witness of recovery panchanama of weapon from the accused that two knives were seized at the instance of appellant and one knife was seized on the spot of incident. It is clear from the Chemical Analysers report, Exhibit 22 that only two knives were examined by the Chemical Analyser. What about third knife is not explained by the prosecution. There might be possibility that any other person might have killed deceased and thrown the knife on the spot of incident itself. Possibility cannot be ruled out that the said knife was having blood of deceased. Hence, the recovery of weapons from the appellant cannot be taken as a circumstance against the appellant.First two circumstances, namely, last seen and motive are not proved by the prosecution. Third circumstance recovery of weapons is proved by the prosecution but this circumstance appears to be doubtful because one knife was found on the spot of incident and two knives were recovered at the instance of appellant. Only two knives were examined by the Chemical Analyser. Third knife was not examined by the Chemical Analyser. Therefore, possibility cannot be ruled out that any other person might have killed the deceased and thrown the knife on the spot. Said knife was having blood of deceased cannot not be ruled out. Hence, this circumstance is also not reliable.In the present case also, prosecution has failed to prove the circumstances of last seen and motive. The third circumstance in respect of recovery of weapons though proved, it is doubtful. There is no eye witness of the incident.26. There is no dispute about the homicidal death of deceased but prosecution has to prove that appellant is author of crime. In view of the guidelines of Honble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (cited supra), the circumstances are not sufficient against the appellant to convict him for the offences charged against him.27. From the perusal of impugned judgment, it is clear that learned trial Court not recorded specific finding and come to the wrong conclusion. Hence, impugned judgment is liable to be quashed and set aside. | 1 | 2,698 | 411 | ### Instruction:
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between the appellant and deceased on account of outstanding amount. Therefore, amount was outstanding against the appellant cannot be taken into consideration as a motive to commit an offence.15. Learned trial Court has taken into consideration the recovery of weapon from the appellant. It is pertinent to note that after lodging the report by P.W. 1, Investigating Officer arrested the appellant on 31-3-2011. There is nothing in the evidence of any of the witnesses including the Investigating Officer to show how and why the appellant was arrested. P.W. 3 has stated about the confessional statement of appellant and recovery of two knifes, blood stained clothes etc. The confessional statement is at Exhibit 44 and recovery panchanama is at Exhibit 45.16. Spot panchanama is proved by P.W. 8 Hasan Ali. He has stated in his evidence that on 27-3-2011, PSI Ingawale called him on the spot of incident. Spot panchanama, Exhibit 70 was prepared in his presence. At the time of spot panchanama, one motorcycle was lying on the spot, one goggle, one pair of plastic chappal and chain of yellow colour were lying there. One belt, one knife was also lying on the spot of incident. It is pertinent to note that the knife was having blood stains.17. The Investigating Officer called the dog squad. Smell of belt was given to dog but that dog did not show any way. The said belt was also sent to Finger Print Expert to show that fingers of appellant was there but report of Finger Print Expert, Exhibit 94 shows that the finger prints were not valid.18. Two witnesses were examined by the prosecution to show that belt was purchased by the appellant but report of the Finger Print Expert, Exhibit 95 shows that there was no finger print of appellant. Hence, this evidence is not useful to the prosecution.19. Appellant was arrested on 31-3-2011. He was examined by Dr. Dahake. He found four minor injuries. In the cross-examination, he has admitted that if a person fall from running two wheeler, then such injuries can be caused.20. Recovery of weapon is not the material circumstance against the appellant. It is not established by cogent evidence that the weapon/knife which was seized from the accused was the same weapon examined by the Chemical Analyser. As per the spot panchanama, one knife was seized, it was blood stained. As per the recovery panchanama, Exhibit 45, two knives were seized from the accused. Chemical Analyser report, Exhibit 22 shows that only two knives were examined by the Chemical Analyser. Only on one knife human blood of Group B was found. As per the Chemical Analysers report, Exhibit 20, blood group of deceased was B. Blood group of appellant was not determined as per the Chemical Analysers report, Exhibit 21.21. It is pertinent to note that blood sample of appellant was not extracted by Dr. Dahake. Medical Officer not stated about the extraction of the blood of the appellant. Investigating Officer Ingawale also not stated about the collection of blood sample of accused. Therefore, it is doubtful as to whether blood of appellant was collected and sent for chemical analysis.22. It is brought on record in the evidence of panch witness of the spot panchanama and panch witness of recovery panchanama of weapon from the accused that two knives were seized at the instance of appellant and one knife was seized on the spot of incident. It is clear from the Chemical Analysers report, Exhibit 22 that only two knives were examined by the Chemical Analyser. What about third knife is not explained by the prosecution. There might be possibility that any other person might have killed deceased and thrown the knife on the spot of incident itself. Possibility cannot be ruled out that the said knife was having blood of deceased. Hence, the recovery of weapons from the appellant cannot be taken as a circumstance against the appellant.23. First two circumstances, namely, last seen and motive are not proved by the prosecution. Third circumstance recovery of weapons is proved by the prosecution but this circumstance appears to be doubtful because one knife was found on the spot of incident and two knives were recovered at the instance of appellant. Only two knives were examined by the Chemical Analyser. Third knife was not examined by the Chemical Analyser. Therefore, possibility cannot be ruled out that any other person might have killed the deceased and thrown the knife on the spot. Said knife was having blood of deceased cannot not be ruled out. Hence, this circumstance is also not reliable.24. In the case of B.L. Satish Vs. State of Karnataka (cited supra), Honble Supreme Court has observed that appellant convicted for murder of his grandmother aged about 75 years. Case based on circumstantial evidence. Death was by strangulation between 9.30 a.m. and 1.00 p.m. on 16-6-1994. Only circumstance pitted by prosecution against accused was that on 18-6-1994, he got ornaments, case property of the case, recovered from the house of his maternal grandfather. Single circumstance was hardly sufficient for Criminal Court to reach conclusion that appellant committed the murder. Conviction was liable to be set aside.25. In the present case also, prosecution has failed to prove the circumstances of last seen and motive. The third circumstance in respect of recovery of weapons though proved, it is doubtful. There is no eye witness of the incident.26. There is no dispute about the homicidal death of deceased but prosecution has to prove that appellant is author of crime. In view of the guidelines of Honble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (cited supra), the circumstances are not sufficient against the appellant to convict him for the offences charged against him.27. From the perusal of impugned judgment, it is clear that learned trial Court not recorded specific finding and come to the wrong conclusion. Hence, impugned judgment is liable to be quashed and set aside. In the result, we pass the following order.ORDER (i)
### Response:
1
### Explanation:
22. It is brought on record in the evidence of panch witness of the spot panchanama and panch witness of recovery panchanama of weapon from the accused that two knives were seized at the instance of appellant and one knife was seized on the spot of incident. It is clear from the Chemical Analysers report, Exhibit 22 that only two knives were examined by the Chemical Analyser. What about third knife is not explained by the prosecution. There might be possibility that any other person might have killed deceased and thrown the knife on the spot of incident itself. Possibility cannot be ruled out that the said knife was having blood of deceased. Hence, the recovery of weapons from the appellant cannot be taken as a circumstance against the appellant.First two circumstances, namely, last seen and motive are not proved by the prosecution. Third circumstance recovery of weapons is proved by the prosecution but this circumstance appears to be doubtful because one knife was found on the spot of incident and two knives were recovered at the instance of appellant. Only two knives were examined by the Chemical Analyser. Third knife was not examined by the Chemical Analyser. Therefore, possibility cannot be ruled out that any other person might have killed the deceased and thrown the knife on the spot. Said knife was having blood of deceased cannot not be ruled out. Hence, this circumstance is also not reliable.In the present case also, prosecution has failed to prove the circumstances of last seen and motive. The third circumstance in respect of recovery of weapons though proved, it is doubtful. There is no eye witness of the incident.26. There is no dispute about the homicidal death of deceased but prosecution has to prove that appellant is author of crime. In view of the guidelines of Honble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (cited supra), the circumstances are not sufficient against the appellant to convict him for the offences charged against him.27. From the perusal of impugned judgment, it is clear that learned trial Court not recorded specific finding and come to the wrong conclusion. Hence, impugned judgment is liable to be quashed and set aside.
|
Ti Cycles Of India,Amattur Vs. M.K. Gurumani | In other words the incentive for increased production is generally known as `production bonus. Broadly the basis of remuneration for work in industry is based on two fundamental arrangements, viz. (i) payment by time, and (ii) payment by output. In the former case, a worker is paid a predetermined amount for a specified unit of time which may be an hour, a day, a week, or a month. Under this arrangement, there is no direct control on the amount of work down by the workers except perhaps to a certain extent through supervision so long as he is engaged on tasks specified by the employer. In the latter arrangement, the worker is remunerated according to his output or the output of the group to which he belongs. It may assume complex forms such as "differential piece work" wherein rates of remuneration per unit of output may be either progressive or regressive. There are also other types of remuneration that are not directly dependent on production, like bonuses for regular attendance, length of service, quality of production and elimination of waste, all constituting an area of wage incentives." 12. The First and the Second Five Year Plans also recommended the introduction of incentive to promote more efficient work in the industries with due safeguards to protect the interests of the workers through the guarantee of minimum or fall-back wages and protection against fatigue and undue speed up. In the Second Five Year Plan, it was further made clear that earnings beyond the minimum wage should be necessarily related to results and workers should be consulted before a system of payment by results was introduced in such an establishment. The Third Five Year Plan emphasised the need for higher productivity and reduction in the unit cost of production and put the responsibility on the management to provide the most efficient equipment, correct conditions and methods of work, and adequate training and suitably psychological and material incentives for the workers. One thing is clear from the report and the recommendations made in the various Five Years Plans that there is a base of standard above which extra payment is made for extra production in addition to basic wage. Sometimes, the piece rate work is termed as bonus and such a question was considered by this Court in Daily Partap v. Regional Provident Fund Commissioner, 1998(8) SCC 90 : 1999(1) SCT 216 (SC). The test adopted in that case is that in order to be excluded from `basic wages the payment under such a scheme must have a direct nexus and linkage with the amount of extra output. On an examination of the scheme in that case, it was found that less than normal number of the workmen doing normal work of a shift, production bonus was given according to the deficiency in the numerical strength of workmen and extra output given by any workman in any shift, output of different types of workmen being measured according to the prescribed norms but production bonus not directly linked with the amount of the extra output furnished by the workman concerned but paid at a uniform rate of his normal wages was held to be not bonus at all and the scheme was not a genuine one. It was not the same as incentive bonus scheme. 13. In the present case, the scheme sets out the terms under the settlements. Clause 1.1 sets out the objectives as follows :"The objective of the scheme is to ensure optimum production of high quality, promote safety and cost consciousness and maintain a high level of productivity." 14. Incentive payment is based on two components : group performance index and individual/sectional performance index. It was made clear that no incentive will be payable to workmen on leave, absent, away from duty or no holidays. The minimum performance level is indicated in each sectional incentive table and below which no incentive will be paid for any reason whatsoever. If a person works for more than one group during the month, he will be awarded incentive as per the performance of each group in the respective periods. Clause 9.1 also sets out incentive payment payable under the scheme will not be regarded as wages and, therefore, the payment shall not be taken into account for the purpose of leave wages, overtime wages, in lieu of notice, provident fund contributions, bonus, gratuity or any other allowance. However, this clause is subject to review in case of statutory amendments if any.15. The Authorities were carried away by considering that the bonus is payable on the basis of output equivalent to certain pieces per man-day. But it is made clear in the scheme that each payment will be made not on the basis of pieces of per man-day nor is it a piece rate work for which wages are paid but it is an additional incentive for payment of bonus in respect of extra work done. The measure of extra work done is indicated by pieces and not wages as such that are paid on that basis. It is not that in respect of each piece any wages and paid but altogether if certain number of pieces are produced, additional incentive will be payable at a particular rate. Therefore, the authorities have completely missed scope of the scheme and have incorrectly interpreted the same. Inasmuch as both the High Court and the authorities have incorrectly understood the position in law and have wrongly held that the concept of `wages under the Act would include bonus and that even on facts the scheme would attract Section 4(2) of the Act. Proviso to Section 4(2) of the Act is to the effect that in case of a piece-rated employee, daily wages shall be computed in a particular manner but that is not the rate at which the wages are paid in the present case at all. Therefore, Section 4(2) of the Act is not attracted in the case of the present scheme with which we are concerned. | 1[ds]14. Incentive payment is based on two components : group performance index and individual/sectional performance index. It was made clear that no incentive will be payable to workmen on leave, absent, away from duty or no holidays. The minimum performance level is indicated in each sectional incentive table and below which no incentive will be paid for any reason whatsoever. If a person works for more than one group during the month, he will be awarded incentive as per the performance of each group in the respective periods. Clause 9.1 also sets out incentive payment payable under the scheme will not be regarded as wages and, therefore, the payment shall not be taken into account for the purpose of leave wages, overtime wages, in lieu of notice, provident fund contributions, bonus, gratuity or any other allowance. However, this clause is subject to review in case of statutory amendments if any.15. The Authorities were carried away by considering that the bonus is payable on the basis of output equivalent to certain pieces per man-day. But it is made clear in the scheme that each payment will be made not on the basis of pieces of per man-day nor is it a piece rate work for which wages are paid but it is an additional incentive for payment of bonus in respect of extra work done. The measure of extra work done is indicated by pieces and not wages as such that are paid on that basis. It is not that in respect of each piece any wages and paid but altogether if certain number of pieces are produced, additional incentive will be payable at a particular rate. Therefore, the authorities have completely missed scope of the scheme and have incorrectly interpreted the same. Inasmuch as both the High Court and the authorities have incorrectly understood the position in law and have wrongly held that the concept of `wages under the Act would include bonus and that even on facts the scheme would attract Section 4(2) of the Act. Proviso to Section 4(2) of the Act is to the effect that in case of a piece-rated employee, daily wages shall be computed in a particular manner but that is not the rate at which the wages are paid in the present case at all. Therefore, Section 4(2) of the Act is not attracted in the case of the present scheme with which we are concerned. | 1 | 2,937 | 447 | ### 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:
In other words the incentive for increased production is generally known as `production bonus. Broadly the basis of remuneration for work in industry is based on two fundamental arrangements, viz. (i) payment by time, and (ii) payment by output. In the former case, a worker is paid a predetermined amount for a specified unit of time which may be an hour, a day, a week, or a month. Under this arrangement, there is no direct control on the amount of work down by the workers except perhaps to a certain extent through supervision so long as he is engaged on tasks specified by the employer. In the latter arrangement, the worker is remunerated according to his output or the output of the group to which he belongs. It may assume complex forms such as "differential piece work" wherein rates of remuneration per unit of output may be either progressive or regressive. There are also other types of remuneration that are not directly dependent on production, like bonuses for regular attendance, length of service, quality of production and elimination of waste, all constituting an area of wage incentives." 12. The First and the Second Five Year Plans also recommended the introduction of incentive to promote more efficient work in the industries with due safeguards to protect the interests of the workers through the guarantee of minimum or fall-back wages and protection against fatigue and undue speed up. In the Second Five Year Plan, it was further made clear that earnings beyond the minimum wage should be necessarily related to results and workers should be consulted before a system of payment by results was introduced in such an establishment. The Third Five Year Plan emphasised the need for higher productivity and reduction in the unit cost of production and put the responsibility on the management to provide the most efficient equipment, correct conditions and methods of work, and adequate training and suitably psychological and material incentives for the workers. One thing is clear from the report and the recommendations made in the various Five Years Plans that there is a base of standard above which extra payment is made for extra production in addition to basic wage. Sometimes, the piece rate work is termed as bonus and such a question was considered by this Court in Daily Partap v. Regional Provident Fund Commissioner, 1998(8) SCC 90 : 1999(1) SCT 216 (SC). The test adopted in that case is that in order to be excluded from `basic wages the payment under such a scheme must have a direct nexus and linkage with the amount of extra output. On an examination of the scheme in that case, it was found that less than normal number of the workmen doing normal work of a shift, production bonus was given according to the deficiency in the numerical strength of workmen and extra output given by any workman in any shift, output of different types of workmen being measured according to the prescribed norms but production bonus not directly linked with the amount of the extra output furnished by the workman concerned but paid at a uniform rate of his normal wages was held to be not bonus at all and the scheme was not a genuine one. It was not the same as incentive bonus scheme. 13. In the present case, the scheme sets out the terms under the settlements. Clause 1.1 sets out the objectives as follows :"The objective of the scheme is to ensure optimum production of high quality, promote safety and cost consciousness and maintain a high level of productivity." 14. Incentive payment is based on two components : group performance index and individual/sectional performance index. It was made clear that no incentive will be payable to workmen on leave, absent, away from duty or no holidays. The minimum performance level is indicated in each sectional incentive table and below which no incentive will be paid for any reason whatsoever. If a person works for more than one group during the month, he will be awarded incentive as per the performance of each group in the respective periods. Clause 9.1 also sets out incentive payment payable under the scheme will not be regarded as wages and, therefore, the payment shall not be taken into account for the purpose of leave wages, overtime wages, in lieu of notice, provident fund contributions, bonus, gratuity or any other allowance. However, this clause is subject to review in case of statutory amendments if any.15. The Authorities were carried away by considering that the bonus is payable on the basis of output equivalent to certain pieces per man-day. But it is made clear in the scheme that each payment will be made not on the basis of pieces of per man-day nor is it a piece rate work for which wages are paid but it is an additional incentive for payment of bonus in respect of extra work done. The measure of extra work done is indicated by pieces and not wages as such that are paid on that basis. It is not that in respect of each piece any wages and paid but altogether if certain number of pieces are produced, additional incentive will be payable at a particular rate. Therefore, the authorities have completely missed scope of the scheme and have incorrectly interpreted the same. Inasmuch as both the High Court and the authorities have incorrectly understood the position in law and have wrongly held that the concept of `wages under the Act would include bonus and that even on facts the scheme would attract Section 4(2) of the Act. Proviso to Section 4(2) of the Act is to the effect that in case of a piece-rated employee, daily wages shall be computed in a particular manner but that is not the rate at which the wages are paid in the present case at all. Therefore, Section 4(2) of the Act is not attracted in the case of the present scheme with which we are concerned.
### Response:
1
### Explanation:
14. Incentive payment is based on two components : group performance index and individual/sectional performance index. It was made clear that no incentive will be payable to workmen on leave, absent, away from duty or no holidays. The minimum performance level is indicated in each sectional incentive table and below which no incentive will be paid for any reason whatsoever. If a person works for more than one group during the month, he will be awarded incentive as per the performance of each group in the respective periods. Clause 9.1 also sets out incentive payment payable under the scheme will not be regarded as wages and, therefore, the payment shall not be taken into account for the purpose of leave wages, overtime wages, in lieu of notice, provident fund contributions, bonus, gratuity or any other allowance. However, this clause is subject to review in case of statutory amendments if any.15. The Authorities were carried away by considering that the bonus is payable on the basis of output equivalent to certain pieces per man-day. But it is made clear in the scheme that each payment will be made not on the basis of pieces of per man-day nor is it a piece rate work for which wages are paid but it is an additional incentive for payment of bonus in respect of extra work done. The measure of extra work done is indicated by pieces and not wages as such that are paid on that basis. It is not that in respect of each piece any wages and paid but altogether if certain number of pieces are produced, additional incentive will be payable at a particular rate. Therefore, the authorities have completely missed scope of the scheme and have incorrectly interpreted the same. Inasmuch as both the High Court and the authorities have incorrectly understood the position in law and have wrongly held that the concept of `wages under the Act would include bonus and that even on facts the scheme would attract Section 4(2) of the Act. Proviso to Section 4(2) of the Act is to the effect that in case of a piece-rated employee, daily wages shall be computed in a particular manner but that is not the rate at which the wages are paid in the present case at all. Therefore, Section 4(2) of the Act is not attracted in the case of the present scheme with which we are concerned.
|
Power Control Appliances Vs. Sumeet Machines Pvt. Ltd | the materials on record as they now exist to decide the plea of honest and concurrent user or acquiescence. The learned Single Judge in paragraph 18 of his judgment reported in observes "A careful perusal of the above-referred documents in particular along with other voluminous documents, clinch the fact that Smt. Maduri Mathur, mother of the deponents in the affidavits filed in support of the applications, as well as the counter affidavit, got the trade mark SUMEET registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs improved the appliances on par with the modem technology and along with other members of the family, viz., husband, sons and daughters was able to start different business concerns as specifically pleaded in the affidavit and reply affidavits and by entering into various agreements among themselves and by remaining as share-holders and directors in the companies engaged in manufacturing the various domestic power operated machines like mixies, washing machines and so on by using the trade name marketed SUMEET mixies in various categories and numbers. It has to be seen that during the said sojourn. Thiru Ajay Prakash Mathur, the present Managing Director of the first respondent was also the director of the plaintiffs company previously and still continuing as shareholder and that during 1984, the first defendant company was incorporated as private limited company under the Companies Act and in adopting the name SUMEET, his mother Smt. Madhuri Mathur as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that Smt. Madhuri Mathurs family including her husband, daughter, two sons and other family members were directly concerned and involved in all of their sister concerns including the first respondent company and have been engaged in manufacturing the various types of Sumeet home appliances and power operation machines and being marketed through as common distributor, viz., M/s. Reprographers and Engineers, Madras and all of their accounts were being audited by one and the same auditors consumed and that even to provide the working capital of the first respondent company being run by Thiru Ajay Prakash Mathur it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs. 2, 00, 00, 000/- in the Bank of Hyderabad. All virtually go to show that each and everyone in the family of Smt. Madhuri Mathur having involved in almost all the companies incorporated under the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies products under the registered trade name and mark, SUMEET and that accordingly, they are being marketed through the company distributor." 40. In paragraphs 19 & 20 of the impugned judgment the learned Judge refers to the documents filed by the Respondent. None of these documents throw any light as to the manufacture. It might be that the first respondent was marketing, having regard to the close relationship as mother and son between the plaintiff and the first defendant. This was why the Division Bench remarked "There is some evidence showing that the first defendant has been at least marketing domestic mixers allegedly manufactured by Power Control and Appliances (Bombay), Limited since its incorporation. Whether it actually manufeatured before September 1991, however, is not possible to answer without proper evidence as to the actual manufacturing of the kitchen mixers by the first defendant." * 41. So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the first defendant-respondent. We do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counter affidavit 42. In 1984 the first defendant-company came to be incorporated. This was for the purpose of diversifying the industrial activity of the family group for manufacturing other technical appliances like washing machines, vacuum cleaners etc. But there is nothing on record to show that the first defendant was manufacturing earlier than the alleged violation of trade mark, copyright and design, as stated in the plaint 43. We find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea of quasi-partnership was never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported. | 1[ds]21. Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignments in writting by the proprietor. In this case, there is not even a plea that Mrs. Madhuri Mathuri assigned the copyright in the outer carton, handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act namely, 1957 Act. Therefore, there can be no honest and concurrent user of ones copyright by another. After 1958 Act, the plea of acquiescence is not available at all.So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the firstWe do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counterWe find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the firsthas proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea ofwas never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported. | 1 | 8,874 | 475 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the materials on record as they now exist to decide the plea of honest and concurrent user or acquiescence. The learned Single Judge in paragraph 18 of his judgment reported in observes "A careful perusal of the above-referred documents in particular along with other voluminous documents, clinch the fact that Smt. Maduri Mathur, mother of the deponents in the affidavits filed in support of the applications, as well as the counter affidavit, got the trade mark SUMEET registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs improved the appliances on par with the modem technology and along with other members of the family, viz., husband, sons and daughters was able to start different business concerns as specifically pleaded in the affidavit and reply affidavits and by entering into various agreements among themselves and by remaining as share-holders and directors in the companies engaged in manufacturing the various domestic power operated machines like mixies, washing machines and so on by using the trade name marketed SUMEET mixies in various categories and numbers. It has to be seen that during the said sojourn. Thiru Ajay Prakash Mathur, the present Managing Director of the first respondent was also the director of the plaintiffs company previously and still continuing as shareholder and that during 1984, the first defendant company was incorporated as private limited company under the Companies Act and in adopting the name SUMEET, his mother Smt. Madhuri Mathur as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that Smt. Madhuri Mathurs family including her husband, daughter, two sons and other family members were directly concerned and involved in all of their sister concerns including the first respondent company and have been engaged in manufacturing the various types of Sumeet home appliances and power operation machines and being marketed through as common distributor, viz., M/s. Reprographers and Engineers, Madras and all of their accounts were being audited by one and the same auditors consumed and that even to provide the working capital of the first respondent company being run by Thiru Ajay Prakash Mathur it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs. 2, 00, 00, 000/- in the Bank of Hyderabad. All virtually go to show that each and everyone in the family of Smt. Madhuri Mathur having involved in almost all the companies incorporated under the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies products under the registered trade name and mark, SUMEET and that accordingly, they are being marketed through the company distributor." 40. In paragraphs 19 & 20 of the impugned judgment the learned Judge refers to the documents filed by the Respondent. None of these documents throw any light as to the manufacture. It might be that the first respondent was marketing, having regard to the close relationship as mother and son between the plaintiff and the first defendant. This was why the Division Bench remarked "There is some evidence showing that the first defendant has been at least marketing domestic mixers allegedly manufactured by Power Control and Appliances (Bombay), Limited since its incorporation. Whether it actually manufeatured before September 1991, however, is not possible to answer without proper evidence as to the actual manufacturing of the kitchen mixers by the first defendant." * 41. So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the first defendant-respondent. We do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counter affidavit 42. In 1984 the first defendant-company came to be incorporated. This was for the purpose of diversifying the industrial activity of the family group for manufacturing other technical appliances like washing machines, vacuum cleaners etc. But there is nothing on record to show that the first defendant was manufacturing earlier than the alleged violation of trade mark, copyright and design, as stated in the plaint 43. We find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea of quasi-partnership was never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.
### Response:
1
### Explanation:
21. Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignments in writting by the proprietor. In this case, there is not even a plea that Mrs. Madhuri Mathuri assigned the copyright in the outer carton, handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act namely, 1957 Act. Therefore, there can be no honest and concurrent user of ones copyright by another. After 1958 Act, the plea of acquiescence is not available at all.So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the firstWe do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counterWe find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the firsthas proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea ofwas never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.
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Smt. Ratni Devi & Anr Vs. Chief Commissioner, Delhi & Ors | Amendment and Validation Act with retrospective effect. The validity of the Amending Act has been upheld by this Court in Udai Ram Sharma v. Union of India (1968) 3 S. C. R. 41(AIR 1968 SC 1138 ) and reaffirmed in Aflatoons case (supra).4. The contention that piecemeal acquisition under Notification dated 13 November, 1969 under Section 4 of the Act is bad is really a challenge to the adequacy of compensation under Section 23 of the Act. The Act is protected under Article 31 (5) of the Constitution. Where acquisition is for public purpose reasonableness is presumed for such public purpose. The challenge under Art. 19 of the Constitution which, according to the petitioners and the appellants, is directed as a result of the Bank Nationalisation case (1970) 3 SCR 530 = (AIR 1970 SC 564 ), can be restricted to procedural reasonableness.5. The Government set up the Town Planning Organisation in 1955 which prepared an interim general plan in 1956 for Delhi. The influx of displaced persons after the partition of the country, the growth of slums, the problems of over crowding, insanitation, traffic hazards, sub-standard construction and lack of proper civic amenities led the Government to take effective measures to ensure the orderly and planned development of the city. This planning is to provide for different classes of people who have to live and work in the city of Delhi.6. The plan has to provide for bona fide requirements of the public for residential, industrial and commercial purposes, and to ensure healthy and properly planned development of Delhi, on the basis of the studies made by the Town Planning experts. The Government decided to acquire 34070 acres of land in and around the city, develop and then lease out the same on a no-profit no loss basis. With this public purpose the Government issued a notification on 13 November, 1959 under Sec. 4 of the Act.7. The Draft Master Plan giving the detailed rules and regulations in respect of the "land use" and allied matters, was published in July, 1960. In order to meet the requirements of the plan, the Government issued another notification for a further acquisition of about 16000 acres in October, 1961.8. On 22 October, 1960 the Government of India issued a notification under Section 6 of the Act. The declaration was that specified land was required to be taken at public expense for a public purpose, viz., the Planned Development of Delhi.9. The main contention of the petitioners and the appellants is that compensation which is to be paid with reference to the value of the property on the date of the notification is an unreasonable restriction to hold and dispose of property. It was submitted that compensation should be paid with reference to the value of the property on the date possession of the property was taken. This question has been answered in the judgment in Aflatoons case (supra). Mathew, J. speaking for the Court said that Article 31 (5) precludes such a challenge. Further, Section 4 (3) of the Land Acquisition Amendment and Validation Act, 1967 provided for payment of interest at 6 per cent of the market value after the expiry of three years from the date of the notification under Section 4 to the date of payment of compensation. Again, Section 24 of the Act provides that any outlay or improvement on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification shall not be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.10. In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics." | 0[ds]Further, Section 4 (3) of the Land Acquisition Amendment and Validation Act, 1967 provided for payment of interest at 6 per cent of the market value after the expiry of three years from the date of the notification under Section 4 to the date of payment of compensation. Again, Section 24 of the Act provides that any outlay or improvement on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification shall not be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics.In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory | 0 | 1,257 | 973 | ### 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:
Amendment and Validation Act with retrospective effect. The validity of the Amending Act has been upheld by this Court in Udai Ram Sharma v. Union of India (1968) 3 S. C. R. 41(AIR 1968 SC 1138 ) and reaffirmed in Aflatoons case (supra).4. The contention that piecemeal acquisition under Notification dated 13 November, 1969 under Section 4 of the Act is bad is really a challenge to the adequacy of compensation under Section 23 of the Act. The Act is protected under Article 31 (5) of the Constitution. Where acquisition is for public purpose reasonableness is presumed for such public purpose. The challenge under Art. 19 of the Constitution which, according to the petitioners and the appellants, is directed as a result of the Bank Nationalisation case (1970) 3 SCR 530 = (AIR 1970 SC 564 ), can be restricted to procedural reasonableness.5. The Government set up the Town Planning Organisation in 1955 which prepared an interim general plan in 1956 for Delhi. The influx of displaced persons after the partition of the country, the growth of slums, the problems of over crowding, insanitation, traffic hazards, sub-standard construction and lack of proper civic amenities led the Government to take effective measures to ensure the orderly and planned development of the city. This planning is to provide for different classes of people who have to live and work in the city of Delhi.6. The plan has to provide for bona fide requirements of the public for residential, industrial and commercial purposes, and to ensure healthy and properly planned development of Delhi, on the basis of the studies made by the Town Planning experts. The Government decided to acquire 34070 acres of land in and around the city, develop and then lease out the same on a no-profit no loss basis. With this public purpose the Government issued a notification on 13 November, 1959 under Sec. 4 of the Act.7. The Draft Master Plan giving the detailed rules and regulations in respect of the "land use" and allied matters, was published in July, 1960. In order to meet the requirements of the plan, the Government issued another notification for a further acquisition of about 16000 acres in October, 1961.8. On 22 October, 1960 the Government of India issued a notification under Section 6 of the Act. The declaration was that specified land was required to be taken at public expense for a public purpose, viz., the Planned Development of Delhi.9. The main contention of the petitioners and the appellants is that compensation which is to be paid with reference to the value of the property on the date of the notification is an unreasonable restriction to hold and dispose of property. It was submitted that compensation should be paid with reference to the value of the property on the date possession of the property was taken. This question has been answered in the judgment in Aflatoons case (supra). Mathew, J. speaking for the Court said that Article 31 (5) precludes such a challenge. Further, Section 4 (3) of the Land Acquisition Amendment and Validation Act, 1967 provided for payment of interest at 6 per cent of the market value after the expiry of three years from the date of the notification under Section 4 to the date of payment of compensation. Again, Section 24 of the Act provides that any outlay or improvement on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification shall not be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.10. In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics."
### Response:
0
### Explanation:
Further, Section 4 (3) of the Land Acquisition Amendment and Validation Act, 1967 provided for payment of interest at 6 per cent of the market value after the expiry of three years from the date of the notification under Section 4 to the date of payment of compensation. Again, Section 24 of the Act provides that any outlay or improvement on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification shall not be taken into consideration by the Court in awarding compensation. Therefore, any outlay or improvement made with the sanction of the Collector after the date of the notification will be taken into consideration in awarding compensation.In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics.In the Bank Nationalisation case, (AIR 1970 SC 564 ) (supra) the acquisition of property was required to pass the test of Article 19 (5) on the question of procedural reasonableness. If for instance a Tribunal is authorised to determine compensation without hearing the owner it would be exposed to vice. Section 23 of the Act does not deal with procedure, and, therefore, is not exposed to any challenge on the ground of procedural unreasonableness.11. Declaration under Sec. 6 of the Act pursuant to the notification under Section 4 of the Act have been held by this Court to be valid for acquiring the notified land for the planned development of Delhi. In Aflatoons case. (AIR 1974 SC 2077 ) (supra) this Court held that the planned development of Delhi is a public purpose. In Aflatoons case (supra) it was held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. The notification which was for the acquisition of over 30,000 acres of land in the very nature of things could not specify each particular purpose and, therefore, the planned development of Delhi was of sufficient particularity.12. In Aflatoons case, (AIR 1974 SC 2077 ) (supra) public purpose with regard to the planned development of Delhi has been upheld. In Aflatoons case (supra) the petitions which were filed in the year 1972 were held to be dilatory. The reason is that a valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. In the present case, Section 4 notification in the year 1959 was followed by notification under Sec. 6 of the Act in July, 1960 and again in October, 1961. In Aflatoons case (supra) it was said that "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory
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THE BHARAT COKING COAL LTD. & ORS Vs. AMR DEV PRABHA & ORS | bidders. Such, notification of closure of the auction, even though generated during the period of interruption in connectivity of the bidders with the server, should have been declared as null and void before restarting the auction process. Even, BCCL did not demand any report from C1 India Pvt. Limited for the interruption period so as to take a call before proceeding further for restart of the reverse auction process. Further, considering that during this period BCCL was aware of the connectivity problem being faced by the bidders, it should have exercised intense real time monitoring which have not been done. Failure to do so is a reflection of the fact the adequate incident management system was not put in place by the service provider M/s. C1 India Pvt. Ltd. to handle such eventuality effectively. While there was lack of control and supervision on part of BCCL, however, the Committee has not come across any evidence suggesting mala-fide on their part. As regards to C1 India Pvt. Ltd., their conduct has been found to be far from satisfactory. 46. We do not deem it necessary to venture into the existence of technical problems of limited bandwidth, for the same is a question of fact. However, given the concurrent finding of the second IEM, CERT- In, TCL, as well as the CVC, we feel that the Division Bench erred in holding that there were no technical difficulties. Furthermore, such a conclusion is at odds with subsequent occurrences. A finding that there were no internet problems implies that no other bidder deemed it appropriate to counter the bid of Rs 2345 crores offered by Respondent No. 1 at 12:33PM and that it was the competitively determined lowest price. However, it is obvious that minutes into the resumption of the auction process bids started coming in and more than a dozen bids were received subsequently, with the last bid of Rs 2043 crores having been made mere seconds before closure of the auction at 7:27PM. 47. With regard to other allegations concerning condonation of Respondent No. 6s delay in producing guarantees, we would only reiterate that there is no prohibition in law against public authorities granting relaxations for bona fide reasons. In Shobikaa Impex (P) Ltd. v. Central Medical Services Society (2016) 16 SCC 233 , it has been noted that: … the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 48. Even if there had been a minor deviation from explicit terms of the NIT, it would not be sufficient by itself in the absence of mala fide for courts to set aside the tender at the behest of an unsuccessful bidder. (Central Coalfields Ltd v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 ) This is because notice must be kept of the impact of overturning an executive decision and its impact on the larger public interest in the form of cost overruns or delays. 49. There is also no need to venture into questions concerning quantum of extension of time. It is clear that the same message was communicated by CI–India to all, stating that the auction process would be extended by a period equivalent to the time between closure of auction at 1:03PM and resumption at 2:30PM. Not only did such uniform communication put all bidders on an equal footing, but there was no possibility of any confusion given the clear wordings of the email. When it is not the case of Respondent No. 1 that they thought that auction would close at 7:35PM and hence they were taken by surprise at the early closure, nor did they in fact highlight or object to such interpretation over the course of the resumed auction process, the question is moot and a finding ought not to be given on it. 50. Additionally, we also do not see merit in the justification for delay in filing writ proffered by the first respondent. It is claimed that the cause of action arose when Respondent No. 6 failed to submit guarantees within a period of 28 days. However, we do not see how that would allow AMR-Dev Prabha to challenge the entire process of auction, or overcome the settled legal principle of privity of contract between Respondent No. 6 and the appellant. (III) Deference to authoritys interpretation 51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. 52. In the present facts, it is clear that BCCL and C1-India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818 at ¶ 15.). 53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality. CONCLUSION | 1[ds]36. In the present case, although it is clear that the Division Bench of the High Court was cognizant of these principles surrounding scope of judicial review, however, it failed to effectively evaluate whether larger public interest was being affected. On the contrary, we feel that the interest of Respondent No. 1 was purely private and monetary in nature37. First, AMR-Dev Prabhas initial prayer sought to nullify the award of contract, which if granted, would have increased the sums payable by the State instrumentality from Rs 2043 crores to Rs 2345 crores. Second, the conduct of Respondent No. 1 over the course of the present proceedings, as highlighted by the appellants, further bolsters the lack of public interest. Whereas initially the first respondent was seeking quashing of the LOA issued to Respondent No. 6 owing to arbitrariness on part of BCCL and on the ground that sanctity of the auction process had been violated; later, before the Division Bench, Respondent No. 1 sought to make a new offer of Rs 1950 Crores. This shows how AMR-Dev Prabhas priority was only to secure the contract and not to uphold the law or protect larger public interest38. Even otherwise, granting such a prayer means that Respondent No. 1 would have gotten a special opportunity of negotiation, to the detriment of all other participants, which would probably be a more egregious violation of equality envisaged under Article 14 than the procedural adherence which they were initially seeking to protect39. Additionally, we are not impressed with the first respondents argument that there is a certain public interest at stake whenever the public exchequer is involved. There are various factors in play, in addition to mere bidding price, like technical ability and timely completion which must be kept in mind. And adopting such interpretation would permanently blur the line between contractual disputes involving the State and those affecting public law40. Further, the first respondent has failed to demonstrate which public law right it was claiming. The main thrust of AMR-Dev Prabhas case has been on the fact that at 1:03PM on 05.05.2015 it was declared the lowest bidder (or L-1). However, being declared the L-1 bidder does not bestow upon any entity a public law entitlement to award of the contract,However, being declared the L-1 bidder does not bestow upon any entity a public law entitlement to award of the contract,as noted in Maa Binda Express Carrier v. North-East Frontier Railway (2014) 3 SCC 760 :8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process41. Instead, precedent laid down by this Court in Master Marine Services (P) Ltd v. Metcalfe & Hodg Kinson (P) Ltd, (2005) 6 SCC 138 illustrates that if a prayer for re-bidding is on account of a desire to get a better price, then involvement of Article 14 of the Constitution would not be made out42. Further, regular recourse was made over the course of proceedings by learned senior counsel for the first respondent on terms of the NIT. Findings in the impugned order too were based upon disputed interpretation of such contractual terms. Thus, it is clear that there was neither any public law right of the first respondent which was affected, nor was there any public interest sought to be furthered(II) Infirmities in the auction process43. On merits also, we do not feel that the impugned order is correct in its conclusion that there were substantial procedural lapses on part of BCCL and C1-India which amount to arbitrariness, and ought to be remedied by way of judicial review44. Instead, having the benefit of a detailed inquiry report of the Central Vigilance Commission ( CVC), we are of the firm opinion thatboth the appellant and Respondent No. 4 acted in a bona fide manner and as per their abilities. Even if it is true that BCCL could have assumed more responsibility and C1-India could have exercised a more proactive role in checking for internet issues, yet the possibility of improvement cant be a ground for striking down an authoritys action. Additionally, no allegation of the decisions being accentuated by illegal gratification, or otherwise being fraudulent or contrary to a statute have either been clearly made or established46. We do not deem it necessary to venture into the existence of technical problems of limited bandwidth, for the same is a question of fact. However, given the concurrent finding of the second IEM, CERT- In, TCL, as well as the CVC, we feel that the Division Bench erred in holding that there were no technical difficulties. Furthermore, such a conclusion is at odds with subsequent occurrences. A finding that there were no internet problems implies that no other bidder deemed it appropriate to counter the bid of Rs 2345 crores offered by Respondent No. 1 at 12:33PM and that it was the competitively determined lowest price. However, it is obvious that minutes into the resumption of the auction process bids started coming in and more than a dozen bids were received subsequently, with the last bid of Rs 2043 crores having been made mere seconds before closure of the auction at 7:27PM47. With regard to other allegations concerning condonation of Respondent No. 6s delay in producing guarantees, we would only reiterate that there is no prohibition in law against public authorities granting relaxations for bona fide reasons48. Even if there had been a minor deviation from explicit terms of the NIT, it would not be sufficient by itself in the absence of mala fide for courts to set aside the tender at the behest of an unsuccessful bidder. (Central Coalfields Ltd v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 ) This is because notice must be kept of the impact of overturning an executive decision and its impact on the larger public interest in the form of cost overruns or delays49. There is also no need to venture into questions concerning quantum of extension of time. It is clear that the same message was communicated by CI–India to all, stating that the auction process would be extended by a period equivalent to the time between closure of auction at 1:03PM and resumption at 2:30PM. Not only did such uniform communication put all bidders on an equal footing, but there was no possibility of any confusion given the clear wordings of the email. When it is not the case of Respondent No. 1 that they thought that auction would close at 7:35PM and hence they were taken by surprise at the early closure, nor did they in fact highlight or object to such interpretation over the course of the resumed auction process, the question is moot and a finding ought not to be given on it50. Additionally, we also do not see merit in the justification for delay in filing writ proffered by the first respondent. It is claimed that the cause of action arose when Respondent No. 6 failed to submit guarantees within a period of 28 days. However, we do not see how that would allow AMR-Dev Prabha to challenge the entire process of auction, or overcome the settled legal principle of privity of contract between Respondent No. 6 and the appellant(III) Deference to authoritys interpretation51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes52. In the present facts, it is clear that BCCL and C1-India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818 at ¶ 15.)53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality32. In cases where a constitutional right is infringed, writs would ordinarily be the appropriate remedy. In tender matters, such can be either when a party seeks to hold the State to its duty of treating all persons equally or prohibit it from acting arbitrarily; or when executive actions or legislative instruments are challenged for being in contravention to the freedom of carrying on trade and commerce. However, writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources. | 1 | 7,084 | 1,961 | ### 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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bidders. Such, notification of closure of the auction, even though generated during the period of interruption in connectivity of the bidders with the server, should have been declared as null and void before restarting the auction process. Even, BCCL did not demand any report from C1 India Pvt. Limited for the interruption period so as to take a call before proceeding further for restart of the reverse auction process. Further, considering that during this period BCCL was aware of the connectivity problem being faced by the bidders, it should have exercised intense real time monitoring which have not been done. Failure to do so is a reflection of the fact the adequate incident management system was not put in place by the service provider M/s. C1 India Pvt. Ltd. to handle such eventuality effectively. While there was lack of control and supervision on part of BCCL, however, the Committee has not come across any evidence suggesting mala-fide on their part. As regards to C1 India Pvt. Ltd., their conduct has been found to be far from satisfactory. 46. We do not deem it necessary to venture into the existence of technical problems of limited bandwidth, for the same is a question of fact. However, given the concurrent finding of the second IEM, CERT- In, TCL, as well as the CVC, we feel that the Division Bench erred in holding that there were no technical difficulties. Furthermore, such a conclusion is at odds with subsequent occurrences. A finding that there were no internet problems implies that no other bidder deemed it appropriate to counter the bid of Rs 2345 crores offered by Respondent No. 1 at 12:33PM and that it was the competitively determined lowest price. However, it is obvious that minutes into the resumption of the auction process bids started coming in and more than a dozen bids were received subsequently, with the last bid of Rs 2043 crores having been made mere seconds before closure of the auction at 7:27PM. 47. With regard to other allegations concerning condonation of Respondent No. 6s delay in producing guarantees, we would only reiterate that there is no prohibition in law against public authorities granting relaxations for bona fide reasons. In Shobikaa Impex (P) Ltd. v. Central Medical Services Society (2016) 16 SCC 233 , it has been noted that: … the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 48. Even if there had been a minor deviation from explicit terms of the NIT, it would not be sufficient by itself in the absence of mala fide for courts to set aside the tender at the behest of an unsuccessful bidder. (Central Coalfields Ltd v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 ) This is because notice must be kept of the impact of overturning an executive decision and its impact on the larger public interest in the form of cost overruns or delays. 49. There is also no need to venture into questions concerning quantum of extension of time. It is clear that the same message was communicated by CI–India to all, stating that the auction process would be extended by a period equivalent to the time between closure of auction at 1:03PM and resumption at 2:30PM. Not only did such uniform communication put all bidders on an equal footing, but there was no possibility of any confusion given the clear wordings of the email. When it is not the case of Respondent No. 1 that they thought that auction would close at 7:35PM and hence they were taken by surprise at the early closure, nor did they in fact highlight or object to such interpretation over the course of the resumed auction process, the question is moot and a finding ought not to be given on it. 50. Additionally, we also do not see merit in the justification for delay in filing writ proffered by the first respondent. It is claimed that the cause of action arose when Respondent No. 6 failed to submit guarantees within a period of 28 days. However, we do not see how that would allow AMR-Dev Prabha to challenge the entire process of auction, or overcome the settled legal principle of privity of contract between Respondent No. 6 and the appellant. (III) Deference to authoritys interpretation 51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. 52. In the present facts, it is clear that BCCL and C1-India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818 at ¶ 15.). 53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality. CONCLUSION
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was there any public interest sought to be furthered(II) Infirmities in the auction process43. On merits also, we do not feel that the impugned order is correct in its conclusion that there were substantial procedural lapses on part of BCCL and C1-India which amount to arbitrariness, and ought to be remedied by way of judicial review44. Instead, having the benefit of a detailed inquiry report of the Central Vigilance Commission ( CVC), we are of the firm opinion thatboth the appellant and Respondent No. 4 acted in a bona fide manner and as per their abilities. Even if it is true that BCCL could have assumed more responsibility and C1-India could have exercised a more proactive role in checking for internet issues, yet the possibility of improvement cant be a ground for striking down an authoritys action. Additionally, no allegation of the decisions being accentuated by illegal gratification, or otherwise being fraudulent or contrary to a statute have either been clearly made or established46. We do not deem it necessary to venture into the existence of technical problems of limited bandwidth, for the same is a question of fact. However, given the concurrent finding of the second IEM, CERT- In, TCL, as well as the CVC, we feel that the Division Bench erred in holding that there were no technical difficulties. Furthermore, such a conclusion is at odds with subsequent occurrences. A finding that there were no internet problems implies that no other bidder deemed it appropriate to counter the bid of Rs 2345 crores offered by Respondent No. 1 at 12:33PM and that it was the competitively determined lowest price. However, it is obvious that minutes into the resumption of the auction process bids started coming in and more than a dozen bids were received subsequently, with the last bid of Rs 2043 crores having been made mere seconds before closure of the auction at 7:27PM47. With regard to other allegations concerning condonation of Respondent No. 6s delay in producing guarantees, we would only reiterate that there is no prohibition in law against public authorities granting relaxations for bona fide reasons48. Even if there had been a minor deviation from explicit terms of the NIT, it would not be sufficient by itself in the absence of mala fide for courts to set aside the tender at the behest of an unsuccessful bidder. (Central Coalfields Ltd v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 ) This is because notice must be kept of the impact of overturning an executive decision and its impact on the larger public interest in the form of cost overruns or delays49. There is also no need to venture into questions concerning quantum of extension of time. It is clear that the same message was communicated by CI–India to all, stating that the auction process would be extended by a period equivalent to the time between closure of auction at 1:03PM and resumption at 2:30PM. Not only did such uniform communication put all bidders on an equal footing, but there was no possibility of any confusion given the clear wordings of the email. When it is not the case of Respondent No. 1 that they thought that auction would close at 7:35PM and hence they were taken by surprise at the early closure, nor did they in fact highlight or object to such interpretation over the course of the resumed auction process, the question is moot and a finding ought not to be given on it50. Additionally, we also do not see merit in the justification for delay in filing writ proffered by the first respondent. It is claimed that the cause of action arose when Respondent No. 6 failed to submit guarantees within a period of 28 days. However, we do not see how that would allow AMR-Dev Prabha to challenge the entire process of auction, or overcome the settled legal principle of privity of contract between Respondent No. 6 and the appellant(III) Deference to authoritys interpretation51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes52. In the present facts, it is clear that BCCL and C1-India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818 at ¶ 15.)53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality32. In cases where a constitutional right is infringed, writs would ordinarily be the appropriate remedy. In tender matters, such can be either when a party seeks to hold the State to its duty of treating all persons equally or prohibit it from acting arbitrarily; or when executive actions or legislative instruments are challenged for being in contravention to the freedom of carrying on trade and commerce. However, writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources.
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G.D. Zalani Vs. Union Of India | public property or granting its lease, the normal method is auction or calling for tenders so that all intending purchasers/lessees should have an equal opportunity of submitting their bids/ tenders. Even there, there may be exceptional situations where adopting such a course may not be insisted upon. Be that as it may, the case here is altogether different. H.A.L. was trying to improve not only the quantum of production but also its quality and for that purpose looking for an appropriate partner. They went in for the best. It must be remembered that this technology is not therefor the mere asking of it. All the leading drug companies keep their processes and technology a guarded secret. Being businessmen, they like to derive maximum profit for themselves. It is ultimately a matter of bargain. In such cases, all that need be ensured is that the Government or the authority, as the case may be, has acted fairly and has arrived at the best available arrangement in the circumstances. 29. It is then submitted that when the Board of Directors had asked the Managing Director not to agree for a lease amount of less than Rs. 31.68 crores and to report back to the Board the lease amount which M.G.B. is prepared to pay, the Managing Director should have reported back to the Board instead of entering into a MoU for a lesser amount. It is submitted that the Managing Director was bound to and ought to have carried out the instructions of the Board. The Managing Director was trying to over-reach the Board of Directors by several means, one of which was his letter dated May 3, 1994, it is submitted. In reply to this, it is pointed out by the learned Counsel for the respondents that Sri Basu did write to M.G.B. on May 10, 1994 as directed by the Board but that the M.G.B. did not agree to the figure stipulated by the Board (vide M.G.B. letter dated May 17, 1994) and that both these letters were placed before the Board. Be that as it may, once the Government directive was issued, all this controversy lost its relevance.30. It is then argued that the power to give directives is vested by Article 117 in the President alone and that no such directive can be given by the Government of India. It is submitted that the Rules of Business framed by the President of India under Article 77 are relevant only in the case of executive power of the Union and that Article 117 of the Articles of Association of H.A.L. is no part of the executive power of the Union. Accordingly, it is submitted, the authentication of the said directive by the Deputy Secretary to the Government of India is equally incompetent. Now, the directive in this case is issued by the Government of India. The letter says that it was being issued with the approval of the Minister for Chemicals and Fertilisers. There is indeed no reference to the President at all. The question, however, is whether the President in Article 117 of the Articles of Association of H. A.L. means refers only to the President of India and whether it is a power to be exercised by the President personally? We do not think that it would be reasonable to construe Article 117 as suggested by the appellants. The President of India like the Queen of England is a Constitutional Head. (See Rai Sahib Ram Jawaya Kapur & Ors.v. The State of Punjab(1955 (2) SCR 225 ) and Shamsher Singh & Anr. v. State of Punjab(1975 (1) SCR 814 ) H.A.L. is a Government Company. It was really an agency, an instrumentality of Government of India though given a corporate shape. Article 117 is one form of control the Government has over these corporate bodies. In the circumstances, it would be reasonable to understand the expression “President” in Article 117 as referring to the Government of India. To say that this power should be exercised by the President himself is neither practicable nor consistent with the dignity of the President. Of course, while the directive must be expressed in the name of the President but that is ultimately a matter of form, and the form has been held to be mandatory. In this view of the matter, it is unnecessary to consider whether it is open to the appellants to raise this contention. We are, therefore, unable to say that the directive issued is not valid in law or that it was not issued by the Competent Authority. It is not disputed that the directive is binding upon H.A.L. and all its authorities. If so, the corporate identity or corporate existence of H.A.L. is in no way violated by the directive given. It cannot also be stipulated that before giving the directive, the appellants should have been heard. Not only giving of directive was in internal matter between H.A.L. and the Government of India, there was no point in giving notice to SPIC and P.B.G. whose offers were already rejected by the Board once and again after re-evaluation directed by the Government. 31. Lastly, it is argued that in the case of Torrent, the Minister of State had asked the H.A.L. to evaluate its proposal on June 15, 1994 and that without any reference to the said order, the MoU was entered into on June 20, 1994. It is, however, explained by the respondents that the said order of the Minister of State was revised by the Minister for Chemicals and Fertilizers even before the issuance of the directive. Moreover, Torrent having entered the picture very late cannot complain of lack of fuller consideration. It is equally evident that since it was already in the process of selling up its own plant and also because its technology too was that of Biotica of Slovakia, which was already rejected in the case of P.B.G., no useful purpose would be served even by asking a reconsideration of its proposals. | 0[ds]23. It would be evident from the facts narrated above that the Managing Director of H.A.L., Sri A.K. Basu was all out for a technological tie-up with G.B. and with no other. To start with, he sought the permission of the Government of India to go to Holland in August/September, 1993 to discuss and finalise the MoU with M.G.B. While permitting him to go and have discussion there, the Government of India instructed him not to enter into a MoU or to make any commitment since the Government was of the opinion that all the alternative proposals should be examined and a decision taken after examining the merits of each proposal. In the meeting of the Board of Directors of H.A.L. held on September 20, 1993, Sri Basu explained the advantages that will accrue from a tie-up with M.G.B. According to him, it was a lifetime opportunity for H.A.L. which it should not forego. This was his theme throughout in all the Board meetings. (Indeed, in one of the meetings, the Board of Directors found fault with Sri Basu for entering into negotiations with G.B./M.G.B. without its approval. It appears obvious that Sri Basu had taken the permission of only the Government of India for entering into negotiations with G.B./M.G.B. and informed the Board only after his visit to Holland). Finally, when the Board of Directors decided on April 28, 1994 that the lease amount payable by the proposed JVC (to be formed by HAL and M.G.B. with 50% share holding each) should not be less than Rs. 31.68 crores per annum and instructed him accordingly, Sri Basu wrote a letter directly to the Secretary to the Government of India, Ministry of Chemicals and Fertilisers setting out in detail why the Board resolution was not appropriate and why it is not realistic to accept lease amount at that level. It also appears probable that it was at his instance that the Government of India sought the opinion of an expert, viz., Prof. M.M. Sharma. After receiving the opinion of Prof. Sharma, the Government of India gave theto H.A.L., addressed to Shri Basu on June 20, 1994, to enter into a collaboration agreement with M.G.B. in the form of a Joint Venture Company. For the said purpose, the Government of India itself constituted a Committee of three members including the Managing Director, Sri A.K. Basu. On that very day, i.e., 20th June, 1994, negotiations were held and MoU signed between H.A.L. and M.G.B. It does not appear that the Board of Directors of H.A.L. was having any part in the negotiations or in the matter of or entering into the MoU with M.G.B. The MoU was signed by Sri Basu on behalf of the H.A.L. The alacrity with which MoU was signed on the every day on which the Government directive was issued also shows the deep interest the Managing Director had in collaboration with M.G.B. But it is not possible to say beyond this. It is quite likely that Sri Basu was actuated by the best of intentions, that he was of bona fide belief that entering into a technological agreement with M.G.B. (which really meant technical collaboration with G.B. of Holland) was a lifetime opportunity for H.A.L.which it should not forego. It could also be that he was genuinely satisfied that since G.B. is the world leader and has the best technology, it can deliver goods far better than any other foreign company. It is also possible that Sri Basu was for collaboration with M.G.B. for all the wrong reasons. We are not able to say one way or the other. The presumption is that being the Managing Director of H.A.L., he was acting in its best interests. This presumption is not displaced in this case. The fact remains that G.B. is the world leader in Penn-G field. Its technology is one of the best if not the best. It has a 20% share of the world market and has got units all over the world. As against it, the three appellants (we are treating Torrent too on par with SPIC and P.B.G. though as a fact it was not in the picture at the relevant time, as stated hereinbefore) were offering technology either of Cipan or of Biotica of Slovakia and the Brard of Directors of H.A.L. was of the opinion that both of them were not acceptable––Cipan for the reason that its technology was not yet proved at the commercial production level and Biotica of Slovakia on the ground that its technology was no superior to the technology presently employed by H.A.L. Among the seven world leaders mentioned hereinbefore, both Cipan and Biotica of Slovakia are not to be found. Another Indian Company, Ranbaxy (not a writ petitioner or appellant before us) offered to obtain the technology of Hoescht (one of the seven world leaders) but it did not pursue its offer and failed to submit its proposals. This left only M.G.B. in the field, as stated by the Sub-Committee. In other words, there was, unfortunately not much of a choice. In this connection, it must be emphasised that rejection of Cipan and Biotica of Slovakia technology was not by Sri Basu, but by the Board of Directors––and that too not once but twice.24. There is yet another fact. Most of these companies keep their processes and technology a guarded secret. More better the technology, more fervently it is guarded. And HAL needed a technology superior to the one it was already having. Not only it was producing only 55% of its installed capacity, its cost of production was far higher than what it ought to be. It is true, cost of production could have been reduced to some extent by rationalising and streamlining the working methods (as pointed out by the Sub-Committee in its report) but the more important need was to increase the yield from the strains and achieve full capacity production. On account of efforts made over the years, production had increased to some extent but it was still way behind its installed capacity, i.e. fill capacity production. Thus, it was not a case of merely leasing out a Government company but a case where the Government company was trying to obtain the best possible technology. In such matters, sights have to be set far into the future and arrive at a reasonable prognosis keeping in mind the best interests of the company. Floating of tenders may not have been a proper method to adopt in these circumstances. In any event, among the available technologies, not only has the G.B. the best technology, it was the only source available, the other having been rejected as already stated. Probably it is for this reason that the Government of India gave the directive on 20th June, 1994. In the above circumstances and, on the present material, we cannot say that Sri Basu was either actuated by mala fides or that he was acting out of extraneousthat reason it was perceived more as a competitor rather than as a probable partner. Secondly, its technology was as yet unproven at commercial production level, which meant that there was an element of risk involved in adopting that (Cipan) technology. Rejection of its proposals by the Board––and not by the Managing Director, Sri Basu, as emphasised hereinbefore cannot, therefore, he held to be either ‘noor mechanical rejection. No mala fides are attributed to the Board. In thethe complaint of not furnishing full information or not giving inspection of the HAL plant cannot be said to be motivated or arbitrary. We do not also think it necessary to refer to the correspondence that passed between SPIC and Sri A.K. Basu––to which our attention has been drawn by Sri Raval––for the reason that rejection of proposals of SPIC was not by Sri Basu but by the Board of Directors. The board proceedings referred to hereinbefore do establish that Board was acting in its own independent judgment in these matters and was not being led away by the opinion of Sri Basu. So far as P.B.G. is concerned, it appears that it did not disclose the name of its foreign partner in the first instance; it did so only later. Moreover, the letter of Biotica of Slovakia, (P.B.G.foreign partner) was found to be vague. Above all, the Board of Directors of H.A.L. were satisfied that the technology of Biotica of Slovakia is also not one of theseven leading manufactures of Penn-G and, therefore, the Board thought that there was no point in pursuing the proposals of P.B.G. It cannot be said that it was not a fair decision nor can it be insisted that before rejecting the proposals of SPIC and P.B.G., the Board of Directors ought to have obtained technical opinion or the opinion of an expert committee. The representatives of these two companies were heard in person by the Board and their presentation fully noted and considered. More cannot be insisted upon as a matter of law or in the facts of this case. Now coming to Torrent, it entered the picture quite late. Its foreign partner is the very same Biotica of Slovakia. (It needs to be stressed that each of the appellants, as also M.G.B., were offering the technology of their respective foreign partners and hence, the comparative merits of these foreign partners becomes relevant). The Complainant of not affording a proper opportunity to put forward their proposal made by Torrent, cannot, therefore, beopinion of Prof. Sharma must also have weighed with the Government in deciding to go in for JVC with MGB participation. It should be remembered that the Board of Directors of HAL had also decided to have a technological collaboration with MGB. It would have been a different matter if the Board of Directors had agreed with the recommendation of the Sub-Committee that there is tremendous scope of improving and achieving higher level of efficiency and cost reduction in the operations of HAL itself with the existing technology and without obtaining any foreign technology and that the HAL should first try that course. On the other hand, the Board decided in its meeting held on April 28, 1994 that HAL should go in for technological collaboration with M.G.B. in the form of a J.V.C. Yet another fact is that negotiations with M.G.B. were held on June 20, 1994 not by Sri A.K. Basu alone but a Committee of three members of whom one appears to have been a member of the Sub-Committee as well.28. We must reiterate that this was not simple case of granting of lease of a Government company, in which case the Court would have been justified in insisting upon the authorities following a fair method consistent with Article 14, i.e., by calling for tenders. We agree that while selling public property or granting its lease, the normal method is auction or calling for tenders so that all intending purchasers/lessees should have an equal opportunity of submitting their bids/ tenders. Even there, there may be exceptional situations where adopting such a course may not be insisted upon. Be that as it may, the case here is altogether different. H.A.L. was trying to improve not only the quantum of production but also its quality and for that purpose looking for an appropriate partner. They went in for the best. It must be remembered that this technology is not therefor the mere asking of it. All the leading drug companies keep their processes and technology a guarded secret. Being businessmen, they like to derive maximum profit for themselves. It is ultimately a matter of bargain. In such cases, all that need be ensured is that the Government or the authority, as the case may be, has acted fairly and has arrived at the best available arrangement in thedo not think that it would be reasonable to construe Article 117 as suggested by the appellants. The President of India like the Queen of England is a Constitutional Head. (See Rai Sahib Ram Jawaya Kapur & Ors.v. The State of Punjab(1955 (2) SCR 225 ) and Shamsher Singh & Anr. v. State of Punjab(1975 (1) SCR 814 ) H.A.L. is a Government Company. It was really an agency, an instrumentality of Government of India though given a corporate shape. Article 117 is one form of control the Government has over these corporate bodies. In the circumstances, it would be reasonable to understand the expressionin Article 117 as referring to the Government of India. To say that this power should be exercised by the President himself is neither practicable nor consistent with the dignity of the President. Of course, while the directive must be expressed in the name of the President but that is ultimately a matter of form, and the form has been held to be mandatory. In this view of the matter, it is unnecessary to consider whether it is open to the appellants to raise this contention. We are, therefore, unable to say that the directive issued is not valid in law or that it was not issued by the Competent Authority. It is not disputed that the directive is binding upon H.A.L. and all its authorities. If so, the corporate identity or corporate existence of H.A.L. is in no way violated by the directive given. It cannot also be stipulated that before giving the directive, the appellants should have been heard. Not only giving of directive was in internal matter between H.A.L. and the Government of India, there was no point in giving notice to SPIC and P.B.G. whose offers were already rejected by the Board once and again after re-evaluation directed by theTorrent having entered the picture very late cannot complain of lack of fuller consideration. It is equally evident that since it was already in the process of selling up its own plant and also because its technology too was that of Biotica of Slovakia, which was already rejected in the case of P.B.G., no useful purpose would be served even by asking a reconsideration of its proposals. | 0 | 9,217 | 2,606 | ### 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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public property or granting its lease, the normal method is auction or calling for tenders so that all intending purchasers/lessees should have an equal opportunity of submitting their bids/ tenders. Even there, there may be exceptional situations where adopting such a course may not be insisted upon. Be that as it may, the case here is altogether different. H.A.L. was trying to improve not only the quantum of production but also its quality and for that purpose looking for an appropriate partner. They went in for the best. It must be remembered that this technology is not therefor the mere asking of it. All the leading drug companies keep their processes and technology a guarded secret. Being businessmen, they like to derive maximum profit for themselves. It is ultimately a matter of bargain. In such cases, all that need be ensured is that the Government or the authority, as the case may be, has acted fairly and has arrived at the best available arrangement in the circumstances. 29. It is then submitted that when the Board of Directors had asked the Managing Director not to agree for a lease amount of less than Rs. 31.68 crores and to report back to the Board the lease amount which M.G.B. is prepared to pay, the Managing Director should have reported back to the Board instead of entering into a MoU for a lesser amount. It is submitted that the Managing Director was bound to and ought to have carried out the instructions of the Board. The Managing Director was trying to over-reach the Board of Directors by several means, one of which was his letter dated May 3, 1994, it is submitted. In reply to this, it is pointed out by the learned Counsel for the respondents that Sri Basu did write to M.G.B. on May 10, 1994 as directed by the Board but that the M.G.B. did not agree to the figure stipulated by the Board (vide M.G.B. letter dated May 17, 1994) and that both these letters were placed before the Board. Be that as it may, once the Government directive was issued, all this controversy lost its relevance.30. It is then argued that the power to give directives is vested by Article 117 in the President alone and that no such directive can be given by the Government of India. It is submitted that the Rules of Business framed by the President of India under Article 77 are relevant only in the case of executive power of the Union and that Article 117 of the Articles of Association of H.A.L. is no part of the executive power of the Union. Accordingly, it is submitted, the authentication of the said directive by the Deputy Secretary to the Government of India is equally incompetent. Now, the directive in this case is issued by the Government of India. The letter says that it was being issued with the approval of the Minister for Chemicals and Fertilisers. There is indeed no reference to the President at all. The question, however, is whether the President in Article 117 of the Articles of Association of H. A.L. means refers only to the President of India and whether it is a power to be exercised by the President personally? We do not think that it would be reasonable to construe Article 117 as suggested by the appellants. The President of India like the Queen of England is a Constitutional Head. (See Rai Sahib Ram Jawaya Kapur & Ors.v. The State of Punjab(1955 (2) SCR 225 ) and Shamsher Singh & Anr. v. State of Punjab(1975 (1) SCR 814 ) H.A.L. is a Government Company. It was really an agency, an instrumentality of Government of India though given a corporate shape. Article 117 is one form of control the Government has over these corporate bodies. In the circumstances, it would be reasonable to understand the expression “President” in Article 117 as referring to the Government of India. To say that this power should be exercised by the President himself is neither practicable nor consistent with the dignity of the President. Of course, while the directive must be expressed in the name of the President but that is ultimately a matter of form, and the form has been held to be mandatory. In this view of the matter, it is unnecessary to consider whether it is open to the appellants to raise this contention. We are, therefore, unable to say that the directive issued is not valid in law or that it was not issued by the Competent Authority. It is not disputed that the directive is binding upon H.A.L. and all its authorities. If so, the corporate identity or corporate existence of H.A.L. is in no way violated by the directive given. It cannot also be stipulated that before giving the directive, the appellants should have been heard. Not only giving of directive was in internal matter between H.A.L. and the Government of India, there was no point in giving notice to SPIC and P.B.G. whose offers were already rejected by the Board once and again after re-evaluation directed by the Government. 31. Lastly, it is argued that in the case of Torrent, the Minister of State had asked the H.A.L. to evaluate its proposal on June 15, 1994 and that without any reference to the said order, the MoU was entered into on June 20, 1994. It is, however, explained by the respondents that the said order of the Minister of State was revised by the Minister for Chemicals and Fertilizers even before the issuance of the directive. Moreover, Torrent having entered the picture very late cannot complain of lack of fuller consideration. It is equally evident that since it was already in the process of selling up its own plant and also because its technology too was that of Biotica of Slovakia, which was already rejected in the case of P.B.G., no useful purpose would be served even by asking a reconsideration of its proposals.
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of Sri Basu. So far as P.B.G. is concerned, it appears that it did not disclose the name of its foreign partner in the first instance; it did so only later. Moreover, the letter of Biotica of Slovakia, (P.B.G.foreign partner) was found to be vague. Above all, the Board of Directors of H.A.L. were satisfied that the technology of Biotica of Slovakia is also not one of theseven leading manufactures of Penn-G and, therefore, the Board thought that there was no point in pursuing the proposals of P.B.G. It cannot be said that it was not a fair decision nor can it be insisted that before rejecting the proposals of SPIC and P.B.G., the Board of Directors ought to have obtained technical opinion or the opinion of an expert committee. The representatives of these two companies were heard in person by the Board and their presentation fully noted and considered. More cannot be insisted upon as a matter of law or in the facts of this case. Now coming to Torrent, it entered the picture quite late. Its foreign partner is the very same Biotica of Slovakia. (It needs to be stressed that each of the appellants, as also M.G.B., were offering the technology of their respective foreign partners and hence, the comparative merits of these foreign partners becomes relevant). The Complainant of not affording a proper opportunity to put forward their proposal made by Torrent, cannot, therefore, beopinion of Prof. Sharma must also have weighed with the Government in deciding to go in for JVC with MGB participation. It should be remembered that the Board of Directors of HAL had also decided to have a technological collaboration with MGB. It would have been a different matter if the Board of Directors had agreed with the recommendation of the Sub-Committee that there is tremendous scope of improving and achieving higher level of efficiency and cost reduction in the operations of HAL itself with the existing technology and without obtaining any foreign technology and that the HAL should first try that course. On the other hand, the Board decided in its meeting held on April 28, 1994 that HAL should go in for technological collaboration with M.G.B. in the form of a J.V.C. Yet another fact is that negotiations with M.G.B. were held on June 20, 1994 not by Sri A.K. Basu alone but a Committee of three members of whom one appears to have been a member of the Sub-Committee as well.28. We must reiterate that this was not simple case of granting of lease of a Government company, in which case the Court would have been justified in insisting upon the authorities following a fair method consistent with Article 14, i.e., by calling for tenders. We agree that while selling public property or granting its lease, the normal method is auction or calling for tenders so that all intending purchasers/lessees should have an equal opportunity of submitting their bids/ tenders. Even there, there may be exceptional situations where adopting such a course may not be insisted upon. Be that as it may, the case here is altogether different. H.A.L. was trying to improve not only the quantum of production but also its quality and for that purpose looking for an appropriate partner. They went in for the best. It must be remembered that this technology is not therefor the mere asking of it. All the leading drug companies keep their processes and technology a guarded secret. Being businessmen, they like to derive maximum profit for themselves. It is ultimately a matter of bargain. In such cases, all that need be ensured is that the Government or the authority, as the case may be, has acted fairly and has arrived at the best available arrangement in thedo not think that it would be reasonable to construe Article 117 as suggested by the appellants. The President of India like the Queen of England is a Constitutional Head. (See Rai Sahib Ram Jawaya Kapur & Ors.v. The State of Punjab(1955 (2) SCR 225 ) and Shamsher Singh & Anr. v. State of Punjab(1975 (1) SCR 814 ) H.A.L. is a Government Company. It was really an agency, an instrumentality of Government of India though given a corporate shape. Article 117 is one form of control the Government has over these corporate bodies. In the circumstances, it would be reasonable to understand the expressionin Article 117 as referring to the Government of India. To say that this power should be exercised by the President himself is neither practicable nor consistent with the dignity of the President. Of course, while the directive must be expressed in the name of the President but that is ultimately a matter of form, and the form has been held to be mandatory. In this view of the matter, it is unnecessary to consider whether it is open to the appellants to raise this contention. We are, therefore, unable to say that the directive issued is not valid in law or that it was not issued by the Competent Authority. It is not disputed that the directive is binding upon H.A.L. and all its authorities. If so, the corporate identity or corporate existence of H.A.L. is in no way violated by the directive given. It cannot also be stipulated that before giving the directive, the appellants should have been heard. Not only giving of directive was in internal matter between H.A.L. and the Government of India, there was no point in giving notice to SPIC and P.B.G. whose offers were already rejected by the Board once and again after re-evaluation directed by theTorrent having entered the picture very late cannot complain of lack of fuller consideration. It is equally evident that since it was already in the process of selling up its own plant and also because its technology too was that of Biotica of Slovakia, which was already rejected in the case of P.B.G., no useful purpose would be served even by asking a reconsideration of its proposals.
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Commissioner Of Sales Tax,Uttar Pradesh Vs. The Modi Sugar Mills Ltd | into the assessment year. Admittedly the Act itself is not retrospective, or designed to levy the charge under S. 3(1), on sales effected before April 1, 1948. If sales of the previous year are brought within the taxing provision, it is not because the sales when they took place were subject to tax, but because either (a) the previous years sales are deemed in law - when the assessee so opts - as the sales of the current year or (b) the previous years turnover being opted, the provisions of the charging sections operate on that turnover. Whichever of these be the more accurate method of expressing the result, the fact is that there is no element of retrospectivity at all involved in the application of the tax law which prevails in the year of assessment to the turnover of the previous year - when due to the choice of the assessee of being assessed under section 7(1), the previous years turnover basis is rendered applicable. Possibly the matter may be tested in this manner. Section 3(1) of the Act - the charging section - imposes in effect a tax of three pies per rupee on all sales effected after the commencement of the Act, i.e., after April 1, 1948. Suppose that section itself, had by a proviso imposed a tax @ six pies per rupee on all sales of edible oil effected on and after June 9, 1948. Could it then be open to argument, that in respect of the previous years sales, only a three pies tax was payable and that the result of the charging provision could be ignored? If, therefore, we are right so far, the respondent derives no advantage from the notification specifying the dates of sales effected from and after which they would be subject to the varied rate. The notification had necessarily to be worded as it was, in order to fulfil its primary purpose of effecting a change in the rate during the assessment year. The date mentioned in the notification as the date from and after which sales would be charged at the new rates would therefore not militate against the new rates being applied to the turnover of the previous year, since the turnover of the previous year has to be assessed on the rates prevailing in the assessment year. 43. The next question is how on the terms of the notification which came into operation after the commencement of the assessment year and during the course of it, the proportion of the turnover on the basis of which the tax-liability of a previous-years turnover dealer could be computed. Learned Counsel for the respondent urged that no intelligible basis could be suggested for distinguishing the two periods in the previous year when the original rates and the altered notified rates would operate. Learned Counsel urged that it would be impossible to distinguish these two periods either on any theory of retrospectivity of the notification or on any theory regarding the sales of the previous year being attributed to the corresponding dates of the current year. There is no doubt that this mode of computing the proportion, viz., to treat the sales which were effected on various dates of the previous year, as if they were sales on the corresponding dates of the current year and thus to compute the two totals of turnover which would be subject to different rates of duty would not be proper. The impropriety would arise from the fact that the fiction enacted by S. 7(1) is not that each days sale in the previous year is deemed to be a sale on the corresponding date in the current year, but only that the total taxable turnover of the previous year is deemed to be that of the current year. The method to which objection is taken is however not the manner in which the Sales-tax Officer computed the proportion which was affirmed by the Judge (Revision). If the total of the sale proceeds of the previous year is deemed to be the total of the current year, there is no illogicality or impropriety in dividing that total in accordance with the number of days in the year in which the different rates prevailed and that is precisely what the Sales-tax Officer did. If as we hold both the computation of the turnover of the previous year, as well as the incidence of the tax leviable on it, are to be determined not merely by the law as it stood on the first day of the assessment year, but by the law applicable to assessments during the entire assessment year, the method by which the tax-liability of the respondent was computed by the Sales-tax Officer is not open to any objection. 44. In connection with the interpretation of the notification a minor point was suggested to which brief reference might be made. It was submitted that as the notification in effect levied a tax, if it was ambiguous, it should be resolved in favour of the subject - the tax-payer. We see no ambiguity in the notification to justify an appeal to this rule. Besides the notification in effect frees dealers other than importers and manufacturers of all tax-liability in respect of the sale-turnover of oil, though in the case of two specified classes of dealers a single point tax at an enhanced rate is levied. In such a situation, the rule of construction invoked could hardly be applied, even if the condition as to ambiguity were present. 45. We, therefore, hold that the assessment to sales-tax of the respondent company by applying to its turnover of the year 1947-48, the rate of tax specified in the notification of June 8, 1948, as determined by the Sales-tax Officer was in accordance with the law. We would accordingly allow the appeal, set aside the decree of the High Court and restore the assessment order of the Sales-tax Officer with costs here and in the High Court. ORDER | 0[ds]12. Section 18 cl. (c) of the Act which provides for proportionate reduction of tax when in the case of a change or discontinuance taking place in the course of the assessment year of a firm which has been assessed for such year on the turnover of the previous year does not support the contention that an artificial division of the turnover of the previous year is intended in cases of alteration of circumstances during the course of the assessment year. It may be noticed that the provision is limited to changes in or discontinuance of the business of a firm, in terms it does not apply to individuals. It is not for us to consider why the Legislature has not chosen to make a similar provision in respect of individuals. But the fact that the Legislature has made an express provision dealing with changes or discontinuance of business of firms in the course of the assessment year enabling a reduction proportionately to the tax already paid would be a ground indicating that in cases not governed by that provision no alteration in the liability was permissible when the taxable turnover was based on the previous years turnover13. It is not provided that in giving effect to the alteration of the rate during the course of the year of assessment an artificial division of the turnover of the previous year should, in applying the altered rate be made. The Legislature having failed to provide machinery for working out the liability, the attempted projection becomes unworkable. A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field. The turnover of the previous year is fictionally made the turnover of the year of assessment : it is not the actual or the real turnover of the year of assessment.By the imposition of a different tariff in the course of the year, the incidence of tax liability may competently be altered by the Legislature, but for effectuating that alteration, the Legislature must devise machinery for enforcing it against the tax payer and if the Legislature has failed to do so, the court cannot resort to a fiction which is not prescribed by the Legislature and seek to effectuate that alteration by devising machinery not found in the statuteExpress provision in that behalf there is none: and it is difficult to imply such a provision in the Act. The dates of commencement and closure of the previous year of a tax payer may vary according to the system of accounting adopted by the assessee. The year may commence from any day of any recognised calendar year, and the year may not consist of 365 days. The method of antedating by one year the date on which the alteration is made in the rate or incidence will be manifestly inappropriate. The method of division of the turnover proportionate to the period of the assessment year before the alteration of the rate and after such alteration though prospective, must be deemed to have been made retrospectively in the previous year, and on a day which is removed from the commencement of the year of account by the number of days by which the date of alteration of rate is removed from the commencement of the year of assessment. But the adoption of the turnover of the previous year as the taxable turnover for the year of assessment is itself based on a fiction and in the absence of any express provision either in the Act or the Rules or even in the notification setting out machinery for such a division of the year, we are unable to hold that this scheme of a fictional division may be projected into the previous year to make an artificial division of the turnover for imprinting thereon the altered rate of assessment as from the date of the division. Counsel for the State of Uttar Pradesh submitted several hypothetical cases suggesting that by refusing to adopt this method of division of the previous year of assessment for the application of the altered rate, several anomalies may arise in working out the liability to tax. He submitted that a person who was not a manufacturer or an importer of goods included in the schedule to the notification under S. 3-A may, if he has adopted the turnover of the previous year as his taxable turnover be liable even though it was the intention of the Government to absolve him from liability to pay tax. But a tax payer adopting the turnover of the previous year for payment of tax makes his choice voluntarily and subject to the advantages and disadvantages which that step involves. The fact that he may have to pay tax from which persons choosing the alternative method of submitting of return may partially be exempted, because of an exemption granted in the course of the year, may not, in our judgment, be a ground for not giving full effect to the provisions of the Act as they stand. In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must took squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed : it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiencyThere is no express provision in the Act or in the Rules in that behalf. Nor does the notification suggest that it was so intended. In the case of a dealer who adopts the turnover of the year of assessment for purposes of taxation, the application of the notification altering the rate of tax and the incidence of tax does not present any difficulty. The notification enjoins levy of the tax at the altered rate only in respect of sales taking place after the fixed date, and all sales which preceded that date are to be taxed at the original rate. In the fact of the language employed sales anterior to the date specified could not be affected. | 0 | 11,811 | 1,092 | ### 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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into the assessment year. Admittedly the Act itself is not retrospective, or designed to levy the charge under S. 3(1), on sales effected before April 1, 1948. If sales of the previous year are brought within the taxing provision, it is not because the sales when they took place were subject to tax, but because either (a) the previous years sales are deemed in law - when the assessee so opts - as the sales of the current year or (b) the previous years turnover being opted, the provisions of the charging sections operate on that turnover. Whichever of these be the more accurate method of expressing the result, the fact is that there is no element of retrospectivity at all involved in the application of the tax law which prevails in the year of assessment to the turnover of the previous year - when due to the choice of the assessee of being assessed under section 7(1), the previous years turnover basis is rendered applicable. Possibly the matter may be tested in this manner. Section 3(1) of the Act - the charging section - imposes in effect a tax of three pies per rupee on all sales effected after the commencement of the Act, i.e., after April 1, 1948. Suppose that section itself, had by a proviso imposed a tax @ six pies per rupee on all sales of edible oil effected on and after June 9, 1948. Could it then be open to argument, that in respect of the previous years sales, only a three pies tax was payable and that the result of the charging provision could be ignored? If, therefore, we are right so far, the respondent derives no advantage from the notification specifying the dates of sales effected from and after which they would be subject to the varied rate. The notification had necessarily to be worded as it was, in order to fulfil its primary purpose of effecting a change in the rate during the assessment year. The date mentioned in the notification as the date from and after which sales would be charged at the new rates would therefore not militate against the new rates being applied to the turnover of the previous year, since the turnover of the previous year has to be assessed on the rates prevailing in the assessment year. 43. The next question is how on the terms of the notification which came into operation after the commencement of the assessment year and during the course of it, the proportion of the turnover on the basis of which the tax-liability of a previous-years turnover dealer could be computed. Learned Counsel for the respondent urged that no intelligible basis could be suggested for distinguishing the two periods in the previous year when the original rates and the altered notified rates would operate. Learned Counsel urged that it would be impossible to distinguish these two periods either on any theory of retrospectivity of the notification or on any theory regarding the sales of the previous year being attributed to the corresponding dates of the current year. There is no doubt that this mode of computing the proportion, viz., to treat the sales which were effected on various dates of the previous year, as if they were sales on the corresponding dates of the current year and thus to compute the two totals of turnover which would be subject to different rates of duty would not be proper. The impropriety would arise from the fact that the fiction enacted by S. 7(1) is not that each days sale in the previous year is deemed to be a sale on the corresponding date in the current year, but only that the total taxable turnover of the previous year is deemed to be that of the current year. The method to which objection is taken is however not the manner in which the Sales-tax Officer computed the proportion which was affirmed by the Judge (Revision). If the total of the sale proceeds of the previous year is deemed to be the total of the current year, there is no illogicality or impropriety in dividing that total in accordance with the number of days in the year in which the different rates prevailed and that is precisely what the Sales-tax Officer did. If as we hold both the computation of the turnover of the previous year, as well as the incidence of the tax leviable on it, are to be determined not merely by the law as it stood on the first day of the assessment year, but by the law applicable to assessments during the entire assessment year, the method by which the tax-liability of the respondent was computed by the Sales-tax Officer is not open to any objection. 44. In connection with the interpretation of the notification a minor point was suggested to which brief reference might be made. It was submitted that as the notification in effect levied a tax, if it was ambiguous, it should be resolved in favour of the subject - the tax-payer. We see no ambiguity in the notification to justify an appeal to this rule. Besides the notification in effect frees dealers other than importers and manufacturers of all tax-liability in respect of the sale-turnover of oil, though in the case of two specified classes of dealers a single point tax at an enhanced rate is levied. In such a situation, the rule of construction invoked could hardly be applied, even if the condition as to ambiguity were present. 45. We, therefore, hold that the assessment to sales-tax of the respondent company by applying to its turnover of the year 1947-48, the rate of tax specified in the notification of June 8, 1948, as determined by the Sales-tax Officer was in accordance with the law. We would accordingly allow the appeal, set aside the decree of the High Court and restore the assessment order of the Sales-tax Officer with costs here and in the High Court. ORDER
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of a firm which has been assessed for such year on the turnover of the previous year does not support the contention that an artificial division of the turnover of the previous year is intended in cases of alteration of circumstances during the course of the assessment year. It may be noticed that the provision is limited to changes in or discontinuance of the business of a firm, in terms it does not apply to individuals. It is not for us to consider why the Legislature has not chosen to make a similar provision in respect of individuals. But the fact that the Legislature has made an express provision dealing with changes or discontinuance of business of firms in the course of the assessment year enabling a reduction proportionately to the tax already paid would be a ground indicating that in cases not governed by that provision no alteration in the liability was permissible when the taxable turnover was based on the previous years turnover13. It is not provided that in giving effect to the alteration of the rate during the course of the year of assessment an artificial division of the turnover of the previous year should, in applying the altered rate be made. The Legislature having failed to provide machinery for working out the liability, the attempted projection becomes unworkable. A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field. The turnover of the previous year is fictionally made the turnover of the year of assessment : it is not the actual or the real turnover of the year of assessment.By the imposition of a different tariff in the course of the year, the incidence of tax liability may competently be altered by the Legislature, but for effectuating that alteration, the Legislature must devise machinery for enforcing it against the tax payer and if the Legislature has failed to do so, the court cannot resort to a fiction which is not prescribed by the Legislature and seek to effectuate that alteration by devising machinery not found in the statuteExpress provision in that behalf there is none: and it is difficult to imply such a provision in the Act. The dates of commencement and closure of the previous year of a tax payer may vary according to the system of accounting adopted by the assessee. The year may commence from any day of any recognised calendar year, and the year may not consist of 365 days. The method of antedating by one year the date on which the alteration is made in the rate or incidence will be manifestly inappropriate. The method of division of the turnover proportionate to the period of the assessment year before the alteration of the rate and after such alteration though prospective, must be deemed to have been made retrospectively in the previous year, and on a day which is removed from the commencement of the year of account by the number of days by which the date of alteration of rate is removed from the commencement of the year of assessment. But the adoption of the turnover of the previous year as the taxable turnover for the year of assessment is itself based on a fiction and in the absence of any express provision either in the Act or the Rules or even in the notification setting out machinery for such a division of the year, we are unable to hold that this scheme of a fictional division may be projected into the previous year to make an artificial division of the turnover for imprinting thereon the altered rate of assessment as from the date of the division. Counsel for the State of Uttar Pradesh submitted several hypothetical cases suggesting that by refusing to adopt this method of division of the previous year of assessment for the application of the altered rate, several anomalies may arise in working out the liability to tax. He submitted that a person who was not a manufacturer or an importer of goods included in the schedule to the notification under S. 3-A may, if he has adopted the turnover of the previous year as his taxable turnover be liable even though it was the intention of the Government to absolve him from liability to pay tax. But a tax payer adopting the turnover of the previous year for payment of tax makes his choice voluntarily and subject to the advantages and disadvantages which that step involves. The fact that he may have to pay tax from which persons choosing the alternative method of submitting of return may partially be exempted, because of an exemption granted in the course of the year, may not, in our judgment, be a ground for not giving full effect to the provisions of the Act as they stand. In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must took squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed : it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiencyThere is no express provision in the Act or in the Rules in that behalf. Nor does the notification suggest that it was so intended. In the case of a dealer who adopts the turnover of the year of assessment for purposes of taxation, the application of the notification altering the rate of tax and the incidence of tax does not present any difficulty. The notification enjoins levy of the tax at the altered rate only in respect of sales taking place after the fixed date, and all sales which preceded that date are to be taxed at the original rate. In the fact of the language employed sales anterior to the date specified could not be affected.
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Commnr. Of Central Excise, Shillong Vs. M/S. North Eastern Tobacco Ltd | of the Additional Duties of (Textile and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the good specified in the first schedule and the second schedule to the Central Excise Tariff Act, 1985 (1 of 1986) and cleared from unit located in the Growth Centre or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate, as the case may be specified in Annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under rule 9 read with rule 173 G of the Central Excise Rules 1944. The exemption contained in this notification shall apply only to the following kind of units namely:- (i) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997. (ii) Industrial units existing before the 24th Day of December, 1997 but which have undertaken substantial expansion by way of increase capacity by not less than twenty five per cent on or after the 24th day of December, 1997. The exemption contained in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the Official Gazette on from the date of commencement of Commercial production whichever is later. (Underlying for inviting pointed attention) 9. The Exemption Notification nowhere defines the words new industrial units. The object of Exemption Notification is obvious. It intends to encourage capital investment and establishment of industrial units in specified North-Eastern States for the purpose of increasing production of goods, promoting development of industry and employment in the said regions. In the case of Hindustan Aluminium Corp. Ltd. vs. State of U.P. and Another (1981 (3) SCC 578 ), this Court emphasised that the Notification issued under the Act, should not only be confined to its grammatical meaning or ordinary parlance but it should also be construed in the light of the context. It was reiterated that the expression should be construed in a manner in which similar expressions have been employed by those who framed relevant notifications. Therefore, there is a need to derive the intent from a contextual scheme. 10. The another important principle of interpreting an Exemption Notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. She State Level Committee vs. Morgardshammar India Ltd. (1996 (1) SCC 108 ). 11. In the case of Morgardshammar India Ltd. (Supra), Section 4(A) of the U.P. Sales Tax Act contained definition of new unit for availing exemption from payment of sales tax. Explanation below Section 4(A) of the U.P. Sales Tax Act defined new unit to mean a factory or workshop whether set up by a dealer already having an industrial unit manufacturing the same goods at any other place in the State or adjacent site but excluded any factory or workshop using machinery, accessories or components already used or acquired for use in any other factory or workshop in India. In the present case, no such definition or explanation is to be found in the notification and there is no material to establish that the same machinery, accessories or components used by the company in its unit at Bangagarh have been shifted for its unit at Amingaon, Guwahati. 12. In the case of Shri Bakul Oil Industries vs. State of Gujarat (1987) (1) SCC 31 ), the notification for exemption from sales tax under consideration was issued under the provisions of Gujarat Sales Tax Act and in the notification new industry was defined to mean and include an industry commissioned during the period 1st April, 1970 to 31st March, 1975 but the exclusion clause clearly read as : but shall not include such industrial undertaking established by transferring or shifting or dismantling an existing industrial unit. 13. In the case before us, the Exemption Notification does not define new industrial unit to exclude from its ambit which are shifted or transferred from one location to another. 14. In the present case as we have found above, there was no material before the Department that pursuant to the Disinvestment Agreement with AIDC, the unit of the company at Bangagarh which was closed in 1994 was shifted to the new location at Amingaon, Guwahati. 15. The unit at Amingaon, therefore, has to be considered as a new unit for the purposes of the Notification to avail exemption. The other argument advanced by the counsel on behalf of the Department does not impress us at all that the words new industry in Exemption Notification has to be construed in the light of the provisions of Industries (Development & Regulation) Act and since the company itself asked for use of same industrial licence by endorsement for the changed location, the unit at Amingaon was not a new unit. In our considered opinion, merely because the company has made an attempt to continue its industrial activities at the new location on the basis of same industrial licence granted for its earlier location, it cannot be denied the benefit of Exemption Notification. The claim of the company of the status of its factory at Amingaon as new unit within the intent and meaning of the Exemption Notification has rightly been accepted. The attempt of the company to obtain endorsement on the same industrial licence for its industrial activity at the new location or requirement of grant of a fresh industrial licence to them at the new location under the Industries (Development & Regulation) Act, is a subject matter not directly connected with grant of benefit of the exemption notification under the Act. | 0[ds]We do not find any ground to interfere with the decision of the CEGAT and its conclusion that the unit of the company at Amingaon is entitled to the benefit of the Exemption Notification9. The Exemption Notification nowhere defines the words new industrial units. The object of Exemption Notification is obvious. It intends to encourage capital investment and establishment of industrial units in specifiedn States for the purpose of increasing production of goods, promoting development of industry and employment in the said regions10. The another important principle of interpreting an Exemption Notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed11. In the case of Morgardshammar India Ltd. (Supra), Section 4(A) of the U.P. Sales Tax Act contained definition of new unit for availing exemption from payment of sales tax. Explanation below Section 4(A) of the U.P. Sales Tax Act defined new unit to mean a factory or workshop whether set up by a dealer already having an industrial unit manufacturing the same goods at any other place in the State or adjacent site but excluded any factory or workshop using machinery, accessories or components already used or acquired for use in any other factory or workshop in India. In the present case, no such definition or explanation is to be found in the notification and there is no material to establish that the same machinery, accessories or components used by the company in its unit at Bangagarh have been shifted for its unit at Amingaon, Guwahati14. In the present case as we have found above, there was no material before the Department that pursuant to the Disinvestment Agreement with AIDC, the unit of the company at Bangagarh which was closed in 1994 was shifted to the new location at Amingaon, Guwahati | 0 | 2,633 | 339 | ### 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:
of the Additional Duties of (Textile and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the good specified in the first schedule and the second schedule to the Central Excise Tariff Act, 1985 (1 of 1986) and cleared from unit located in the Growth Centre or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate, as the case may be specified in Annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under rule 9 read with rule 173 G of the Central Excise Rules 1944. The exemption contained in this notification shall apply only to the following kind of units namely:- (i) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997. (ii) Industrial units existing before the 24th Day of December, 1997 but which have undertaken substantial expansion by way of increase capacity by not less than twenty five per cent on or after the 24th day of December, 1997. The exemption contained in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the Official Gazette on from the date of commencement of Commercial production whichever is later. (Underlying for inviting pointed attention) 9. The Exemption Notification nowhere defines the words new industrial units. The object of Exemption Notification is obvious. It intends to encourage capital investment and establishment of industrial units in specified North-Eastern States for the purpose of increasing production of goods, promoting development of industry and employment in the said regions. In the case of Hindustan Aluminium Corp. Ltd. vs. State of U.P. and Another (1981 (3) SCC 578 ), this Court emphasised that the Notification issued under the Act, should not only be confined to its grammatical meaning or ordinary parlance but it should also be construed in the light of the context. It was reiterated that the expression should be construed in a manner in which similar expressions have been employed by those who framed relevant notifications. Therefore, there is a need to derive the intent from a contextual scheme. 10. The another important principle of interpreting an Exemption Notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. She State Level Committee vs. Morgardshammar India Ltd. (1996 (1) SCC 108 ). 11. In the case of Morgardshammar India Ltd. (Supra), Section 4(A) of the U.P. Sales Tax Act contained definition of new unit for availing exemption from payment of sales tax. Explanation below Section 4(A) of the U.P. Sales Tax Act defined new unit to mean a factory or workshop whether set up by a dealer already having an industrial unit manufacturing the same goods at any other place in the State or adjacent site but excluded any factory or workshop using machinery, accessories or components already used or acquired for use in any other factory or workshop in India. In the present case, no such definition or explanation is to be found in the notification and there is no material to establish that the same machinery, accessories or components used by the company in its unit at Bangagarh have been shifted for its unit at Amingaon, Guwahati. 12. In the case of Shri Bakul Oil Industries vs. State of Gujarat (1987) (1) SCC 31 ), the notification for exemption from sales tax under consideration was issued under the provisions of Gujarat Sales Tax Act and in the notification new industry was defined to mean and include an industry commissioned during the period 1st April, 1970 to 31st March, 1975 but the exclusion clause clearly read as : but shall not include such industrial undertaking established by transferring or shifting or dismantling an existing industrial unit. 13. In the case before us, the Exemption Notification does not define new industrial unit to exclude from its ambit which are shifted or transferred from one location to another. 14. In the present case as we have found above, there was no material before the Department that pursuant to the Disinvestment Agreement with AIDC, the unit of the company at Bangagarh which was closed in 1994 was shifted to the new location at Amingaon, Guwahati. 15. The unit at Amingaon, therefore, has to be considered as a new unit for the purposes of the Notification to avail exemption. The other argument advanced by the counsel on behalf of the Department does not impress us at all that the words new industry in Exemption Notification has to be construed in the light of the provisions of Industries (Development & Regulation) Act and since the company itself asked for use of same industrial licence by endorsement for the changed location, the unit at Amingaon was not a new unit. In our considered opinion, merely because the company has made an attempt to continue its industrial activities at the new location on the basis of same industrial licence granted for its earlier location, it cannot be denied the benefit of Exemption Notification. The claim of the company of the status of its factory at Amingaon as new unit within the intent and meaning of the Exemption Notification has rightly been accepted. The attempt of the company to obtain endorsement on the same industrial licence for its industrial activity at the new location or requirement of grant of a fresh industrial licence to them at the new location under the Industries (Development & Regulation) Act, is a subject matter not directly connected with grant of benefit of the exemption notification under the Act.
### Response:
0
### Explanation:
We do not find any ground to interfere with the decision of the CEGAT and its conclusion that the unit of the company at Amingaon is entitled to the benefit of the Exemption Notification9. The Exemption Notification nowhere defines the words new industrial units. The object of Exemption Notification is obvious. It intends to encourage capital investment and establishment of industrial units in specifiedn States for the purpose of increasing production of goods, promoting development of industry and employment in the said regions10. The another important principle of interpreting an Exemption Notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed11. In the case of Morgardshammar India Ltd. (Supra), Section 4(A) of the U.P. Sales Tax Act contained definition of new unit for availing exemption from payment of sales tax. Explanation below Section 4(A) of the U.P. Sales Tax Act defined new unit to mean a factory or workshop whether set up by a dealer already having an industrial unit manufacturing the same goods at any other place in the State or adjacent site but excluded any factory or workshop using machinery, accessories or components already used or acquired for use in any other factory or workshop in India. In the present case, no such definition or explanation is to be found in the notification and there is no material to establish that the same machinery, accessories or components used by the company in its unit at Bangagarh have been shifted for its unit at Amingaon, Guwahati14. In the present case as we have found above, there was no material before the Department that pursuant to the Disinvestment Agreement with AIDC, the unit of the company at Bangagarh which was closed in 1994 was shifted to the new location at Amingaon, Guwahati
|
CHIEF REGIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED Vs. SIRAJ UDDIN KHAN | in CR (W) No. 5715 of 1986 which had directed that the respondent be paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.9. The learned counsel for the appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so repeatedly, the direction of the Division Bench to grant him back wages from 17-10-1985 to 10-11-1995 was clearly not justified on the principle of ?no work no pay?. She has pointed out that the appellant Authority would have been fully justified even if it had dismissed the respondent from service, but on the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:?(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits.?11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court?s order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004.?19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.20. We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter affidavit, i.e., judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663). In the above case, the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of retirement, which was allowed by learned Single Judge. Learned Single Judge has denied the back wages to the appellant on the principle of ?no work no pay?. The order of learned Single Judge was assailed by the appellant by filing a Letters Patent Appeal, which too was dismissed. This Court allowed the appeal of the appellant and made following observations in paragraph Nos. 3 and 4:-"3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of ?no work no pay?.4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside.?21. This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of ?no work no pay? for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of ?no work no pay? was not attracted.22. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon. | 1[ds]A perusal of the judgment of learned Single Judge dated 29.05.2015 indicates that although learned Single Judge has set aside the order dated 26.06.2012, but there was no order for payment of back wages or consequential benefits. Learned Single Judge has set aside the order dated 26.06.2012 and has left the matter there.There is clear difference between the direction of the High Court insofar as setting aside the order dated 14.05.2009 is concerned and insofar as setting aside the order dated 26.06.2012 is concerned, whereas there is a clear direction for payment of consequential reliefs while setting aside the order dated 14.05.2009 there is no direction with regard to payment of salary while setting aside the order dated 26.06.2012, hence the question was required to be gone into by learned Single Judge while deciding the Writ Petition No.61102 of 2017. We may also notice the consideration of learned Single Judge while noticing the claim of the respondent for quashing and setting aside the order dated 26.06.2012.There is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of learned Single Judge for the period 15.05.2009 to 20.06.2012. Learned Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, which view of the Single Judge is not correct. The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages.We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective.18. We may notice another judgment of this Court in Airports Authority of India and Others Vs. Shambhu Nath Das alias S.N. Das, (2008) 11 SCC 498. In the above case, the respondent did not join after expiry of the leave. The respondent was issued a warning that unless he joins on or before 30.10.1985, failing which it would be presumed that he had voluntarily abandoned his service with the consequence that his name would be struck off the rolls with effect from 01.11.1985. The said order was challenged by the respondent and learned Sigle Judge on 10.11.1995 directed the Airports Authority of India to allow the respondent to join duty but it was held that he shall not be entitled for the arrears of pay for the period he was absent. The order of learned Single Judge was again challenged by the respondent without joining. The Division Bench set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge. Learned Single Judge directed the appellant to reinstate the respondent and further directed that insofar as the salary of the writ petitioner is concerned, during the period he stayed away from the work, Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits during the period from 17.10.1985 till 10.11.1995. The Airports Authority of India accepted the judgment and allowed him to join w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding that the period of unauthorised absence was to be treated as dies-non and the claim for back wages was accordingly disallowed on the principle of "no work no pay". The order dated 14.05.2002 was once again challenged by the respondent claiming back wages, which was allowed by the learned Single Judge. On further denial of claim, matter was taken by respondent to learned Single Judge to issue certain directions. Against the learned Single Judge?s Order, matter was taken in appeal before Division Bench, where direction to pay 50% of back wages was issued.This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon. | 1 | 5,231 | 974 | ### 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:
in CR (W) No. 5715 of 1986 which had directed that the respondent be paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.9. The learned counsel for the appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so repeatedly, the direction of the Division Bench to grant him back wages from 17-10-1985 to 10-11-1995 was clearly not justified on the principle of ?no work no pay?. She has pointed out that the appellant Authority would have been fully justified even if it had dismissed the respondent from service, but on the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:?(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits.?11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court?s order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004.?19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.20. We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter affidavit, i.e., judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663). In the above case, the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of retirement, which was allowed by learned Single Judge. Learned Single Judge has denied the back wages to the appellant on the principle of ?no work no pay?. The order of learned Single Judge was assailed by the appellant by filing a Letters Patent Appeal, which too was dismissed. This Court allowed the appeal of the appellant and made following observations in paragraph Nos. 3 and 4:-"3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of ?no work no pay?.4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside.?21. This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of ?no work no pay? for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of ?no work no pay? was not attracted.22. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.
### Response:
1
### Explanation:
A perusal of the judgment of learned Single Judge dated 29.05.2015 indicates that although learned Single Judge has set aside the order dated 26.06.2012, but there was no order for payment of back wages or consequential benefits. Learned Single Judge has set aside the order dated 26.06.2012 and has left the matter there.There is clear difference between the direction of the High Court insofar as setting aside the order dated 14.05.2009 is concerned and insofar as setting aside the order dated 26.06.2012 is concerned, whereas there is a clear direction for payment of consequential reliefs while setting aside the order dated 14.05.2009 there is no direction with regard to payment of salary while setting aside the order dated 26.06.2012, hence the question was required to be gone into by learned Single Judge while deciding the Writ Petition No.61102 of 2017. We may also notice the consideration of learned Single Judge while noticing the claim of the respondent for quashing and setting aside the order dated 26.06.2012.There is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of learned Single Judge for the period 15.05.2009 to 20.06.2012. Learned Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, which view of the Single Judge is not correct. The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages.We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective.18. We may notice another judgment of this Court in Airports Authority of India and Others Vs. Shambhu Nath Das alias S.N. Das, (2008) 11 SCC 498. In the above case, the respondent did not join after expiry of the leave. The respondent was issued a warning that unless he joins on or before 30.10.1985, failing which it would be presumed that he had voluntarily abandoned his service with the consequence that his name would be struck off the rolls with effect from 01.11.1985. The said order was challenged by the respondent and learned Sigle Judge on 10.11.1995 directed the Airports Authority of India to allow the respondent to join duty but it was held that he shall not be entitled for the arrears of pay for the period he was absent. The order of learned Single Judge was again challenged by the respondent without joining. The Division Bench set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge. Learned Single Judge directed the appellant to reinstate the respondent and further directed that insofar as the salary of the writ petitioner is concerned, during the period he stayed away from the work, Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits during the period from 17.10.1985 till 10.11.1995. The Airports Authority of India accepted the judgment and allowed him to join w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding that the period of unauthorised absence was to be treated as dies-non and the claim for back wages was accordingly disallowed on the principle of "no work no pay". The order dated 14.05.2002 was once again challenged by the respondent claiming back wages, which was allowed by the learned Single Judge. On further denial of claim, matter was taken by respondent to learned Single Judge to issue certain directions. Against the learned Single Judge?s Order, matter was taken in appeal before Division Bench, where direction to pay 50% of back wages was issued.This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.
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Commissioner Of Income-Tax (Central),New Delhi Vs. M/S. S. Zoraster & Company | fitness, it is inevitable that there should be some discussion about the nature of the questions that arose for decision before the Bench which answered the Reference. 14. While we agree with Mr. Dhebar that reasons for granting the certificate must be given by the learned Judges in the order, those reasons, however, in our opinion, must be confined to the material on record, which must have been before the Court which dealt with an appeal or Reference and in respect of which decision, the aggrieved party desires to come in appeal to this Court on certificate on the ground that a substantial question of law arises for consideration. 15. We are not inclined to accept the contention of Mr. Dheber that the High Court has properly exercised its jurisdiction in certifying that the two cases are fit for appeal to this Court. We must frankly admit that when we went through the order of the High Court granting the certificates, we felt that the learned Judges were either sitting in appeal over the judgment of the Division Bench, which answered the Reference, or were themselves dealing with the Reference under S. 66 (1) of the Act, in the first instance. Unless the learned Judges were exercising one or the other of the above jurisdiction, the criticism about the approach made by the Division Bench when answering the Reference, could not be justified." It is clear that when dealing with application for grant of certificate of fitness, the court was exercising no such jurisdiction. It must be emphasised that in the circumstances like this, the Jurisdiction of the Court, at the stage of dealing with application for grant of certificate is limited only to considering whether any substantial question of law arises having due regard to the material on record and the discussion on facts and law contained in the judgment of the High Court which dealt with the appeal or Reference or any other proceeding, as the case may be. 16. Regarding the question that the assessee may be considered to have received the payments at Bombay, the learned Judges have quite rightly declined to grant a certificate on the ground that the point is covered by the decisions of this Court and that no substantial question of law arises. 17. As we have already pointed out the certificate has been granted by the learned Judges on the basis that the general question whether a presumption under S. 114 illustration (f) of the Evidence Act can be raised is of great importance and that it is likely to arise in many future cases not restricted to income-tax. It should be remembered that this Court should not be invited to decide any question of law much less the substantial question of law purely in the abstract. Such question of law must reasonably arise on the basis of the material on record. Further, the substantial question of law, in order to be certified as fit to be decided by this Court must arise on the facts of a particular case. With great respect to the learned Judges who dealt with the application for grant of certificate, we are constrained to remark that they have ignored the finding of fact recorded by the Appellate Tribunal in its supplementary statement dated March, 18, 1961 that the Revenue has placed no materials to prove that the cheques were posted at Delhi. It should be remembered that when the reference was made in the first instance, the Punjab High Court felt that the Appellate Tribunal had not given any finding as to whether the cheques in question were sent to the assessee by post and whether the assessee had given any direction in that regard to the Government of india. In view of the absence of such a finding, the High Court by its order dated March 24, 1955 called for a supplementary statement from the Appellate Tribunal under S. 66 (4) of the Act. This order was challenged before this Court by the assessee unsuccessfully. The purpose of seeking a supplementary statement was to focus the attention of the Appellate Tribunal to this aspect, namely, the posting of cheques claimed to have been done at Delhi by the Government of India. That the Revenue miserably failed to establish the fact of posting of cheques at Delhi, is clear from the finding recorded by the Appellate Tribunal in its supplementary statement, which finding has been accepted by the High Court in its judgment dated February 21, 1967 when aswering the Reference. The High Court has also then recorded a finding that the Revenue has failed to place any material before the Appellate Tribunal to prove that the cheques in question were being sent by the Government of India through post. Unfortunately, all these aspects have been missed by the learned Judges when dealing with the applications filed by the Revenue for the grant of certificates. 18. On the above findings recorded by the Appellate Tribunal and confirmed by the High Court, no question of applying any presumption under S. 114 of the Evidence Act arises for consideration. The learned Judges, dealing with the applications for grant of certificates, had no jurisdiction to go behind the finding recorded in the original judgment disposing of the Reference. In our opinion, the entire discussion on this aspect of posting of the cheques at Delhi by the learned Judges is beside the point, as that question no longer was available to the Revenue, in view of the finding recorded against it, to which we have made a reference earlier. 19. When once the question of a presumption under S. 114, illustration (f) of the Evidence Act does not fall to be considered in these proceedings, in view of the specific finding recorded by the Appellate Tribunal against the Revenue, and accepted by the High court, in our opinion, the High Court was not justified in certifying, on this ground, that the cases are fit for appeal to this Court. | 1[ds]14. While we agree with Mr. Dhebar that reasons for granting the certificate must be given by the learned Judges in the order, those reasons, however, in our opinion, must be confined to the material on record, which must have been before the Court which dealt with an appeal or Reference and in respect of which decision, the aggrieved party desires to come in appeal to this Court on certificate on the ground that a substantial question of law arises for consideration15. We are not inclined to accept the contention of Mr. Dheber that the High Court has properly exercised its jurisdiction in certifying that the two cases are fit for appeal to this Court. We must frankly admit that when we went through the order of the High Court granting the certificates, we felt that the learned Judges were either sitting in appeal over the judgment of the Division Bench, which answered the Reference, or were themselves dealing with the Reference under S. 66 (1) of the Act, in the first instance. Unless the learned Judges were exercising one or the other of the above jurisdiction, the criticism about the approach made by the Division Bench when answering the Reference, could not be justified." It is clear that when dealing with application for grant of certificate of fitness, the court was exercising no such jurisdiction. It must be emphasised that in the circumstances like this, the Jurisdiction of the Court, at the stage of dealing with application for grant of certificate is limited only to considering whether any substantial question of law arises having due regard to the material on record and the discussion on facts and law contained in the judgment of the High Court which dealt with the appeal or Reference or any other proceeding, as the case may be16. Regarding the question that the assessee may be considered to have received the payments at Bombay, the learned Judges have quite rightly declined to grant a certificate on the ground that the point is covered by the decisions of this Court and that no substantial question of law arises17. As we have already pointed out the certificate has been granted by the learned Judges on the basis that the general question whether a presumption under S. 114 illustration (f) of the Evidence Act can be raised is of great importance and that it is likely to arise in many future cases not restricted to. It should be remembered that this Court should not be invited to decide any question of law much less the substantial question of law purely in the abstract. Such question of law must reasonably arise on the basis of the material on record. Further, the substantial question of law, in order to be certified as fit to be decided by this Court must arise on the facts of a particular case. With great respect to the learned Judges who dealt with the application for grant of certificate, we are constrained to remark that they have ignored the finding of fact recorded by the Appellate Tribunal in its supplementary statement dated March, 18, 1961 that the Revenue has placed no materials to prove that the cheques were posted at Delhi. It should be remembered that when the reference was made in the first instance, the Punjab High Court felt that the Appellate Tribunal had not given any finding as to whether the cheques in question were sent to the assessee by post and whether the assessee had given any direction in that regard to the Government of india. In view of the absence of such a finding, the High Court by its order dated March 24, 1955 called for a supplementary statement from the Appellate Tribunal under S. 66 (4) of the Act. This order was challenged before this Court by the assessee unsuccessfully. The purpose of seeking a supplementary statement was to focus the attention of the Appellate Tribunal to this aspect, namely, the posting of cheques claimed to have been done at Delhi by the Government of India. That the Revenue miserably failed to establish the fact of posting of cheques at Delhi, is clear from the finding recorded by the Appellate Tribunal in its supplementary statement, which finding has been accepted by the High Court in its judgment dated February 21, 1967 when aswering the Reference. The High Court has also then recorded a finding that the Revenue has failed to place any material before the Appellate Tribunal to prove that the cheques in question were being sent by the Government of India through post. Unfortunately, all these aspects have been missed by the learned Judges when dealing with the applications filed by the Revenue for the grant of certificates18. On the above findings recorded by the Appellate Tribunal and confirmed by the High Court, no question of applying any presumption under S. 114 of the Evidence Act arises for consideration. The learned Judges, dealing with the applications for grant of certificates, had no jurisdiction to go behind the finding recorded in the original judgment disposing of the Reference. In our opinion, the entire discussion on this aspect of posting of the cheques at Delhi by the learned Judges is beside the point, as that question no longer was available to the Revenue, in view of the finding recorded against it, to which we have made a reference earlier19. When once the question of a presumption under S. 114, illustration (f) of the Evidence Act does not fall to be considered in these proceedings, in view of the specific finding recorded by the Appellate Tribunal against the Revenue, and accepted by the High court, in our opinion, the High Court was not justified in certifying, on this ground, that the cases are fit for appeal to this Court. | 1 | 4,346 | 1,049 | ### Instruction:
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fitness, it is inevitable that there should be some discussion about the nature of the questions that arose for decision before the Bench which answered the Reference. 14. While we agree with Mr. Dhebar that reasons for granting the certificate must be given by the learned Judges in the order, those reasons, however, in our opinion, must be confined to the material on record, which must have been before the Court which dealt with an appeal or Reference and in respect of which decision, the aggrieved party desires to come in appeal to this Court on certificate on the ground that a substantial question of law arises for consideration. 15. We are not inclined to accept the contention of Mr. Dheber that the High Court has properly exercised its jurisdiction in certifying that the two cases are fit for appeal to this Court. We must frankly admit that when we went through the order of the High Court granting the certificates, we felt that the learned Judges were either sitting in appeal over the judgment of the Division Bench, which answered the Reference, or were themselves dealing with the Reference under S. 66 (1) of the Act, in the first instance. Unless the learned Judges were exercising one or the other of the above jurisdiction, the criticism about the approach made by the Division Bench when answering the Reference, could not be justified." It is clear that when dealing with application for grant of certificate of fitness, the court was exercising no such jurisdiction. It must be emphasised that in the circumstances like this, the Jurisdiction of the Court, at the stage of dealing with application for grant of certificate is limited only to considering whether any substantial question of law arises having due regard to the material on record and the discussion on facts and law contained in the judgment of the High Court which dealt with the appeal or Reference or any other proceeding, as the case may be. 16. Regarding the question that the assessee may be considered to have received the payments at Bombay, the learned Judges have quite rightly declined to grant a certificate on the ground that the point is covered by the decisions of this Court and that no substantial question of law arises. 17. As we have already pointed out the certificate has been granted by the learned Judges on the basis that the general question whether a presumption under S. 114 illustration (f) of the Evidence Act can be raised is of great importance and that it is likely to arise in many future cases not restricted to income-tax. It should be remembered that this Court should not be invited to decide any question of law much less the substantial question of law purely in the abstract. Such question of law must reasonably arise on the basis of the material on record. Further, the substantial question of law, in order to be certified as fit to be decided by this Court must arise on the facts of a particular case. With great respect to the learned Judges who dealt with the application for grant of certificate, we are constrained to remark that they have ignored the finding of fact recorded by the Appellate Tribunal in its supplementary statement dated March, 18, 1961 that the Revenue has placed no materials to prove that the cheques were posted at Delhi. It should be remembered that when the reference was made in the first instance, the Punjab High Court felt that the Appellate Tribunal had not given any finding as to whether the cheques in question were sent to the assessee by post and whether the assessee had given any direction in that regard to the Government of india. In view of the absence of such a finding, the High Court by its order dated March 24, 1955 called for a supplementary statement from the Appellate Tribunal under S. 66 (4) of the Act. This order was challenged before this Court by the assessee unsuccessfully. The purpose of seeking a supplementary statement was to focus the attention of the Appellate Tribunal to this aspect, namely, the posting of cheques claimed to have been done at Delhi by the Government of India. That the Revenue miserably failed to establish the fact of posting of cheques at Delhi, is clear from the finding recorded by the Appellate Tribunal in its supplementary statement, which finding has been accepted by the High Court in its judgment dated February 21, 1967 when aswering the Reference. The High Court has also then recorded a finding that the Revenue has failed to place any material before the Appellate Tribunal to prove that the cheques in question were being sent by the Government of India through post. Unfortunately, all these aspects have been missed by the learned Judges when dealing with the applications filed by the Revenue for the grant of certificates. 18. On the above findings recorded by the Appellate Tribunal and confirmed by the High Court, no question of applying any presumption under S. 114 of the Evidence Act arises for consideration. The learned Judges, dealing with the applications for grant of certificates, had no jurisdiction to go behind the finding recorded in the original judgment disposing of the Reference. In our opinion, the entire discussion on this aspect of posting of the cheques at Delhi by the learned Judges is beside the point, as that question no longer was available to the Revenue, in view of the finding recorded against it, to which we have made a reference earlier. 19. When once the question of a presumption under S. 114, illustration (f) of the Evidence Act does not fall to be considered in these proceedings, in view of the specific finding recorded by the Appellate Tribunal against the Revenue, and accepted by the High court, in our opinion, the High Court was not justified in certifying, on this ground, that the cases are fit for appeal to this Court.
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14. While we agree with Mr. Dhebar that reasons for granting the certificate must be given by the learned Judges in the order, those reasons, however, in our opinion, must be confined to the material on record, which must have been before the Court which dealt with an appeal or Reference and in respect of which decision, the aggrieved party desires to come in appeal to this Court on certificate on the ground that a substantial question of law arises for consideration15. We are not inclined to accept the contention of Mr. Dheber that the High Court has properly exercised its jurisdiction in certifying that the two cases are fit for appeal to this Court. We must frankly admit that when we went through the order of the High Court granting the certificates, we felt that the learned Judges were either sitting in appeal over the judgment of the Division Bench, which answered the Reference, or were themselves dealing with the Reference under S. 66 (1) of the Act, in the first instance. Unless the learned Judges were exercising one or the other of the above jurisdiction, the criticism about the approach made by the Division Bench when answering the Reference, could not be justified." It is clear that when dealing with application for grant of certificate of fitness, the court was exercising no such jurisdiction. It must be emphasised that in the circumstances like this, the Jurisdiction of the Court, at the stage of dealing with application for grant of certificate is limited only to considering whether any substantial question of law arises having due regard to the material on record and the discussion on facts and law contained in the judgment of the High Court which dealt with the appeal or Reference or any other proceeding, as the case may be16. Regarding the question that the assessee may be considered to have received the payments at Bombay, the learned Judges have quite rightly declined to grant a certificate on the ground that the point is covered by the decisions of this Court and that no substantial question of law arises17. As we have already pointed out the certificate has been granted by the learned Judges on the basis that the general question whether a presumption under S. 114 illustration (f) of the Evidence Act can be raised is of great importance and that it is likely to arise in many future cases not restricted to. It should be remembered that this Court should not be invited to decide any question of law much less the substantial question of law purely in the abstract. Such question of law must reasonably arise on the basis of the material on record. Further, the substantial question of law, in order to be certified as fit to be decided by this Court must arise on the facts of a particular case. With great respect to the learned Judges who dealt with the application for grant of certificate, we are constrained to remark that they have ignored the finding of fact recorded by the Appellate Tribunal in its supplementary statement dated March, 18, 1961 that the Revenue has placed no materials to prove that the cheques were posted at Delhi. It should be remembered that when the reference was made in the first instance, the Punjab High Court felt that the Appellate Tribunal had not given any finding as to whether the cheques in question were sent to the assessee by post and whether the assessee had given any direction in that regard to the Government of india. In view of the absence of such a finding, the High Court by its order dated March 24, 1955 called for a supplementary statement from the Appellate Tribunal under S. 66 (4) of the Act. This order was challenged before this Court by the assessee unsuccessfully. The purpose of seeking a supplementary statement was to focus the attention of the Appellate Tribunal to this aspect, namely, the posting of cheques claimed to have been done at Delhi by the Government of India. That the Revenue miserably failed to establish the fact of posting of cheques at Delhi, is clear from the finding recorded by the Appellate Tribunal in its supplementary statement, which finding has been accepted by the High Court in its judgment dated February 21, 1967 when aswering the Reference. The High Court has also then recorded a finding that the Revenue has failed to place any material before the Appellate Tribunal to prove that the cheques in question were being sent by the Government of India through post. Unfortunately, all these aspects have been missed by the learned Judges when dealing with the applications filed by the Revenue for the grant of certificates18. On the above findings recorded by the Appellate Tribunal and confirmed by the High Court, no question of applying any presumption under S. 114 of the Evidence Act arises for consideration. The learned Judges, dealing with the applications for grant of certificates, had no jurisdiction to go behind the finding recorded in the original judgment disposing of the Reference. In our opinion, the entire discussion on this aspect of posting of the cheques at Delhi by the learned Judges is beside the point, as that question no longer was available to the Revenue, in view of the finding recorded against it, to which we have made a reference earlier19. When once the question of a presumption under S. 114, illustration (f) of the Evidence Act does not fall to be considered in these proceedings, in view of the specific finding recorded by the Appellate Tribunal against the Revenue, and accepted by the High court, in our opinion, the High Court was not justified in certifying, on this ground, that the cases are fit for appeal to this Court.
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Kavita Vs. Deepak | (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.” 17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 , the Court observed: “8. The compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.” 18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/- , the loss of income during the period of treatment, which continued till the judgment of the High Court i.e. from 2.5.2004 to 18.5.2010 would be Rs.1,47,000/- approximately. 20. As per the disability certificate issued on 23.8.2006, the appellant had virtually become vegetable and, therefore, she is not in a position to look after herself what to say of discharging her functions as partner of Tirupati Enterprises. Therefore, by applying the multiplier of 17, the future loss of earning would come to Rs.3,67,200/-. 21. In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming the claimant’s life expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/- per month and physiotherapy expenses at the rate of Rs.3000/- per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/- and another Rs.3,00,000/- is awarded under the heads of loss of amenities and loss of life expectancy. | 1[ds]In R.D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551 , this Court observed that the exercise for determination of compensation in accident cases involve some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability. But these elements are required to be considered in an objective manner. In that case, the claimant was a retired judge and practicing when he met with an accident that caused 100% disability and paraplegia below the waist. While determining compensation payable to him in a claim filed under Section 110A, Motor Vehicles Act,In Arvind Kumar Mishra v. New India Assurance Co. Ltd. and another (2010) 10 SCC 254 , the Court sought to assess future earnings of a final year engineering student who received injuries to the brain among others which resulted in 70% permanent disability and he needed a helper throughout his life. The Courtdo not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life times earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonablesupplied)15. In Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1 , this Court was called upon to assess the compensation payable under the Consumer Protection Act, 1986 to the victim of medical negligence who was left completely paralyzed at the age of 20. After detailed examination of the issue, the Court observed asWe must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress,a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the followingprovision of the motor Vehicles Act, 1988 (the Act, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.The heads under which compensation is awarded in personal injury cases are the following:Pecuniary damages (Special damages)(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:(a) Loss of earning during the period of treatment;(b) Loss of future earnings on account of permanent disability.(iii) Future medicaldamages (General damages)(iv) Damages for pain, suffering and trauma as a consequence of the injuries.(v) Loss of amenities (and/or loss of prospects of marriage).(vi) Loss of expectation of life (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 , the CourtThe compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming thelife expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/per month and physiotherapy expenses at the rate of Rs.3000/per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/and another Rs.3,00,000/is awarded under the heads of loss of amenities and loss of life expectancy. | 1 | 4,787 | 2,213 | ### 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:
(shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.” 17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 , the Court observed: “8. The compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.” 18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/- , the loss of income during the period of treatment, which continued till the judgment of the High Court i.e. from 2.5.2004 to 18.5.2010 would be Rs.1,47,000/- approximately. 20. As per the disability certificate issued on 23.8.2006, the appellant had virtually become vegetable and, therefore, she is not in a position to look after herself what to say of discharging her functions as partner of Tirupati Enterprises. Therefore, by applying the multiplier of 17, the future loss of earning would come to Rs.3,67,200/-. 21. In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming the claimant’s life expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/- per month and physiotherapy expenses at the rate of Rs.3000/- per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/- and another Rs.3,00,000/- is awarded under the heads of loss of amenities and loss of life expectancy.
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1
### Explanation:
earn or could have earned.The heads under which compensation is awarded in personal injury cases are the following:Pecuniary damages (Special damages)(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:(a) Loss of earning during the period of treatment;(b) Loss of future earnings on account of permanent disability.(iii) Future medicaldamages (General damages)(iv) Damages for pain, suffering and trauma as a consequence of the injuries.(v) Loss of amenities (and/or loss of prospects of marriage).(vi) Loss of expectation of life (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 , the CourtThe compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming thelife expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/per month and physiotherapy expenses at the rate of Rs.3000/per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/and another Rs.3,00,000/is awarded under the heads of loss of amenities and loss of life expectancy.
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Govinddas & Ors. Etc. Etc Vs. Income Tax Officer & Another | a Hindu undivided family is completed under section 143 or section 144 of the new Act. It can have no application where the assessment of a Hindu undivided family is completed under the corresponding provisions of the old Act. Such a case would be governed by section 25A of the old Act which does not impose any personal liability on the members in case of partial partition and to construe sub-section (6) of section 171 as applicable in such a case with consequential effect of casting on the members personal liability which did not, exist under section 25A, would be to give retrospective operation to sub-section (6) of section 171 which is not warranted either by the express language of that provision or by necessary implication. Sub-section (6) of section 171 cam be given full effect by interpreting it as applicable only in a case where the assessment of a Hindu undivided family is made under section 143 or section 144 of the new Act. We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating or imposing a new obligation or liability, construe sub-section (6) of section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu undivided family for the assessment years 1950-51, to 1956-57 were completed in accordance with the provisions of the old Act which included section 25A and the Income-tax Officer was, therefore, not entitled to avail of the provision enacted in sub-section (6) read with sub-section (7) of section 171 of the new Act for the purposes of recovering the tax or any part thereof personally from any members of the joint family including the petitionersBut the revenue authorities then fell back on another contention, namely, that since the assessments of the Hindu undivided family for the assessment years 1950-51 to 1956-57 were reopened by the Income-tax Officer by issuing notices under section 148 and the reassessments were completed by orders dated 26th March, 1970, under section 147, in virtue of section 297(2)(d) of the new Act, sub-section (6) of section 171 was, on plain terms of section 297(2)(d), applicable and the Income-tax Officer was entitled to recover personally from the members, the tax reassessed on the Hindu undivided family, as it was found by him that the family had already effected a partial partition. This contention requires an examination of the true meaning and effect of section 297(2)(d). That sub-section as two clauses and it reads as follows:" (d) where in respect of any assessment year after the year ending on the 31st day of March, 1940, --(i) a notice under section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed ;(ii) any income chargeable to tax had escaped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly."7. Admittedly, in the present case, clause (ii) of section 297(2)(d) applied since no proceedings under section 34 of the old Act in respect of escaped income of the Hindu undivided family were pending at the time of the commencement of the new Act and it was for this reason that notices under section 148 were issued by the Income-tax Officer for reopening the assessments of the Hindu undivided family for the assessment years, 1950-51 to 1956-57. Now, clause (ii) of section 297(2)(d) provides that when a noticed under section 148 is issued for reopening an assessment "all the provisions of this Act shall apply accordingly". The argument of the revenue authorities, therefore, was that when notices under section 148 were issued for reopening the assessments of the Hindu undivided family, all the provisions of the new Act became applicable and they included sub-section (6) of section 171 and, therefore, that sub-section was applicable for recovery of the tax reassessed on the Hindu undivided family pursuant to the notices under section 148. This argument is without force. It is based on a misconstruction of the words "all the provisions of this Act shall apply accordingly" in clause (ii) of section 297(2)(d). These words merely refer to the machinery provided in the new Act for the assessment of the escaped income. They do not import any substantive provisions of the new Act which create rights or liabilities. The word "accordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment. The substantive law to be applied for determining the liability to tax must necessarily be the law under the old Act, for that is the law which applied during the relevant assessment years and it is that law which must govern the liability of the parties. Though sub-sections (1) to (5) of section 171 merely lay down the machinery for assessment of a Hindu undivided family after partition, sub-section (6) of section 171 is clearly a substantive provision imposing new liability on the members for the tax determined as payable by the joint family. The words "all the provisions of this Act shall apply accordingly" cannot, therefore, be construed as incorporating by reference sub-section (6) of section 171 so as to make it applicable for recovery of the tax reassessed on the Hindu undivided family in cases falling within clause (ii) of section 297(2)(d). This contention of the revenue authorities must accordingly be rejected | 1[ds]Of these two arguments, the first is, in our opinion, well founded and hence it is not necessary to consider the secondWe may first look at section 25A of the old Act. The position which obtained before this section was introduced in the old Act was that though a Hindu undivided family was a unit of assessment, there was no machinery provided in the Act for levying tax and enforcing liability to tax in cases where a Hindu undivided family had received income in the year of account but was no longer in existence as such at the time of assessment. This difficulty was the more acute by reason of the provision contained in section 14(1) which said that tax shall not be payable by an assessee in respect of any sum which he received as a member of a Hindu undivided family. The result was that the income of a Hindu, undivided family could not be assessed and the tax could not be collected from the members of the family, if at the time of making the assessment, the family was divided. This was obviously a lacuna and the legislature, therefore, introduced section 25A in the old Act for assessment of the income of a Hindu undivided family and enforcement of the liability to tax, where the Hindu undivided family was no longer in existence at the date of assessment. But, as pointed out by this court in Additional Income-tax Officer v. Thimmayya, this section went very much beyond what was required for rectifying the defect. It made two substantive provisions, namely : (1) a Hindu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and therefore liable to be taxed in that status, unless an order is passed in respect of that family recording partition of its property as contemplated by sub-sections (1) and (2) if, at the time of making an assessment, it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or group members in definite portions, i.e., a complete partition of the entire estate is made as distinct from a partial partition, the Income-tax Officer shall hold an inquiry and if he is satisfied that the partition has taken place, he shall record an order to that effect. Where such an order has been passed ; the Income-tax Officer would be entitled to make, an assessment of the total income received by or on behalf of the Hindu undivided family as if no partition had taken place. Now, ordinarily, when tax is assessed on a Hindu undivided family, it would be payable out of the properties of the joint family, even after they are partitioned amongst the members and no member would be personally liable for discharging the liability to tax. But sub-section (2) made a radical departure and provided that when, upon a total partition, an order under sub-section (1) has been recorded, the income-tax Officer shall apportion the tax assessed on the total income of the Hindu undivided family and assess each member or group of members in accordance with the provisions of section 23 by adding to the tax for which such member or group of members may be separately liable, tax proportionate to the portion of the undivided family property alloted to him or to the group and all members or groups of members shall be "liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family". The liability which, so long as an order is not recorded under sub-section (1), would be restricted to the assets of the Hindu undivided family, was thus, by virtue of sub-section (2), transformed, when the order is recorded, into , personal liability of the members for the amount of tax due by the Hindu undivided family. But the order could be recorded only if there was total partition as contra-distinguished, from partial partition, and on a claim made by or on behalf of the members of the family, the Income-tax Officer, after holding an inquiry, was satisfied that such total partition had taken place. Now, in the present case the partition which took place between the members on 15th November, 1955, was partial as regards the properties of the joint family and there was no total partition effected amongst the members at any time. Hence, the liability of the Hindu undivided family to tax for the assessment years 1950-51 to 1956-57 could be recovered only out of the assets of the joint family and it could not be apportioned amongst the members nor could the members be held jointly and severally liable for payment of such tax liability under section 25A of the oldit is clear on a plain grammatical construction of the language of sub-sections (2) to (5) of section 171 that these sub-sections contemplate a case where at the time of making assessment under section 143 or 144, a claim is made by or on behalf of any member of a Hindu family that a total or partial partition has taken place among its members. Then the claim would be investigated by the Income-tax Officer and if satisfied, the Income-tax Officer would record a finding that there has been such partition of the joint family property and the assessment of the total income of the joint family would then be made as if no such partition had taken place. And in such a case all the members would be jointly and severally liable for the tax assessed as payable by the joint family and, for determining their several liability, the tax assessed on the joint family would be apportioned among the members "according to the portion of the joint family property allotted to" each of them. But it may happen that at the time of making assessment under section, 143 or 144 no claim of partition, total or partial, is put forward on behalf of any member of a Hindu family, either because no such partition has taken place or because of inadvertent or deliberate omission on the part of the members of the Hindu family and where that happens, the Hindu family would continue to be assessed as a Hindu undivided family and the tax determined as payable by it would be recoverable only out of the joint family properties and no member would be personally liable for any part of the tax, even though an order recording partition may have been passed after the assessment, since sub-section (4)(b) of section 171 would have no application in such a case. That was also the position under section 25A of the old Act with this difference that under that section the only partition which could be recorded was total partition and not partial partition. The legislature, while enacting section 171 in the new Act, decided to introduce another radical departure from the old Act by providing in sub-section (6) that even where no claim of total or partial partition is made at the time of making assessment under section 143 or section 144 and hence no order recording partition is made in the course of assessment as contemplated under sub-sections (2) to (5), if it is found, after the completion of the assessment, that the family has already effected a partition, total or partial, all the members shall be jointly and severally liable for the tax assessed as payable by the joint family and the tax liability shall be apportioned among the members according to the portion of the joint family property allotted to each of them. Sub-section (6) of section 171 thus, for the first time imposed, in cases of this kind, joint and several liability on the members for the tax assessed on the Hindu undivided family and this was a personal liability as distinct from, liability limited to the joint family property received on partitionNow, it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in volume 36 of the Laws of England (third edition) and reiterated in several decisions of this court as well as English courts is that "all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective" and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. If we apply this principle of interpretation, it is clear that sub-section (6) of section 171 applies only to a situation where the assessment of a Hindu undivided family is completed under section 143 or section 144 of the new Act. It can have no application where the assessment of a Hindu undivided family is completed under the corresponding provisions of the old Act. Such a case would be governed by section 25A of the old Act which does not impose any personal liability on the members in case of partial partition and to construe sub-section (6) of section 171 as applicable in such a case with consequential effect of casting on the members personal liability which did not, exist under section 25A, would be to give retrospective operation to sub-section (6) of section 171 which is not warranted either by the express language of that provision or by necessary implication. Sub-section (6) of section 171 cam be given full effect by interpreting it as applicable only in a case where the assessment of a Hindu undivided family is made under section 143 or section 144 of the new Act. We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating or imposing a new obligation or liability, construe sub-section (6) of section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu undivided family for the assessment years 1950-51, to 1956-57 were completed in accordance with the provisions of the old Act which included section 25A and the Income-tax Officer was, therefore, not entitled to avail of the provision enacted in sub-section(6) read withsub-section (7) of section 171 of the new Act for the purposes of recovering the tax or any part thereof personally from any members of the joint family including the petitionersBut the revenue authorities then fell back on another contention, namely, that since the assessments of the Hindu undivided family for the assessment years 1950-51 to 1956-57 were reopened by the Income-tax Officer by issuing notices under section 148 and the reassessments were completed by orders dated 26th March, 1970, under section 147, in virtue of section 297(2)(d) of the new Act, sub-section (6) of section 171 was, on plain terms of section 297(2)(d), applicable and the Income-tax Officer was entitled to recover personally from the members, the tax reassessed on the Hindu undivided family, as it was found by him that the family had already effected a partial partition. This contention requires an examination of the true meaning and effect of sectionin the present case, clause (ii) of section 297(2)(d) applied since no proceedings under section 34 of the old Act in respect of escaped income of the Hindu undivided family were pending at the time of the commencement of the new Act and it was for this reason that notices under section 148 were issued by the Income-tax Officer for reopening the assessments of the Hindu undivided family for the assessment years, 1950-51 to 1956-57. Now, clause (ii) of section 297(2)(d) provides that when a noticed under section 148 is issued for reopening an assessment "all the provisions of this Act shall applyis based on a misconstruction of the words "all the provisions of this Act shall apply accordingly" in clause (ii) of section 297(2)(d). These words merely refer to the machinery provided in the new Act for the assessment of the escaped income. They do not import any substantive provisions of the new Act which create rights or liabilities. The word "accordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment. The substantive law to be applied for determining the liability to tax must necessarily be the law under the old Act, for that is the law which applied during the relevant assessment years and it is that law which must govern the liability of the parties. Though sub-sections (1) to (5) of section 171 merely lay down the machinery for assessment of a Hindu undivided family after partition, sub-section (6) of section 171 is clearly a substantive provision imposing new liability on the members for the tax determined as payable by the joint family. The words "all the provisions of this Act shall apply accordingly" cannot, therefore, be construed as incorporating by reference sub-section (6) of section 171 so as to make it applicable for recovery of the tax reassessed on the Hindu undivided family in cases falling within clause (ii) of section 297(2)(d). | 1 | 5,356 | 2,576 | ### 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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a Hindu undivided family is completed under section 143 or section 144 of the new Act. It can have no application where the assessment of a Hindu undivided family is completed under the corresponding provisions of the old Act. Such a case would be governed by section 25A of the old Act which does not impose any personal liability on the members in case of partial partition and to construe sub-section (6) of section 171 as applicable in such a case with consequential effect of casting on the members personal liability which did not, exist under section 25A, would be to give retrospective operation to sub-section (6) of section 171 which is not warranted either by the express language of that provision or by necessary implication. Sub-section (6) of section 171 cam be given full effect by interpreting it as applicable only in a case where the assessment of a Hindu undivided family is made under section 143 or section 144 of the new Act. We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating or imposing a new obligation or liability, construe sub-section (6) of section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu undivided family for the assessment years 1950-51, to 1956-57 were completed in accordance with the provisions of the old Act which included section 25A and the Income-tax Officer was, therefore, not entitled to avail of the provision enacted in sub-section (6) read with sub-section (7) of section 171 of the new Act for the purposes of recovering the tax or any part thereof personally from any members of the joint family including the petitionersBut the revenue authorities then fell back on another contention, namely, that since the assessments of the Hindu undivided family for the assessment years 1950-51 to 1956-57 were reopened by the Income-tax Officer by issuing notices under section 148 and the reassessments were completed by orders dated 26th March, 1970, under section 147, in virtue of section 297(2)(d) of the new Act, sub-section (6) of section 171 was, on plain terms of section 297(2)(d), applicable and the Income-tax Officer was entitled to recover personally from the members, the tax reassessed on the Hindu undivided family, as it was found by him that the family had already effected a partial partition. This contention requires an examination of the true meaning and effect of section 297(2)(d). That sub-section as two clauses and it reads as follows:" (d) where in respect of any assessment year after the year ending on the 31st day of March, 1940, --(i) a notice under section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed ;(ii) any income chargeable to tax had escaped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly."7. Admittedly, in the present case, clause (ii) of section 297(2)(d) applied since no proceedings under section 34 of the old Act in respect of escaped income of the Hindu undivided family were pending at the time of the commencement of the new Act and it was for this reason that notices under section 148 were issued by the Income-tax Officer for reopening the assessments of the Hindu undivided family for the assessment years, 1950-51 to 1956-57. Now, clause (ii) of section 297(2)(d) provides that when a noticed under section 148 is issued for reopening an assessment "all the provisions of this Act shall apply accordingly". The argument of the revenue authorities, therefore, was that when notices under section 148 were issued for reopening the assessments of the Hindu undivided family, all the provisions of the new Act became applicable and they included sub-section (6) of section 171 and, therefore, that sub-section was applicable for recovery of the tax reassessed on the Hindu undivided family pursuant to the notices under section 148. This argument is without force. It is based on a misconstruction of the words "all the provisions of this Act shall apply accordingly" in clause (ii) of section 297(2)(d). These words merely refer to the machinery provided in the new Act for the assessment of the escaped income. They do not import any substantive provisions of the new Act which create rights or liabilities. The word "accordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment. The substantive law to be applied for determining the liability to tax must necessarily be the law under the old Act, for that is the law which applied during the relevant assessment years and it is that law which must govern the liability of the parties. Though sub-sections (1) to (5) of section 171 merely lay down the machinery for assessment of a Hindu undivided family after partition, sub-section (6) of section 171 is clearly a substantive provision imposing new liability on the members for the tax determined as payable by the joint family. The words "all the provisions of this Act shall apply accordingly" cannot, therefore, be construed as incorporating by reference sub-section (6) of section 171 so as to make it applicable for recovery of the tax reassessed on the Hindu undivided family in cases falling within clause (ii) of section 297(2)(d). This contention of the revenue authorities must accordingly be rejected
### Response:
1
### Explanation:
assessed on the Hindu undivided family and this was a personal liability as distinct from, liability limited to the joint family property received on partitionNow, it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in volume 36 of the Laws of England (third edition) and reiterated in several decisions of this court as well as English courts is that "all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective" and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. If we apply this principle of interpretation, it is clear that sub-section (6) of section 171 applies only to a situation where the assessment of a Hindu undivided family is completed under section 143 or section 144 of the new Act. It can have no application where the assessment of a Hindu undivided family is completed under the corresponding provisions of the old Act. Such a case would be governed by section 25A of the old Act which does not impose any personal liability on the members in case of partial partition and to construe sub-section (6) of section 171 as applicable in such a case with consequential effect of casting on the members personal liability which did not, exist under section 25A, would be to give retrospective operation to sub-section (6) of section 171 which is not warranted either by the express language of that provision or by necessary implication. Sub-section (6) of section 171 cam be given full effect by interpreting it as applicable only in a case where the assessment of a Hindu undivided family is made under section 143 or section 144 of the new Act. We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating or imposing a new obligation or liability, construe sub-section (6) of section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu undivided family for the assessment years 1950-51, to 1956-57 were completed in accordance with the provisions of the old Act which included section 25A and the Income-tax Officer was, therefore, not entitled to avail of the provision enacted in sub-section(6) read withsub-section (7) of section 171 of the new Act for the purposes of recovering the tax or any part thereof personally from any members of the joint family including the petitionersBut the revenue authorities then fell back on another contention, namely, that since the assessments of the Hindu undivided family for the assessment years 1950-51 to 1956-57 were reopened by the Income-tax Officer by issuing notices under section 148 and the reassessments were completed by orders dated 26th March, 1970, under section 147, in virtue of section 297(2)(d) of the new Act, sub-section (6) of section 171 was, on plain terms of section 297(2)(d), applicable and the Income-tax Officer was entitled to recover personally from the members, the tax reassessed on the Hindu undivided family, as it was found by him that the family had already effected a partial partition. This contention requires an examination of the true meaning and effect of sectionin the present case, clause (ii) of section 297(2)(d) applied since no proceedings under section 34 of the old Act in respect of escaped income of the Hindu undivided family were pending at the time of the commencement of the new Act and it was for this reason that notices under section 148 were issued by the Income-tax Officer for reopening the assessments of the Hindu undivided family for the assessment years, 1950-51 to 1956-57. Now, clause (ii) of section 297(2)(d) provides that when a noticed under section 148 is issued for reopening an assessment "all the provisions of this Act shall applyis based on a misconstruction of the words "all the provisions of this Act shall apply accordingly" in clause (ii) of section 297(2)(d). These words merely refer to the machinery provided in the new Act for the assessment of the escaped income. They do not import any substantive provisions of the new Act which create rights or liabilities. The word "accordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment. The substantive law to be applied for determining the liability to tax must necessarily be the law under the old Act, for that is the law which applied during the relevant assessment years and it is that law which must govern the liability of the parties. Though sub-sections (1) to (5) of section 171 merely lay down the machinery for assessment of a Hindu undivided family after partition, sub-section (6) of section 171 is clearly a substantive provision imposing new liability on the members for the tax determined as payable by the joint family. The words "all the provisions of this Act shall apply accordingly" cannot, therefore, be construed as incorporating by reference sub-section (6) of section 171 so as to make it applicable for recovery of the tax reassessed on the Hindu undivided family in cases falling within clause (ii) of section 297(2)(d).
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Butu Prasad Kumbhar Vs. Steel Authority of India Ltd | of compensation for acquired land was a poor solace and in any case the State Government having assured and the Central Government having advised the SAIL to give employment to the displaced persons and the petitioners and others like them having been kept under a promise that they shall be given employment they are precluded on principle of promissory estoppel from backing out and claiming either that the employment was not available or that there was over staffing or that they have to accommodate the displaced persons of Mandira bandh. It was further urged that apart from persons whose land had been acquired the assurance was to offer employment to those eligible displaced persons who in consequence of setting up of the steel plant were rendered unemployed. He also pleaded vehemently that not only the adult members and other members of the family but even those children who were then minor but they have now become major or they being descendants and may be the second generation were entitled, on the same principle of being deprived of their bread and butter which could have been available to them after they became major to bc employed or at least given preference.5. What stands admitted is that the land was acquired in 1953-54 and the steel plant was set up in 1959. Yet these petitioners many of whom, we are informed, are already in employment of the respondents and that was vehemently urged by the learned Solicitor General as a preliminary objection to the maintainability of the petition, approached this Court in 1992 for enforcement of their rights. That a petition on incorrect facts and after such an inordinate delay which has resulted in a generation gap normally is sufficient for refusal to exercise the extraordinary jurisdiction. However, considering the nature of the problem and respondents decision even in 1988 in relation to giving employment to displaced persons it did not appear expedient to dismiss the petition on ground of delay or the conduct of some of the petitioners in joining those who have not been given employment. There is no satisfactory answer to the averment in the counter affidavit that the respondent company having provided employment to 4557 displaced persons when only 2901 families were affected by the land acquisition and the assurance given was to employ only one person of each family there does not appear much substance in the grievance made by the petitioners. Further no details have been furnished by the petitioners in respect of the persons whose list has been appended with the writ petition as to whether any member of their family was given appointment by the Steel Plant or not. There is no reason, therefore, to doubt that one person of every displaced family whose land was acquired has been given employment and, therefore, the letter and spirit of the scheme to accommodate the displaced persons stood satisfied. 6. The constitutional challenge based on Article 21 does not appear to have any substance. In Olga Tellis (supra) it was observed by this Court that the concept of right of life conferred was wide and farreaching and the deprivation of the right to livelihood without following the procedure established by law was violative of the fundamental guarantee to a citizen. Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants, It is established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have, resulted in violation of any fundamental right yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the Plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the otherwise. Acceptance of such a demand would be against Article 14. 7. The learned Solicitor General however stated that even though the public sector undertaking because of being over- staffed is being put to great strain and even though the Government of India had taken a policy decision as far back as 1986 not to give employment to any one in future, yet the respondent-Steel Plant after verification has found 247 persons eligible for being given employment. They are willing to abide by it. He has pointed out that in die meantime another darn has been constructed and the persons who had been displaced have also been required to be accommodated and, therefore, a scheme has been framed in which 80% displaced in consequence of Mandira Dam and 20% out of 247 are being given employment since 1993. He stated that nearly 50 persons out of 247 have already been absorbed. We are of the opinion that giving employment to 20% may take longer time and since the age bar has been put at 35 it would be appropriate if the SAIL expedited the absorption of these persons by increasing their number from 20% to 40% each year. | 0[ds]Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants, It is established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have, resulted in violation of any fundamental right yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the Plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the otherwise. Acceptance of such a demand would be against Article 14.The learned Solicitor General however stated that even though the public sector undertaking because of being over- staffed is being put to great strain and even though the Government of India had taken a policy decision as far back as 1986 not to give employment to any one in future, yet the respondent-Steel Plant after verification has found 247 persons eligible for being given employment. They are willing to abide by it. He has pointed out that in die meantime another darn has been constructed and the persons who had been displaced have also been required to be accommodated and, therefore, a scheme has been framed in which 80% displaced in consequence of Mandira Dam and 20% out of 247 are being given employment since 1993. He stated that nearly 50 persons out of 247 have already been absorbed. We are of the opinion that giving employment to 20% may take longer time and since the age bar has been put at 35 it would be appropriate if the SAIL expedited the absorption of these persons by increasing their number from 20% to 40% each year. | 0 | 2,275 | 486 | ### 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:
of compensation for acquired land was a poor solace and in any case the State Government having assured and the Central Government having advised the SAIL to give employment to the displaced persons and the petitioners and others like them having been kept under a promise that they shall be given employment they are precluded on principle of promissory estoppel from backing out and claiming either that the employment was not available or that there was over staffing or that they have to accommodate the displaced persons of Mandira bandh. It was further urged that apart from persons whose land had been acquired the assurance was to offer employment to those eligible displaced persons who in consequence of setting up of the steel plant were rendered unemployed. He also pleaded vehemently that not only the adult members and other members of the family but even those children who were then minor but they have now become major or they being descendants and may be the second generation were entitled, on the same principle of being deprived of their bread and butter which could have been available to them after they became major to bc employed or at least given preference.5. What stands admitted is that the land was acquired in 1953-54 and the steel plant was set up in 1959. Yet these petitioners many of whom, we are informed, are already in employment of the respondents and that was vehemently urged by the learned Solicitor General as a preliminary objection to the maintainability of the petition, approached this Court in 1992 for enforcement of their rights. That a petition on incorrect facts and after such an inordinate delay which has resulted in a generation gap normally is sufficient for refusal to exercise the extraordinary jurisdiction. However, considering the nature of the problem and respondents decision even in 1988 in relation to giving employment to displaced persons it did not appear expedient to dismiss the petition on ground of delay or the conduct of some of the petitioners in joining those who have not been given employment. There is no satisfactory answer to the averment in the counter affidavit that the respondent company having provided employment to 4557 displaced persons when only 2901 families were affected by the land acquisition and the assurance given was to employ only one person of each family there does not appear much substance in the grievance made by the petitioners. Further no details have been furnished by the petitioners in respect of the persons whose list has been appended with the writ petition as to whether any member of their family was given appointment by the Steel Plant or not. There is no reason, therefore, to doubt that one person of every displaced family whose land was acquired has been given employment and, therefore, the letter and spirit of the scheme to accommodate the displaced persons stood satisfied. 6. The constitutional challenge based on Article 21 does not appear to have any substance. In Olga Tellis (supra) it was observed by this Court that the concept of right of life conferred was wide and farreaching and the deprivation of the right to livelihood without following the procedure established by law was violative of the fundamental guarantee to a citizen. Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants, It is established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have, resulted in violation of any fundamental right yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the Plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the otherwise. Acceptance of such a demand would be against Article 14. 7. The learned Solicitor General however stated that even though the public sector undertaking because of being over- staffed is being put to great strain and even though the Government of India had taken a policy decision as far back as 1986 not to give employment to any one in future, yet the respondent-Steel Plant after verification has found 247 persons eligible for being given employment. They are willing to abide by it. He has pointed out that in die meantime another darn has been constructed and the persons who had been displaced have also been required to be accommodated and, therefore, a scheme has been framed in which 80% displaced in consequence of Mandira Dam and 20% out of 247 are being given employment since 1993. He stated that nearly 50 persons out of 247 have already been absorbed. We are of the opinion that giving employment to 20% may take longer time and since the age bar has been put at 35 it would be appropriate if the SAIL expedited the absorption of these persons by increasing their number from 20% to 40% each year.
### Response:
0
### Explanation:
Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants, It is established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have, resulted in violation of any fundamental right yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the Plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the otherwise. Acceptance of such a demand would be against Article 14.The learned Solicitor General however stated that even though the public sector undertaking because of being over- staffed is being put to great strain and even though the Government of India had taken a policy decision as far back as 1986 not to give employment to any one in future, yet the respondent-Steel Plant after verification has found 247 persons eligible for being given employment. They are willing to abide by it. He has pointed out that in die meantime another darn has been constructed and the persons who had been displaced have also been required to be accommodated and, therefore, a scheme has been framed in which 80% displaced in consequence of Mandira Dam and 20% out of 247 are being given employment since 1993. He stated that nearly 50 persons out of 247 have already been absorbed. We are of the opinion that giving employment to 20% may take longer time and since the age bar has been put at 35 it would be appropriate if the SAIL expedited the absorption of these persons by increasing their number from 20% to 40% each year.
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Commissioner of Income Tax, West Bengal II Vs. Electro House | therefore proceeded against the assessee under section 33B of the Act. Before doing so, he issued a notice to the firm on July 18, 1962, which reads thus"From Shri F. H. Vallibhoy Commissioner of Income-tax West Bengal To M/s. Electro HouseG. T. Road Asansol Gentlemen Sub: Income-tax Assessment--1959-60 and 1960-61--M/s. Electro House--Registration under section 26A of the Income-tax Act--Wrongly granted--Proposal under section 33B to cancel orders under section 26A--Notice regarding On a perusal of the orders under section 26A passed by the Income-tax Officer, "A" Ward, Asansol, on 5th October, 1960, and 25th February, 1961, for the assessment years 1959-60 and 1960-61 respectively in the above case and the connected records, I consider that the said orders are erroneous and prejudicial to revenue, inasmuch as registration under section 26A of the Income-tax Act, 1922, for the assessment year 1959-60 and renewal of registration under section. 26A of the said Act for the assessment year 1960-61 should not have been granted as there are prima facie reasons and grounds to hold that the partnership brought into existence by the partnership deed dated 2nd January, 1958, is not a genuine one I, therefore, propose to cancel the orders under section 26A of the Income-tax Act, 1922, for the assessment years 1959-60 and 1960-61 under powers vested in me under section 33B of the Income-tax Act, 1922, unless you show cause why the orders should not be so cancelled I am prepared to hear your objections, if any, at 11A.M. on 3rd August, 1962, at my office as noted above. Objections in writing, if any, submitted on or before the above date will also be duly considered Yours faithfully Sd./- F.H. Vallibhoy Commissioner of Income Tax West Bengal." 3. The question for consideration is whether this notice is an invalid notice and consequently the Commissioner had no jurisdiction to proceed under section 33B. The Tribunal came to the conclusion that the notice issued was not one required to be issued by the Act and hence its validity or invalidity did not affect the jurisdiction of the Commissioner. It also held that it was a valid notice. But the High Court differing from the conclusions reached by the Tribunal opined that the notice issued was not valid and therefore the Commissioner had no jurisdiction to proceed with the enquiry. In that view it thought it unnecessary to consider the remaining questionsSection 33B(1) reads"The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." 4. This section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33B and 34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decision and not before commencing the enquiry, is that he must give the assessee an opportunity of being heard and make or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very narrow. All that we have to see is whether before assuming jurisdiction the Commissioner was required to issue a notice and if he was so required what that notice should have contained ? Our answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner of Income-tax ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlier and answer that question as follows: The notice issued did not contravene section 33B and the Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those questions. 5. | 0[ds]This section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33Band34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decisionandnot before commencing the enquiry, is that he must give the assessee an opportunity of being heardandmake or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very narrowOur answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner of Income-tax ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assesseeandthe stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlierandanswer that question as follows: The notice issued did not contravene section 33Bandthe Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those questionsThis section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33Band34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decisionandnot before commencing the enquiry, is that he must give the assessee an opportunity of being heardandmake or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very. All that we have to see iswhether before assuming jurisdiction the Commissioner was required to issue a noticeandif he was so required what that notice should have contained ?Our answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner ofx ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assesseeandthe stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlierandanswer that question as follows: The notice issued did not contravene section 33Bandthe Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those | 0 | 1,560 | 1,011 | ### 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:
therefore proceeded against the assessee under section 33B of the Act. Before doing so, he issued a notice to the firm on July 18, 1962, which reads thus"From Shri F. H. Vallibhoy Commissioner of Income-tax West Bengal To M/s. Electro HouseG. T. Road Asansol Gentlemen Sub: Income-tax Assessment--1959-60 and 1960-61--M/s. Electro House--Registration under section 26A of the Income-tax Act--Wrongly granted--Proposal under section 33B to cancel orders under section 26A--Notice regarding On a perusal of the orders under section 26A passed by the Income-tax Officer, "A" Ward, Asansol, on 5th October, 1960, and 25th February, 1961, for the assessment years 1959-60 and 1960-61 respectively in the above case and the connected records, I consider that the said orders are erroneous and prejudicial to revenue, inasmuch as registration under section 26A of the Income-tax Act, 1922, for the assessment year 1959-60 and renewal of registration under section. 26A of the said Act for the assessment year 1960-61 should not have been granted as there are prima facie reasons and grounds to hold that the partnership brought into existence by the partnership deed dated 2nd January, 1958, is not a genuine one I, therefore, propose to cancel the orders under section 26A of the Income-tax Act, 1922, for the assessment years 1959-60 and 1960-61 under powers vested in me under section 33B of the Income-tax Act, 1922, unless you show cause why the orders should not be so cancelled I am prepared to hear your objections, if any, at 11A.M. on 3rd August, 1962, at my office as noted above. Objections in writing, if any, submitted on or before the above date will also be duly considered Yours faithfully Sd./- F.H. Vallibhoy Commissioner of Income Tax West Bengal." 3. The question for consideration is whether this notice is an invalid notice and consequently the Commissioner had no jurisdiction to proceed under section 33B. The Tribunal came to the conclusion that the notice issued was not one required to be issued by the Act and hence its validity or invalidity did not affect the jurisdiction of the Commissioner. It also held that it was a valid notice. But the High Court differing from the conclusions reached by the Tribunal opined that the notice issued was not valid and therefore the Commissioner had no jurisdiction to proceed with the enquiry. In that view it thought it unnecessary to consider the remaining questionsSection 33B(1) reads"The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." 4. This section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33B and 34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decision and not before commencing the enquiry, is that he must give the assessee an opportunity of being heard and make or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very narrow. All that we have to see is whether before assuming jurisdiction the Commissioner was required to issue a notice and if he was so required what that notice should have contained ? Our answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner of Income-tax ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlier and answer that question as follows: The notice issued did not contravene section 33B and the Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those questions. 5.
### Response:
0
### Explanation:
This section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33Band34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decisionandnot before commencing the enquiry, is that he must give the assessee an opportunity of being heardandmake or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very narrowOur answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner of Income-tax ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assesseeandthe stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlierandanswer that question as follows: The notice issued did not contravene section 33Bandthe Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those questionsThis section unlike section 34 does not prescribe any notice to be given. It only requires the Commissioner to give an opportunity to the assessee of being heard. The section does not speak of any notice. It is unfortunate that the High Court failed to notice the difference in language between sections 33Band34. For the assumption of jurisdiction to proceed under section 34 the notice as prescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All, that he is, required to do before reaching his decisionandnot before commencing the enquiry, is that he must give the assessee an opportunity of being heardandmake or cause to make such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner. At present we are not called upon to consider whether the order made by the Commissioner is vitiated because of the contravention of any of the principles of natural justice. The scope of these appeals is very. All that we have to see iswhether before assuming jurisdiction the Commissioner was required to issue a noticeandif he was so required what that notice should have contained ?Our answer to that question has already been made clear. In our judgment no notice was required to be issued by the Commissioner before assuming jurisdiction to proceed under section 33B. Therefore the question what that notice should contain does not arise for consideration. It is not necessary nor proper for us in this case to consider as to the nature of the enquiry to be held under section 33B. Therefore, we refrain from spelling out what principles of natural justice should be observed in an enquiry under section 33B. This court in Gita Devi Aggarwal v. Commissioner ofx ruled that section 33 B does not in express terms require a notice to be served on the assessee as in the case of section 34. Section 33B merely requires that an opportunity of being heard should be given to the assesseeandthe stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33BFor the reasons mentioned above, we allow Civil Appeals Nos. 1168 to 1171 of 1971, discharge the answer given by the High Court to the question set out earlierandanswer that question as follows: The notice issued did not contravene section 33Bandthe Commissioner validly exercised his jurisdiction under section 33B. But as the High Court has not considered the other questions referred to it, these cases will now go back to the High Court for considering those
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FOOD CORPORATION OF INDIA Vs. PRATAP KUNDU | 18.01.2000 to 17.01.2002 and it was extended till 13.07.2004. It is also required to be noted that at the time when the contract between the FCI and the contractor was entered into, there was already a dispute pending with respect to the rate of wages to be paid to the casual labourers. Therefore, so far as Item No.24 for supply of casual labourers is concerned, it was provided that relevant rate of wages is to be paid and such rate shall abide by the decision of pending SLP as filed by the FCI in the Honble Supreme Court. It is also required to be noted that in Appendix VIII with respect to other items, namely item nos. 1 to 23 and 25, specific rates were mentioned, however, with respect to Item No. 24 – supply of casual labourers, it was blank and with respect to Item No. 24, it was specifically provided that the wages to be paid to the casual labourers shall abide by the decision of the pending SLP. The contractor paid the wages to the casual labourers at the rate of Rs.106.38 per day. The first SLP came to be dismissed by this Court on March 29, 2004. However, still the dispute continued. Contempt proceedings were initiated which ultimately reached this Court by way of Civil Appeal Nos. 9472-9473 of 2003. Civil Appeal Nos. 9472-9473 of 2003 came to be finally disposed of by this Court on 14.01.2010 and it was directed that the FCI shall fix the pay of the casual labourers as also of the deceased workers, who were petitioners in the first or second case filed in the High Court, in Scale-II, as revised from time to time (as on 1.1.1997, the scale was Rs.4320-7330). This Court also directed that all the payments shall be made to the workers and legal representatives of the deceased workers directly without involving any contractor and other agency. Therefore, the dispute with respect to wages came to be finally settled/disposed of by this Court by its order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003. Therefore, the casual labourers were entitled to the wages as per the final order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473 of 2003, and as per the terms and conditions of the contract, more particularly with respect to Item No. 24 the wages were required to be paid as per the determination in the pending SLP, i.e., Civil Appeal Nos. 9472- 9473 of 2003. 6.1 At this stage, it is also required to be noted that even subsequently the workers filed contempt petition before this Court which came to be dismissed as this Court was of the opinion that order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003 has been complied with. That thereafter the contractor made the claim claiming 471% ASOR with respect to supply of casual labourers at 471% ASOR as per the claim the contractor claimed between Rs.607.43 to Rs.1225.19 per day. The FCI determined and paid the wages as per the direction issued by this Court in the order dated 14.01.2010 ranging between Rs. 308.85 to 391.35 per day. The statement with respect to claim made by the contractor and the amount paid to the casual labourers as determined and paid by the FCI is as under: table The aforesaid claim has been rejected by the Chairman of the FCI and according to us the same was rightly rejected by the Chairman as the wages to the casual labourers were required to be determined and paid as per the order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. Therefore, as such, the Division Bench of the High Court has rightly observed and held that after this Courts judgment and order dated 14.01.2010, the rate of wages payable to the labourers under the subject contract would be according to the rate specified in that judgment and not on 471% ASOR basis. We are in complete agreement with the said finding recorded by the Division Bench. Therefore, it is observed and held that the contractor shall not be entitled to the wages to be paid to the casual labourers on 471% ASOR basis and the wages to be paid to the labourers would be at the rate specified in the order dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. However, the Division Bench of the High Court was of the opinion that there is no clarity how judgment and order dated 14.01.2010 has been applied by the FCI to calculate the wages of the casual labourers, therefore, the Division Bench of the High Court has referred the matter back to the Chairman of the FCI to consider how the differential rate of casual labourers between Rs. 308.85/- per day and Rs.353.19/- per day between January and March, 2000 and October to December, 2001 respectively and the differential rate for the subsequent period up to July, 2004 has been determined and the Chairman is directed to determine the exact amount of wages that was payable, applying the judgment and order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472- 9473/2003. 6.2 So far as the direction issued by the Division Bench of the High Court directing the Chairman to determine the profit earned by the contractor out of his contract is concerned, the same is not sustainable at all. The Division Bench of the High Court has observed that the judgment and order of this Court dated 14.01.2010 has left open other issues to be determined. We do not find anything in the order dated 14.01.2010. On bare reading of the order dated 14.01.2010 there does not appear to be left open other issues to be determined, as observed by the High Court in the impugned judgment and order. Under the circumstances, that part of the direction issued by the Division Bench directing the Chairman to determine the profit earned by the contractor deserves to be quashed and set aside. | 1[ds]It is required to be noted that the original contract period was from 18.01.2000 to 17.01.2002 and it was extended till 13.07.2004. It is also required to be noted that at the time when the contract between the FCI and the contractor was entered into, there was already a dispute pending with respect to the rate of wages to be paid to the casual labourers. Therefore, so far as Item No.24 for supply of casual labourers is concerned, it was provided that relevant rate of wages is to be paid and such rate shall abide by the decision of pending SLP as filed by the FCI in the Honble Supreme Court. It is also required to be noted that in Appendix VIII with respect to other items, namely item nos. 1 to 23 and 25, specific rates were mentioned, however, with respect to Item No. 24 – supply of casual labourers, it was blank and with respect to Item No. 24, it was specifically provided that the wages to be paid to the casual labourers shall abide by the decision of the pending SLP. The contractor paid the wages to the casual labourers at the rate of Rs.106.38 per day. The first SLP came to be dismissed by this Court on March 29, 2004. However, still the dispute continued. Contempt proceedings were initiated which ultimately reached this Court by way of Civil Appeal Nos. 9472-9473 of 2003. Civil Appeal Nos. 9472-9473 of 2003 came to be finally disposed of by this Court on 14.01.2010 and it was directed that the FCI shall fix the pay of the casual labourers as also of the deceased workers, who were petitioners in the first or second case filed in the High Court, in Scale-II, as revised from time to time (as on 1.1.1997, the scale was Rs.4320-7330). This Court also directed that all the payments shall be made to the workers and legal representatives of the deceased workers directly without involving any contractor and other agency. Therefore, the dispute with respect to wages came to be finally settled/disposed of by this Court by its order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003. Therefore, the casual labourers were entitled to the wages as per the final order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473 of 2003, and as per the terms and conditions of the contract, more particularly with respect to Item No. 24 the wages were required to be paid as per the determination in the pending SLP, i.e., Civil Appeal Nos. 9472- 9473 of 20036.1 At this stage, it is also required to be noted that even subsequently the workers filed contempt petition before this Court which came to be dismissed as this Court was of the opinion that order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003 has been complied with. That thereafter the contractor made the claim claiming 471% ASOR with respect to supply of casual labourers at 471% ASOR as per the claim the contractor claimed between Rs.607.43 to Rs.1225.19 per day. The FCI determined and paid the wages as per the direction issued by this Court in the order dated 14.01.2010 ranging between Rs. 308.85 to 391.35 per day. The statement with respect to claim made by the contractor and the amount paid to the casual labourers as determined and paid by the FCI is as under:The aforesaid claim has been rejected by the Chairman of the FCI and according to us the same was rightly rejected by the Chairman as the wages to the casual labourers were required to be determined and paid as per the order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. Therefore, as such, the Division Bench of the High Court has rightly observed and held that after this Courts judgment and order dated 14.01.2010, the rate of wages payable to the labourers under the subject contract would be according to the rate specified in that judgment and not on 471% ASOR basis. We are in complete agreement with the said finding recorded by the Division Bench. Therefore, it is observed and held that the contractor shall not be entitled to the wages to be paid to the casual labourers on 471% ASOR basis and the wages to be paid to the labourers would be at the rate specified in the order dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. However, the Division Bench of the High Court was of the opinion that there is no clarity how judgment and order dated 14.01.2010 has been applied by the FCI to calculate the wages of the casual labourers, therefore, the Division Bench of the High Court has referred the matter back to the Chairman of the FCI to consider how the differential rate of casual labourers between Rs. 308.85/- per day and Rs.353.19/- per day between January and March, 2000 and October to December, 2001 respectively and the differential rate for the subsequent period up to July, 2004 has been determined and the Chairman is directed to determine the exact amount of wages that was payable, applying the judgment and order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472- 9473/20036.2 So far as the direction issued by the Division Bench of the High Court directing the Chairman to determine the profit earned by the contractor out of his contract is concerned, the same is not sustainable at all. The Division Bench of the High Court has observed that the judgment and order of this Court dated 14.01.2010 has left open other issues to be determined. We do not find anything in the order dated 14.01.2010. On bare reading of the order dated 14.01.2010 there does not appear to be left open other issues to be determined, as observed by the High Court in the impugned judgment and order. Under the circumstances, that part of the direction issued by the Division Bench directing the Chairman to determine the profit earned by the contractor deserves to be quashed and set aside. | 1 | 3,849 | 1,095 | ### 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:
18.01.2000 to 17.01.2002 and it was extended till 13.07.2004. It is also required to be noted that at the time when the contract between the FCI and the contractor was entered into, there was already a dispute pending with respect to the rate of wages to be paid to the casual labourers. Therefore, so far as Item No.24 for supply of casual labourers is concerned, it was provided that relevant rate of wages is to be paid and such rate shall abide by the decision of pending SLP as filed by the FCI in the Honble Supreme Court. It is also required to be noted that in Appendix VIII with respect to other items, namely item nos. 1 to 23 and 25, specific rates were mentioned, however, with respect to Item No. 24 – supply of casual labourers, it was blank and with respect to Item No. 24, it was specifically provided that the wages to be paid to the casual labourers shall abide by the decision of the pending SLP. The contractor paid the wages to the casual labourers at the rate of Rs.106.38 per day. The first SLP came to be dismissed by this Court on March 29, 2004. However, still the dispute continued. Contempt proceedings were initiated which ultimately reached this Court by way of Civil Appeal Nos. 9472-9473 of 2003. Civil Appeal Nos. 9472-9473 of 2003 came to be finally disposed of by this Court on 14.01.2010 and it was directed that the FCI shall fix the pay of the casual labourers as also of the deceased workers, who were petitioners in the first or second case filed in the High Court, in Scale-II, as revised from time to time (as on 1.1.1997, the scale was Rs.4320-7330). This Court also directed that all the payments shall be made to the workers and legal representatives of the deceased workers directly without involving any contractor and other agency. Therefore, the dispute with respect to wages came to be finally settled/disposed of by this Court by its order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003. Therefore, the casual labourers were entitled to the wages as per the final order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473 of 2003, and as per the terms and conditions of the contract, more particularly with respect to Item No. 24 the wages were required to be paid as per the determination in the pending SLP, i.e., Civil Appeal Nos. 9472- 9473 of 2003. 6.1 At this stage, it is also required to be noted that even subsequently the workers filed contempt petition before this Court which came to be dismissed as this Court was of the opinion that order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003 has been complied with. That thereafter the contractor made the claim claiming 471% ASOR with respect to supply of casual labourers at 471% ASOR as per the claim the contractor claimed between Rs.607.43 to Rs.1225.19 per day. The FCI determined and paid the wages as per the direction issued by this Court in the order dated 14.01.2010 ranging between Rs. 308.85 to 391.35 per day. The statement with respect to claim made by the contractor and the amount paid to the casual labourers as determined and paid by the FCI is as under: table The aforesaid claim has been rejected by the Chairman of the FCI and according to us the same was rightly rejected by the Chairman as the wages to the casual labourers were required to be determined and paid as per the order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. Therefore, as such, the Division Bench of the High Court has rightly observed and held that after this Courts judgment and order dated 14.01.2010, the rate of wages payable to the labourers under the subject contract would be according to the rate specified in that judgment and not on 471% ASOR basis. We are in complete agreement with the said finding recorded by the Division Bench. Therefore, it is observed and held that the contractor shall not be entitled to the wages to be paid to the casual labourers on 471% ASOR basis and the wages to be paid to the labourers would be at the rate specified in the order dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. However, the Division Bench of the High Court was of the opinion that there is no clarity how judgment and order dated 14.01.2010 has been applied by the FCI to calculate the wages of the casual labourers, therefore, the Division Bench of the High Court has referred the matter back to the Chairman of the FCI to consider how the differential rate of casual labourers between Rs. 308.85/- per day and Rs.353.19/- per day between January and March, 2000 and October to December, 2001 respectively and the differential rate for the subsequent period up to July, 2004 has been determined and the Chairman is directed to determine the exact amount of wages that was payable, applying the judgment and order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472- 9473/2003. 6.2 So far as the direction issued by the Division Bench of the High Court directing the Chairman to determine the profit earned by the contractor out of his contract is concerned, the same is not sustainable at all. The Division Bench of the High Court has observed that the judgment and order of this Court dated 14.01.2010 has left open other issues to be determined. We do not find anything in the order dated 14.01.2010. On bare reading of the order dated 14.01.2010 there does not appear to be left open other issues to be determined, as observed by the High Court in the impugned judgment and order. Under the circumstances, that part of the direction issued by the Division Bench directing the Chairman to determine the profit earned by the contractor deserves to be quashed and set aside.
### Response:
1
### Explanation:
contract period was from 18.01.2000 to 17.01.2002 and it was extended till 13.07.2004. It is also required to be noted that at the time when the contract between the FCI and the contractor was entered into, there was already a dispute pending with respect to the rate of wages to be paid to the casual labourers. Therefore, so far as Item No.24 for supply of casual labourers is concerned, it was provided that relevant rate of wages is to be paid and such rate shall abide by the decision of pending SLP as filed by the FCI in the Honble Supreme Court. It is also required to be noted that in Appendix VIII with respect to other items, namely item nos. 1 to 23 and 25, specific rates were mentioned, however, with respect to Item No. 24 – supply of casual labourers, it was blank and with respect to Item No. 24, it was specifically provided that the wages to be paid to the casual labourers shall abide by the decision of the pending SLP. The contractor paid the wages to the casual labourers at the rate of Rs.106.38 per day. The first SLP came to be dismissed by this Court on March 29, 2004. However, still the dispute continued. Contempt proceedings were initiated which ultimately reached this Court by way of Civil Appeal Nos. 9472-9473 of 2003. Civil Appeal Nos. 9472-9473 of 2003 came to be finally disposed of by this Court on 14.01.2010 and it was directed that the FCI shall fix the pay of the casual labourers as also of the deceased workers, who were petitioners in the first or second case filed in the High Court, in Scale-II, as revised from time to time (as on 1.1.1997, the scale was Rs.4320-7330). This Court also directed that all the payments shall be made to the workers and legal representatives of the deceased workers directly without involving any contractor and other agency. Therefore, the dispute with respect to wages came to be finally settled/disposed of by this Court by its order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003. Therefore, the casual labourers were entitled to the wages as per the final order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473 of 2003, and as per the terms and conditions of the contract, more particularly with respect to Item No. 24 the wages were required to be paid as per the determination in the pending SLP, i.e., Civil Appeal Nos. 9472- 9473 of 20036.1 At this stage, it is also required to be noted that even subsequently the workers filed contempt petition before this Court which came to be dismissed as this Court was of the opinion that order dated 14.01.2010 passed in Civil Appeal Nos. 9472-9473 of 2003 has been complied with. That thereafter the contractor made the claim claiming 471% ASOR with respect to supply of casual labourers at 471% ASOR as per the claim the contractor claimed between Rs.607.43 to Rs.1225.19 per day. The FCI determined and paid the wages as per the direction issued by this Court in the order dated 14.01.2010 ranging between Rs. 308.85 to 391.35 per day. The statement with respect to claim made by the contractor and the amount paid to the casual labourers as determined and paid by the FCI is as under:The aforesaid claim has been rejected by the Chairman of the FCI and according to us the same was rightly rejected by the Chairman as the wages to the casual labourers were required to be determined and paid as per the order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. Therefore, as such, the Division Bench of the High Court has rightly observed and held that after this Courts judgment and order dated 14.01.2010, the rate of wages payable to the labourers under the subject contract would be according to the rate specified in that judgment and not on 471% ASOR basis. We are in complete agreement with the said finding recorded by the Division Bench. Therefore, it is observed and held that the contractor shall not be entitled to the wages to be paid to the casual labourers on 471% ASOR basis and the wages to be paid to the labourers would be at the rate specified in the order dated 14.01.2010 in Civil Appeal Nos. 9472-9473/2003. However, the Division Bench of the High Court was of the opinion that there is no clarity how judgment and order dated 14.01.2010 has been applied by the FCI to calculate the wages of the casual labourers, therefore, the Division Bench of the High Court has referred the matter back to the Chairman of the FCI to consider how the differential rate of casual labourers between Rs. 308.85/- per day and Rs.353.19/- per day between January and March, 2000 and October to December, 2001 respectively and the differential rate for the subsequent period up to July, 2004 has been determined and the Chairman is directed to determine the exact amount of wages that was payable, applying the judgment and order passed by this Court dated 14.01.2010 in Civil Appeal Nos. 9472- 9473/20036.2 So far as the direction issued by the Division Bench of the High Court directing the Chairman to determine the profit earned by the contractor out of his contract is concerned, the same is not sustainable at all. The Division Bench of the High Court has observed that the judgment and order of this Court dated 14.01.2010 has left open other issues to be determined. We do not find anything in the order dated 14.01.2010. On bare reading of the order dated 14.01.2010 there does not appear to be left open other issues to be determined, as observed by the High Court in the impugned judgment and order. Under the circumstances, that part of the direction issued by the Division Bench directing the Chairman to determine the profit earned by the contractor deserves to be quashed and set aside.
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BIRLA INSTITUTE OF TECHNOLOGY Vs. THE STATE OF JHARKHAND | Abhay Manohar Sapre, J. 1. On 07.01.2019, this Court placing reliance on the decision of this Court in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer and Others (2004) 1 SCC 755 , which was brought to the Court’s notice by the learned counsel appearing for the appellant, allowed the appeal and set aside the order of the High Court.2. However, after the pronouncement of the order in this appeal, it came to the notice of this Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to our notice while passing the order on 07.01.2019 in this appeal.3. This Court, therefore, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order: "On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein.Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997.In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997.Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal.The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench.The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr.Justice Abhay Manohar Sapre and Hon’ble Ms.Justice Indu Malhotra as early as possible.” 4. It is in the light of the aforementioned order, the matter was listed before this Bench for passing the appropriate order in the disposed of appeal. 5. We heard the learned counsel for the parties. Both the parties have also filed their written submissions. 6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in appellant’s favour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant. | 0[ds]6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition ofas defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered infavour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.23. As mentioned above, the issue in question was subject matter of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association (supra). This Court had examined the question in the light of the definition of the worddefined in Section 2(e) of the Act as it stood then. The definition reads asmeans any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi¬skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.31. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Pvt. Primary Teachers Association(supra) is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of respondent No.4 (teacher) in any manner in claiming gratuity amount from the appellant(employer) under the Act.34. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now. | 0 | 837 | 738 | ### 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:
Abhay Manohar Sapre, J. 1. On 07.01.2019, this Court placing reliance on the decision of this Court in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer and Others (2004) 1 SCC 755 , which was brought to the Court’s notice by the learned counsel appearing for the appellant, allowed the appeal and set aside the order of the High Court.2. However, after the pronouncement of the order in this appeal, it came to the notice of this Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to our notice while passing the order on 07.01.2019 in this appeal.3. This Court, therefore, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order: "On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein.Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997.In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997.Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal.The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench.The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr.Justice Abhay Manohar Sapre and Hon’ble Ms.Justice Indu Malhotra as early as possible.” 4. It is in the light of the aforementioned order, the matter was listed before this Bench for passing the appropriate order in the disposed of appeal. 5. We heard the learned counsel for the parties. Both the parties have also filed their written submissions. 6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in appellant’s favour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.
### Response:
0
### Explanation:
6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition ofas defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered infavour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.23. As mentioned above, the issue in question was subject matter of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association (supra). This Court had examined the question in the light of the definition of the worddefined in Section 2(e) of the Act as it stood then. The definition reads asmeans any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi¬skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.31. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Pvt. Primary Teachers Association(supra) is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of respondent No.4 (teacher) in any manner in claiming gratuity amount from the appellant(employer) under the Act.34. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now.
|
Rajendra Construction Company Vs. Maharashtra Housing& Area Dev.Auth | had expressed the legislative judgment that the award must state reasons upon which it is passed unless the parties have agreed otherwise or the award is on agreed terms.24. The present awards are not under the new Act but under the old Act. It is, therefore, obvious that they could not have been set aside by the High Court on the ground that they were not supported by reasons and were not speaking awards. 25. The learned counsel for the respondent invited our attention to a decision of this Court in State of Punjab vs. Bhag Singh, (2004) 1 SCC 547 and contended that this Court has held that reasons must be recorded in support of the order. That was a case wherein the High Court dismissed an appeal against an order of acquittal without recording reasons. The State approached this Court. Reversing the order passed by the High Court, this Court held that in an appeal against acquittal recorded by the Sessions Court, the High Court must record reasons as the High Court was obliged to undertake the exercise by application of mind and coming to the conclusion that an order of acquittal recorded by the trial court was or was not in accordance with law. The ratio laid down in Bhag Singh, in our opinion, does not apply to the facts of the present case. 26. The counsel relied upon the observations of Lord Denning, M.R. in Breen v. Amalagamated Engineering Union, (1971) 1 All ER 1148. There His Lordship observed; "The giving of reasons is one of the fundamentals of good administration". Reference was also made to Alexander Machinery (Dedley) Ltd. v. Crabtree, 1974 ICR 120, wherein it was indicated that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision maker to the controversy in question and the decision or conclusion arrived at by him. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can by its silence render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. 27. As already observed by us, all these principles apply to Administrative Law and in the public law field. They would not get attracted in the field of private law. The court, in such matters, does not exercise appellate jurisdiction and cannot substitute its decision for the decision of the Arbitrator. Those principles, therefore, have no place when one is considering the legality of an award made by an Arbitrator with the consent of parties, which is otherwise legal and valid. 28. The learned counsel also placed reliance on a decision of this Court in Gora Lal v. Union of India, (2003) 12 SCC 459. The Court in that case held that when the Arbitrator was to give his findings, it was obligatory on him to record reasons. In Gora Mal, the relevant clause of arbitration was as under; "The arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of case and pleadings in defence.29. The arbitrator may, from time to time, with the consent of the parties, enlarge the time up to but not exceeding one year from the date of his entering on the reference, for making and publishing the award. 30. The arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with the sums awarded, separately on each individual item of the dispute." 31. Observing that the word findings denotes reasons in support of the conclusion on each item of dispute, the Court held that the Arbitrator was required to record reasons in support of his findings. The Court, however, added; "We make it clear that this order is confined to the facts of this case and our interpretation is confined to clause 70 of the arbitration agreement in this case". Gora Lal thus was decided in the fact-situation before the Court and the relevant clause in the agreement and the ratio of that case cannot make the awards in the present case illegal or unlawful in absence of a similar clause. 32. For the foregoing reasons, the awards passed by the sole Arbitrator cannot be held illegal or unlawful. In making such awards the rule of the court, the Court of Civil Judge, (Senior Division), Aurangabad had not committed any illegality which vitiated the awards and the High Court could not have set aside them.33. The question then remains as to interest. The appellant had claimed interest in the suits. The Arbitrator awarded interest at the rate of 18 per cent per annum on the principal amount from the date of the suits to the date of awards and also from the date of the awards to the date of payment or up to the date of decrees, whichever is earlier. This Court has dealt with the power of Arbitrator to award interest for (i) pre-reference period [Executive Engineer, Dhenkanal Minor Irrigation Division & Others v. N.C. Budhraj (Deceased) by LRs & Others (2001) 2 SCC 721 ]; (ii) pendente lite [Secretary, Irrigation Department, Government of Orissa & Others v. G.C. Roy (1992) 1 SCC 508 ]; and (iii) post-award period [Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir, (1992) 4 SCC 217 ]. In Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 : JT (2005) 4 SC 73 , one of us (C.K. Thakker, J.) had an occasion to consider the relevant decisions on the power of Arbitrator to award interest at all the three stages. It was held that the arbitrator had power to award interest. | 1[ds]21. This Court noted that a consistent view has been taken by all courts that an award was not liable to be set aside merely because reasons were not given except where the arbitration agreement or the deed of submission or an order made by the court under Sections 20, 21 or 34 of the Act or the statute governing the arbitration required the Arbitrator or Umpire to give reasons for the award.22. In our opinion, the ratio in Chokhamal applies to the case on hand. The law laid down in that case has been reiterated by this Court in many cases.24. The present awards are not under the new Act but under the old Act. It is, therefore, obvious that they could not have been set aside by the High Court on the ground that they were not supported by reasons and were not speaking awards.As already observed by us, all these principles apply to Administrative Law and in the public law field. They would not get attracted in the field of private law. The court, in such matters, does not exercise appellate jurisdiction and cannot substitute its decision for the decision of the Arbitrator. Those principles, therefore, have no place when one is considering the legality of an award made by an Arbitrator with the consent of parties, which is otherwise legal and valid.For the foregoing reasons, the awards passed by the sole Arbitrator cannot be held illegal or unlawful. In making such awards the rule of the court, the Court of Civil Judge, (Senior Division), Aurangabad had not committed any illegality which vitiated the awards and the High Court could not have set aside them.33. The question then remains as to interest. The appellant had claimed interest in the suits. The Arbitrator awarded interest at the rate of 18 per cent per annum on the principal amount from the date of the suits to the date of awards and also from the date of the awards to the date of payment or up to the date of decrees, whichever is earlier. This Court has dealt with the power of Arbitrator to award interest for (i) pre-reference period [Executive Engineer, Dhenkanal Minor Irrigation Division & Others v. N.C. Budhraj (Deceased) by LRs & Others (2001) 2 SCC 721 ]; (ii) pendente lite [Secretary, Irrigation Department, Government of Orissa & Others v. G.C. Roy (1992) 1 SCC 508 ]; and (iii) post-award period [Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir, (1992) 4 SCC 217 ]. In Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 : JT (2005) 4 SC 73 , one of us (C.K. Thakker, J.) had an occasion to consider the relevant decisions on the power of Arbitrator to award interest at all the three stages. It was held that the arbitrator had power to award interest. | 1 | 5,238 | 547 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
had expressed the legislative judgment that the award must state reasons upon which it is passed unless the parties have agreed otherwise or the award is on agreed terms.24. The present awards are not under the new Act but under the old Act. It is, therefore, obvious that they could not have been set aside by the High Court on the ground that they were not supported by reasons and were not speaking awards. 25. The learned counsel for the respondent invited our attention to a decision of this Court in State of Punjab vs. Bhag Singh, (2004) 1 SCC 547 and contended that this Court has held that reasons must be recorded in support of the order. That was a case wherein the High Court dismissed an appeal against an order of acquittal without recording reasons. The State approached this Court. Reversing the order passed by the High Court, this Court held that in an appeal against acquittal recorded by the Sessions Court, the High Court must record reasons as the High Court was obliged to undertake the exercise by application of mind and coming to the conclusion that an order of acquittal recorded by the trial court was or was not in accordance with law. The ratio laid down in Bhag Singh, in our opinion, does not apply to the facts of the present case. 26. The counsel relied upon the observations of Lord Denning, M.R. in Breen v. Amalagamated Engineering Union, (1971) 1 All ER 1148. There His Lordship observed; "The giving of reasons is one of the fundamentals of good administration". Reference was also made to Alexander Machinery (Dedley) Ltd. v. Crabtree, 1974 ICR 120, wherein it was indicated that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision maker to the controversy in question and the decision or conclusion arrived at by him. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can by its silence render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. 27. As already observed by us, all these principles apply to Administrative Law and in the public law field. They would not get attracted in the field of private law. The court, in such matters, does not exercise appellate jurisdiction and cannot substitute its decision for the decision of the Arbitrator. Those principles, therefore, have no place when one is considering the legality of an award made by an Arbitrator with the consent of parties, which is otherwise legal and valid. 28. The learned counsel also placed reliance on a decision of this Court in Gora Lal v. Union of India, (2003) 12 SCC 459. The Court in that case held that when the Arbitrator was to give his findings, it was obligatory on him to record reasons. In Gora Mal, the relevant clause of arbitration was as under; "The arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of case and pleadings in defence.29. The arbitrator may, from time to time, with the consent of the parties, enlarge the time up to but not exceeding one year from the date of his entering on the reference, for making and publishing the award. 30. The arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with the sums awarded, separately on each individual item of the dispute." 31. Observing that the word findings denotes reasons in support of the conclusion on each item of dispute, the Court held that the Arbitrator was required to record reasons in support of his findings. The Court, however, added; "We make it clear that this order is confined to the facts of this case and our interpretation is confined to clause 70 of the arbitration agreement in this case". Gora Lal thus was decided in the fact-situation before the Court and the relevant clause in the agreement and the ratio of that case cannot make the awards in the present case illegal or unlawful in absence of a similar clause. 32. For the foregoing reasons, the awards passed by the sole Arbitrator cannot be held illegal or unlawful. In making such awards the rule of the court, the Court of Civil Judge, (Senior Division), Aurangabad had not committed any illegality which vitiated the awards and the High Court could not have set aside them.33. The question then remains as to interest. The appellant had claimed interest in the suits. The Arbitrator awarded interest at the rate of 18 per cent per annum on the principal amount from the date of the suits to the date of awards and also from the date of the awards to the date of payment or up to the date of decrees, whichever is earlier. This Court has dealt with the power of Arbitrator to award interest for (i) pre-reference period [Executive Engineer, Dhenkanal Minor Irrigation Division & Others v. N.C. Budhraj (Deceased) by LRs & Others (2001) 2 SCC 721 ]; (ii) pendente lite [Secretary, Irrigation Department, Government of Orissa & Others v. G.C. Roy (1992) 1 SCC 508 ]; and (iii) post-award period [Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir, (1992) 4 SCC 217 ]. In Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 : JT (2005) 4 SC 73 , one of us (C.K. Thakker, J.) had an occasion to consider the relevant decisions on the power of Arbitrator to award interest at all the three stages. It was held that the arbitrator had power to award interest.
### Response:
1
### Explanation:
21. This Court noted that a consistent view has been taken by all courts that an award was not liable to be set aside merely because reasons were not given except where the arbitration agreement or the deed of submission or an order made by the court under Sections 20, 21 or 34 of the Act or the statute governing the arbitration required the Arbitrator or Umpire to give reasons for the award.22. In our opinion, the ratio in Chokhamal applies to the case on hand. The law laid down in that case has been reiterated by this Court in many cases.24. The present awards are not under the new Act but under the old Act. It is, therefore, obvious that they could not have been set aside by the High Court on the ground that they were not supported by reasons and were not speaking awards.As already observed by us, all these principles apply to Administrative Law and in the public law field. They would not get attracted in the field of private law. The court, in such matters, does not exercise appellate jurisdiction and cannot substitute its decision for the decision of the Arbitrator. Those principles, therefore, have no place when one is considering the legality of an award made by an Arbitrator with the consent of parties, which is otherwise legal and valid.For the foregoing reasons, the awards passed by the sole Arbitrator cannot be held illegal or unlawful. In making such awards the rule of the court, the Court of Civil Judge, (Senior Division), Aurangabad had not committed any illegality which vitiated the awards and the High Court could not have set aside them.33. The question then remains as to interest. The appellant had claimed interest in the suits. The Arbitrator awarded interest at the rate of 18 per cent per annum on the principal amount from the date of the suits to the date of awards and also from the date of the awards to the date of payment or up to the date of decrees, whichever is earlier. This Court has dealt with the power of Arbitrator to award interest for (i) pre-reference period [Executive Engineer, Dhenkanal Minor Irrigation Division & Others v. N.C. Budhraj (Deceased) by LRs & Others (2001) 2 SCC 721 ]; (ii) pendente lite [Secretary, Irrigation Department, Government of Orissa & Others v. G.C. Roy (1992) 1 SCC 508 ]; and (iii) post-award period [Hindustan Construction Co. Ltd. v. State of Jammu & Kashmir, (1992) 4 SCC 217 ]. In Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 : JT (2005) 4 SC 73 , one of us (C.K. Thakker, J.) had an occasion to consider the relevant decisions on the power of Arbitrator to award interest at all the three stages. It was held that the arbitrator had power to award interest.
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Saraswati Singh and Ors Vs. Shailesh Singh and Ors | Dr. D.Y. Chandrachud, J.1. The main writ petition was dismissed by a judgment delivered by this Court on 6 March 2018. In the present application, the following directions have been sought:I. Direct the Registry of this Honble Court to return the sum of Rs. 10 lakhs lying deposited before the Honble Court to the Petitioners; and/orII. Direct the Respondents to refund the sum of Rs. 25 lakhs withdrawn by them out of the sum of Rs. 35 lakhs deposited by the Petitioners before this Honble Court to the Petitioners; and/orIII. Direct return of the title deeds deposited by the Petitioners before this Honble Court to the Petitioners..During the pendency of the proceedings, an interim order dated 20 February 2017 was passed in the following terms:Let the matter be listed on 10.4.2017.In the meantime, the Petitioners shall deposit a sum of Rs. 50,00,000 (Rupees fifty lac only) before the Registry of this Court. 50% of the said amount shall be paid to the 1st Respondent without furnishing any security and the balance amount shall be kept in an interest bearing short term fixed deposit in the UCO Bank, Supreme Court Compound, New Delhi.Subsequently, by an order dated 10 April 2017, the earlier order was modified in the following terms:Regard being had to the submissions advanced at the Bar, we are only inclined to modify the aforesaid order to the extent that the Petitioner shall deposit a sum of Rs. 35,00,000 (Rupees thirty five lakhs) by 17 April 2017. The title deed as prayed for be filed on or before 29 April 2017. The Respondents are permitted to withdraw Rs. 25,00,000 (Rupees twenty five lakhs) without furnishing any security.2. On 18 April 2017 an extension of time of three days was granted to deposit the sum of Rs. 25,00,000 and for the balance until May 10, 2017. The Respondents were granted liberty to withdraw an amount of Rs. 25 lakhs as indicated in the earlier order dated 10 April 2017.3. During the course of the hearing, parties had agreed to pursue the possibility of a settlement through mediation which was recorded in the order of this Court dated 4 May 2017. The mediation failed.4. On 30 October 2017 this Court directed that the fixed deposit receipt be renewed for a period of six months.5. Pursuant to the above interim directions, the Petitioners deposited a sum of Rs. 35 lakhs. Out of the said amount, a sum of Rs. 25 lakhs was withdrawn by the Respondents. A balance of Rs. 10 lakhs is lying in deposit with the Registry which was invested in a fixed deposit. The aforesaid amounts were directed to be deposited by this Court in order to test the bona fides of the Petitioners. | 0[ds]5. Pursuant to the above interim directions, the Petitioners deposited a sum of Rs. 35 lakhs. Out of the said amount, a sum of Rs. 25 lakhs was withdrawn by the Respondents. A balance of Rs. 10 lakhs is lying in deposit with the Registry which was invested in a fixed deposit. The aforesaid amounts were directed to be deposited by this Court in order to test the bona fides of the Petitioners. | 0 | 514 | 87 | ### 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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Dr. D.Y. Chandrachud, J.1. The main writ petition was dismissed by a judgment delivered by this Court on 6 March 2018. In the present application, the following directions have been sought:I. Direct the Registry of this Honble Court to return the sum of Rs. 10 lakhs lying deposited before the Honble Court to the Petitioners; and/orII. Direct the Respondents to refund the sum of Rs. 25 lakhs withdrawn by them out of the sum of Rs. 35 lakhs deposited by the Petitioners before this Honble Court to the Petitioners; and/orIII. Direct return of the title deeds deposited by the Petitioners before this Honble Court to the Petitioners..During the pendency of the proceedings, an interim order dated 20 February 2017 was passed in the following terms:Let the matter be listed on 10.4.2017.In the meantime, the Petitioners shall deposit a sum of Rs. 50,00,000 (Rupees fifty lac only) before the Registry of this Court. 50% of the said amount shall be paid to the 1st Respondent without furnishing any security and the balance amount shall be kept in an interest bearing short term fixed deposit in the UCO Bank, Supreme Court Compound, New Delhi.Subsequently, by an order dated 10 April 2017, the earlier order was modified in the following terms:Regard being had to the submissions advanced at the Bar, we are only inclined to modify the aforesaid order to the extent that the Petitioner shall deposit a sum of Rs. 35,00,000 (Rupees thirty five lakhs) by 17 April 2017. The title deed as prayed for be filed on or before 29 April 2017. The Respondents are permitted to withdraw Rs. 25,00,000 (Rupees twenty five lakhs) without furnishing any security.2. On 18 April 2017 an extension of time of three days was granted to deposit the sum of Rs. 25,00,000 and for the balance until May 10, 2017. The Respondents were granted liberty to withdraw an amount of Rs. 25 lakhs as indicated in the earlier order dated 10 April 2017.3. During the course of the hearing, parties had agreed to pursue the possibility of a settlement through mediation which was recorded in the order of this Court dated 4 May 2017. The mediation failed.4. On 30 October 2017 this Court directed that the fixed deposit receipt be renewed for a period of six months.5. Pursuant to the above interim directions, the Petitioners deposited a sum of Rs. 35 lakhs. Out of the said amount, a sum of Rs. 25 lakhs was withdrawn by the Respondents. A balance of Rs. 10 lakhs is lying in deposit with the Registry which was invested in a fixed deposit. The aforesaid amounts were directed to be deposited by this Court in order to test the bona fides of the Petitioners.
### Response:
0
### Explanation:
5. Pursuant to the above interim directions, the Petitioners deposited a sum of Rs. 35 lakhs. Out of the said amount, a sum of Rs. 25 lakhs was withdrawn by the Respondents. A balance of Rs. 10 lakhs is lying in deposit with the Registry which was invested in a fixed deposit. The aforesaid amounts were directed to be deposited by this Court in order to test the bona fides of the Petitioners.
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Raj Mohan Mazumdar Vs. Ram Krishna Dass and Another | GUPTA, J. 1. This appeal by special leave is at the instance of a tenant questioning the correctness of the decision of the Calcutta High Court affirming a decree of ejectment made against him. The suit was decreed on the ground that the tenant was in default within the meaning of Section 13(1)(i) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) which makes default in the payment of rent a ground for eviction where the tenant has defaulted in paying rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly monthly. This is a case where rent was payable monthly. Section 21(1) of the Act requires the tenant to deposit rent with the Rent Controller in the case where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 of the Act. Under Section 4(2) rent is payable within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. It is not claimed in this case that there was any contract fixing the time for payment of rent. Section 22 fixes the time-limit for making deposit of rent with the Controller; sub-section (1) of the section permits the tenant, in the absence of any contract in writing, to deposit rent within the last day of the month following that for which the rent was payable. It appears from the impugned judgment that on August 11, 1965, the tenant had remitted by money order the rent payable for the month of July 1965, which was returned apparently because the landlord declined to accept the rent tendered to him, and the tenant received it back on August 14, 1965. Thereafter quite unnecessarily, the tenant made a second tender for the month of July 1965, beyond the prescribed time which also was not accepted and then started depositing the monthly rent with the Rent Controller from September 18, 1965, on which date the rent for the month of July was deposited. It is not found that except the deposit for the month of July, the deposits for the subsequent months were beyond time. There was thus not default in the payment of rent for two months to attract Section 13(1)(i). The High Court, However, decided against the tenant on the view that all the deposits were invalid because they were not preceded by "at least one valid tender". This finding does not seem to us to be correct because the High Court itself found that the rent for the month of July 1965 had been remitted by money order of August 11, 1965 which was well within time. That being so, the basis of the decision was wrong. 2. Mr. D. N. Mukherjee, appearing for the landlord-respondents, argues that sub-section (4-A) of Section 21 which permits the tenant to deposit the rent for subsequent months with the Controller without further tender of rent to the landlord after his refusal to accept a valid tender of rent for any month requires that the rent for the subsequent months is to be deposited with the Rent Controller within the time fixed by Section 4, i.e. by the fifteenth of the next subsequent month; according to Mr. Mukherjee the subsequent deposits are beyond time on such a construction of Section 21(4-A). In our opinion, a plain reading of Section 21 and Section 22 makes it clear that such a construction is not possible and this contention has no substance. | 1[ds]2. Mr. D. N. Mukherjee, appearing for the, argues that) of Section 21 which permits the tenant to deposit the rent for subsequent months with the Controller without further tender of rent to the landlord after his refusal to accept a valid tender of rent for any month requires that the rent for the subsequent months is to be deposited with the Rent Controller within the time fixed by Section 4, i.e. by the fifteenth of the next subsequent month;according to Mr. Mukherjee the subsequent deposits are beyond time on such a construction of Section. In our opinion, a plain reading of Section 21 and Section 22 makes it clear that such a construction is not possible and this contention has no substance. | 1 | 683 | 138 | ### 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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GUPTA, J. 1. This appeal by special leave is at the instance of a tenant questioning the correctness of the decision of the Calcutta High Court affirming a decree of ejectment made against him. The suit was decreed on the ground that the tenant was in default within the meaning of Section 13(1)(i) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) which makes default in the payment of rent a ground for eviction where the tenant has defaulted in paying rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly monthly. This is a case where rent was payable monthly. Section 21(1) of the Act requires the tenant to deposit rent with the Rent Controller in the case where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 of the Act. Under Section 4(2) rent is payable within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. It is not claimed in this case that there was any contract fixing the time for payment of rent. Section 22 fixes the time-limit for making deposit of rent with the Controller; sub-section (1) of the section permits the tenant, in the absence of any contract in writing, to deposit rent within the last day of the month following that for which the rent was payable. It appears from the impugned judgment that on August 11, 1965, the tenant had remitted by money order the rent payable for the month of July 1965, which was returned apparently because the landlord declined to accept the rent tendered to him, and the tenant received it back on August 14, 1965. Thereafter quite unnecessarily, the tenant made a second tender for the month of July 1965, beyond the prescribed time which also was not accepted and then started depositing the monthly rent with the Rent Controller from September 18, 1965, on which date the rent for the month of July was deposited. It is not found that except the deposit for the month of July, the deposits for the subsequent months were beyond time. There was thus not default in the payment of rent for two months to attract Section 13(1)(i). The High Court, However, decided against the tenant on the view that all the deposits were invalid because they were not preceded by "at least one valid tender". This finding does not seem to us to be correct because the High Court itself found that the rent for the month of July 1965 had been remitted by money order of August 11, 1965 which was well within time. That being so, the basis of the decision was wrong. 2. Mr. D. N. Mukherjee, appearing for the landlord-respondents, argues that sub-section (4-A) of Section 21 which permits the tenant to deposit the rent for subsequent months with the Controller without further tender of rent to the landlord after his refusal to accept a valid tender of rent for any month requires that the rent for the subsequent months is to be deposited with the Rent Controller within the time fixed by Section 4, i.e. by the fifteenth of the next subsequent month; according to Mr. Mukherjee the subsequent deposits are beyond time on such a construction of Section 21(4-A). In our opinion, a plain reading of Section 21 and Section 22 makes it clear that such a construction is not possible and this contention has no substance.
### Response:
1
### Explanation:
2. Mr. D. N. Mukherjee, appearing for the, argues that) of Section 21 which permits the tenant to deposit the rent for subsequent months with the Controller without further tender of rent to the landlord after his refusal to accept a valid tender of rent for any month requires that the rent for the subsequent months is to be deposited with the Rent Controller within the time fixed by Section 4, i.e. by the fifteenth of the next subsequent month;according to Mr. Mukherjee the subsequent deposits are beyond time on such a construction of Section. In our opinion, a plain reading of Section 21 and Section 22 makes it clear that such a construction is not possible and this contention has no substance.
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Commissioner of Income Tax, Kerala Vs. Pangal Vittal Nayak and Company Private Limited | having regard to the rates obtaining on that day, and the rate at which the transaction was entered into. On each such transaction, the assessee also receives a commission from the party on whose behalf the transaction was done. The assessee claimed that such commission received should be set off against its speculation losses on the ground that the commission received for placing forward contracts of this kind should be taken as part of its income from speculation, The Income-tax Officer rejected this claim. The Appellate Assistant Commissioner, on appeal, held that the commission received was profit arising out of speculation and was incidental to the speculation business carried on by the assessee and accordingly deleted the additions from the assessments for three years. The income-tax department appealed to the Appellate Tribunal which upheld the orders of the Appellate Assistant Commissioner and dismissed the appeal. The Appellate Tribunal thereafter referred the following question of law to the High Court under section 66(1) of the Indian Income-tax Act, 1922" Whether, on the facts and circumstances of the case, the Appellate Tribunal was correct in holding that commission received by the company amounting to Rs. 41, 197 (for 1958-59), Rs. 39, 730 (for 1959-60), and Rs. 22, 652 (for 1960-61), should be assessed under the head speculation business and not under regular business in the companys assessments for the years ended March 31, 1959, March 31, 1960, and March 31, 1961 ? "By its judgment dated September 2, 1964, the High Court answered the question in the affirmative and in favour of the assessee.2. Section 24(1) of the Income-tax Act, 1922, hereinafter called " the Act provides as follows:" 24. (1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that yearProvided that in computing the profits and gains chargeable under the head Profits and gains of business, profession or vocation , any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactionsExplanation 1.--Where the speculative transactions carried on are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other businessExplanation 2.--A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips:--Provided that for the purposes of this section, --(a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him; or(b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations; or(c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member ;shall not be deemed to be a speculative transaction."3. It was contended on behalf of the appellant that the view taken by the High Court is erroneous in law and the receipt of commission was a receipt from the business of the assessee as a broker and was not a receipt of income from the business of speculation and therefore the commission should not be assessed under the head " speculation business ". In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. The reason is that there is no element of speculation, whatever, in the commission income received by the assessee. The commission was earned and received by the assessee independently of any fluctuation in the market and no risk was involved in the earning of the commission and so it must be treated as profit from the other business of the assessee and not as profit from speculation business. To put it differently, the assessee carries on two kinds of businesses, one in speculation and the other as a broker. On behalf of the respondent it was pointed out that the commission earned by the assessee was incidental to his business in speculation and the commission receipts arise out of the speculative transactions carried on by the assessee and so the commission receipts should be treated as profits arising out of speculation and not as profits from separate business. We are unable to accept this argument as right. In our opinion, the receipts of commission business is entirely of a different character from the profits and losses of the speculative transactions. The assessee does speculation business on his own account with the members of the association. The assessee also enters into forward contracts on behalf of his clients. This may result in a profit, in which case he recovers the commission from the clients and pays the profit to them. If it is a loss, the clients are bound to bear it but the assessee still is entitled to charge the commission from his clients. The point to be noted is that the assessee carries on these speculative transactions on behalf of his clients and not on his own behalf. There is thus no element of speculation in the commission income received by the assessee and the commission is earned and received by him independently of the profit or loss sustained by his clients in the transaction. | 1[ds]3. It was contended on behalf of the appellant that the view taken by the High Court is erroneous in law and the receipt of commission was a receipt from the business of the assessee as a broker and was not a receipt of income from the business of speculation and therefore the commission should not be assessed under the head " speculation business ".In our opinion, the argument put forward on behalf of the appellant isand must be accepted as correct. The reason is that there is no element of speculation, whatever, in the commission income received by the assessee. The commission was earned and received by the assessee independently of any fluctuation in the market and no risk was involved in the earning of the commission and so it must be treated as profit from the other business of the assessee and not as profit from speculation business. To put it differently, the assessee carries on two kinds of businesses, one in speculation and the other as abehalf of the respondent it was pointed out that the commission earned by the assessee was incidental to his business in speculation and the commission receipts arise out of the speculative transactions carried on by the assessee and so the commission receipts should be treated as profits arising out of speculation and not as profits from separate business.We are unable to accept this argument as right. In our opinion, the receipts of commission business is entirely of a different character from the profits and losses of the speculative transactions. The assessee does speculation business on his own account with the members of the association. The assessee also enters into forward contracts on behalf of his clients. This may result in a profit, in which case he recovers the commission from the clients and pays the profit to them. If it is a loss, the clients are bound to bear it but the assessee still is entitled to charge the commission from his clients. The point to be noted is that the assessee carries on these speculative transactions on behalf of his clients and not on his own behalf. There is thus no element of speculation in the commission income received by the assessee and the commission is earned and received by him independently of the profit or loss sustained by his clients in the transaction. | 1 | 1,324 | 419 | ### Instruction:
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having regard to the rates obtaining on that day, and the rate at which the transaction was entered into. On each such transaction, the assessee also receives a commission from the party on whose behalf the transaction was done. The assessee claimed that such commission received should be set off against its speculation losses on the ground that the commission received for placing forward contracts of this kind should be taken as part of its income from speculation, The Income-tax Officer rejected this claim. The Appellate Assistant Commissioner, on appeal, held that the commission received was profit arising out of speculation and was incidental to the speculation business carried on by the assessee and accordingly deleted the additions from the assessments for three years. The income-tax department appealed to the Appellate Tribunal which upheld the orders of the Appellate Assistant Commissioner and dismissed the appeal. The Appellate Tribunal thereafter referred the following question of law to the High Court under section 66(1) of the Indian Income-tax Act, 1922" Whether, on the facts and circumstances of the case, the Appellate Tribunal was correct in holding that commission received by the company amounting to Rs. 41, 197 (for 1958-59), Rs. 39, 730 (for 1959-60), and Rs. 22, 652 (for 1960-61), should be assessed under the head speculation business and not under regular business in the companys assessments for the years ended March 31, 1959, March 31, 1960, and March 31, 1961 ? "By its judgment dated September 2, 1964, the High Court answered the question in the affirmative and in favour of the assessee.2. Section 24(1) of the Income-tax Act, 1922, hereinafter called " the Act provides as follows:" 24. (1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that yearProvided that in computing the profits and gains chargeable under the head Profits and gains of business, profession or vocation , any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactionsExplanation 1.--Where the speculative transactions carried on are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other businessExplanation 2.--A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips:--Provided that for the purposes of this section, --(a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him; or(b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations; or(c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member ;shall not be deemed to be a speculative transaction."3. It was contended on behalf of the appellant that the view taken by the High Court is erroneous in law and the receipt of commission was a receipt from the business of the assessee as a broker and was not a receipt of income from the business of speculation and therefore the commission should not be assessed under the head " speculation business ". In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. The reason is that there is no element of speculation, whatever, in the commission income received by the assessee. The commission was earned and received by the assessee independently of any fluctuation in the market and no risk was involved in the earning of the commission and so it must be treated as profit from the other business of the assessee and not as profit from speculation business. To put it differently, the assessee carries on two kinds of businesses, one in speculation and the other as a broker. On behalf of the respondent it was pointed out that the commission earned by the assessee was incidental to his business in speculation and the commission receipts arise out of the speculative transactions carried on by the assessee and so the commission receipts should be treated as profits arising out of speculation and not as profits from separate business. We are unable to accept this argument as right. In our opinion, the receipts of commission business is entirely of a different character from the profits and losses of the speculative transactions. The assessee does speculation business on his own account with the members of the association. The assessee also enters into forward contracts on behalf of his clients. This may result in a profit, in which case he recovers the commission from the clients and pays the profit to them. If it is a loss, the clients are bound to bear it but the assessee still is entitled to charge the commission from his clients. The point to be noted is that the assessee carries on these speculative transactions on behalf of his clients and not on his own behalf. There is thus no element of speculation in the commission income received by the assessee and the commission is earned and received by him independently of the profit or loss sustained by his clients in the transaction.
### Response:
1
### Explanation:
3. It was contended on behalf of the appellant that the view taken by the High Court is erroneous in law and the receipt of commission was a receipt from the business of the assessee as a broker and was not a receipt of income from the business of speculation and therefore the commission should not be assessed under the head " speculation business ".In our opinion, the argument put forward on behalf of the appellant isand must be accepted as correct. The reason is that there is no element of speculation, whatever, in the commission income received by the assessee. The commission was earned and received by the assessee independently of any fluctuation in the market and no risk was involved in the earning of the commission and so it must be treated as profit from the other business of the assessee and not as profit from speculation business. To put it differently, the assessee carries on two kinds of businesses, one in speculation and the other as abehalf of the respondent it was pointed out that the commission earned by the assessee was incidental to his business in speculation and the commission receipts arise out of the speculative transactions carried on by the assessee and so the commission receipts should be treated as profits arising out of speculation and not as profits from separate business.We are unable to accept this argument as right. In our opinion, the receipts of commission business is entirely of a different character from the profits and losses of the speculative transactions. The assessee does speculation business on his own account with the members of the association. The assessee also enters into forward contracts on behalf of his clients. This may result in a profit, in which case he recovers the commission from the clients and pays the profit to them. If it is a loss, the clients are bound to bear it but the assessee still is entitled to charge the commission from his clients. The point to be noted is that the assessee carries on these speculative transactions on behalf of his clients and not on his own behalf. There is thus no element of speculation in the commission income received by the assessee and the commission is earned and received by him independently of the profit or loss sustained by his clients in the transaction.
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Bengal Enamel Works Ltd Vs. Commissioner Of Income-Tax, West Bengal | in the light of the circumstances of each case: Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).Resolution of the assessee fixing the remuneration to be paid to an employee and production of vouchers for payment together with proof of rendering service do not exclude an enquiry whether the expenditure was laid out wholly and exclusively for the purpose of the assessees business. It is open to the Tax Officers to hold - agreement to pay and payment notwithstanding - that the expenditure was not laid out wholly and exclusively for the purpose of the business: Swadeshi Cotton Mills Co. Ltd.s case, (1967) 63 ITR 57 (SC). But an inference from the facts found that the expenditure was wholly and exclusively laid out for the purpose of the business is one of law and not of fact, and the High Court in a reference under Section 66 of the Income-tax Act is competent to decide that inference raised by the Tribunal is erroneous in law.6. In the present case, the facts found are these: Col. Bhattacharya and his son-in-law Dr. Ganguly were two of the directors of the Company who between them held on January 1, 1950, 49% of the total number of shares of the Company and the other directors of the Company held only 1% of the shares. Dr. Ganguly had received no training in the technique of enamelling: he was a medical practitioner earning Rs. 20,000 per annum by the exercise of his profession. Apparently no applications were invited for the appointment of a Technical Adviser when Col. Bhattacharya resigned his office. In the resolution passed by the Directors it was recorded that many "personal enquiries" regarding the post were made, but no candidate was found suitable. The Board, it was recorded, considered the applications of S. Urbeneck and J. Schulser but the qualifications of these two candidates did not impress the directors: moreover the terms of service offered by J. Schulser were not acceptable to the Board and therefore only the applicant Dr. Ganguly who was working on probation in the post for some time past and had worked without remuneration upto December 31, 1949 was considered. The applications of S. Urbeneck and J. Schulser though called for by the Income-tax Officer were not produced by the Company. At the relevant time "a good technical expert in enamelling" could be secured for a monthly remuneration of Rs. 1000 or Rs. 1200 provided that appointment was not for a short period.7. In the view of the Income-tax Officer, Dr. Ganguly came to be appointed to the post of Technical Adviser of the Company as soon as his father-in-law vacated the post and "the generous remuneration offered to him was influenced by factors other than commercial considerations, and considering that Dr. Ganguli was giving up his professional practice in allopathic medicine which yielded him an annual income of Rs. 20,000 to engage himself as a whole-time Adviser attending to the development of the industry a gross remuneration of Rs. 3,500 per month, beside the remuneration of Rs. 1,000 per month that he obtained as Secretary of the Managing Agents of the Company, would be adequate." With that view the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal have substantially agree. The Tribunal observed that they were inclined to conclude that "extra commercial considerations" had influenced the fixation of remuneration of Dr. Ganguli and that partial disallowance of the remuneration "so influenced seems quite fair."8. Counsel for the Company urged, relying upon the judgments of this Court in J. K. Woollen Manufacturers v. Commr. of Income-tax, U. P., AIR 1969 SC 609 and Commr. of Income-tax, Bombay v. Walchand and Co., Private Ltd., 65 ITR 381 = (AIR 1967 SC 1435 ) that in determining the admissibility of an allowance as expenditure laid out and expended wholly and exclusively for the purpose of the business has to be adjudged from the point of view of the employer and not of the revenue, the Taxing authorities had no power to disallow the remuneration paid to its Technical Adviser, merely because they think that the Company may probably have secured the services of another Adviser for a smaller remuneration. But these cases, in our judgment, have no bearing here. The departmental authorities have not attempted to reduce the allowance on the ground that the remuneration paid to Dr. Ganguli was in their view excessive.Indisputably an employer in fixing the remuneration of his employee is entitled to take into consideration the extent of his business, the nature of duties to be performed, the special aptitude of the employee, the future prospects of the business and other related circumstances and the taxing authorities cannot substitute their own view as to the reasonable remuneration which should have been agreed to be paid to the employee. But the taxing authority may disallow an expenditure claimed on the ground that the payment is not real or is not incurred by the assessee in the course of his business or that it is not laid out wholly and exclusively for the purpose of the business of the assessee. Thereby the authority does not substitute its own view of how the assessees business affairs should be managed, but proceeds to disallow the expenditure because the condition of its admissibility is absent.9. It has been uniformly found by all the authorities that the remuneration agreed to be paid to Dr. Ganguly was influenced by "extra-commercial considerations". Dr. Ganguly and Col. Bhattacharya were able to control the voting before the Board of Directors. Dr. Ganguly was not trained in the technique of "enamelled-ware", and had no special qualifications for the post. The remuneration agreed to be paid was much in excess of what was normally payable, and also of what Dr. Ganguly was earning by practising his profession as a doctor of medicine.The criticism that the Tribunals finding was based on no evidence or was based on irrelevant considerations cannot therefore be accepted. | 1[ds]5. In computing the taxable income of an assessee whether an amount claimed as expenditure was laid out or expended wholly and exclusively for the purpose of the business, profession or vocation of the assessee must be decided on the facts and in the light of the circumstances of each case: Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).Resolution of the assessee fixing the remuneration to be paid to an employee and production of vouchers for payment together with proof of rendering service do not exclude an enquiry whether the expenditure was laid out wholly and exclusively for the purpose of the assessees business. It is open to the Tax Officers to hold - agreement to pay and payment notwithstanding - that the expenditure was not laid out wholly and exclusively for the purpose of the business: Swadeshi Cotton Mills Co. Ltd.s case, (1967) 63 ITR 57 (SC). But an inference from the facts found that the expenditure was wholly and exclusively laid out for the purpose of the business is one of law and not of fact, and the High Court in a reference under Section 66 of the Income-tax Act is competent to decide that inference raised by the Tribunal is erroneous in law.It has been uniformly found by all the authorities that the remuneration agreed to be paid to Dr. Ganguly was influenced by "extra-commercial considerations". Dr. Ganguly and Col. Bhattacharya were able to control the voting before the Board of Directors. Dr. Ganguly was not trained in the technique of "enamelled-ware", and had no special qualifications for the post. The remuneration agreed to be paid was much in excess of what was normally payable, and also of what Dr. Ganguly was earning by practising his profession as a doctor of medicine.The criticism that the Tribunals finding was based on no evidence or was based on irrelevant considerations cannot therefore be accepted. | 1 | 1,515 | 358 | ### Instruction:
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in the light of the circumstances of each case: Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).Resolution of the assessee fixing the remuneration to be paid to an employee and production of vouchers for payment together with proof of rendering service do not exclude an enquiry whether the expenditure was laid out wholly and exclusively for the purpose of the assessees business. It is open to the Tax Officers to hold - agreement to pay and payment notwithstanding - that the expenditure was not laid out wholly and exclusively for the purpose of the business: Swadeshi Cotton Mills Co. Ltd.s case, (1967) 63 ITR 57 (SC). But an inference from the facts found that the expenditure was wholly and exclusively laid out for the purpose of the business is one of law and not of fact, and the High Court in a reference under Section 66 of the Income-tax Act is competent to decide that inference raised by the Tribunal is erroneous in law.6. In the present case, the facts found are these: Col. Bhattacharya and his son-in-law Dr. Ganguly were two of the directors of the Company who between them held on January 1, 1950, 49% of the total number of shares of the Company and the other directors of the Company held only 1% of the shares. Dr. Ganguly had received no training in the technique of enamelling: he was a medical practitioner earning Rs. 20,000 per annum by the exercise of his profession. Apparently no applications were invited for the appointment of a Technical Adviser when Col. Bhattacharya resigned his office. In the resolution passed by the Directors it was recorded that many "personal enquiries" regarding the post were made, but no candidate was found suitable. The Board, it was recorded, considered the applications of S. Urbeneck and J. Schulser but the qualifications of these two candidates did not impress the directors: moreover the terms of service offered by J. Schulser were not acceptable to the Board and therefore only the applicant Dr. Ganguly who was working on probation in the post for some time past and had worked without remuneration upto December 31, 1949 was considered. The applications of S. Urbeneck and J. Schulser though called for by the Income-tax Officer were not produced by the Company. At the relevant time "a good technical expert in enamelling" could be secured for a monthly remuneration of Rs. 1000 or Rs. 1200 provided that appointment was not for a short period.7. In the view of the Income-tax Officer, Dr. Ganguly came to be appointed to the post of Technical Adviser of the Company as soon as his father-in-law vacated the post and "the generous remuneration offered to him was influenced by factors other than commercial considerations, and considering that Dr. Ganguli was giving up his professional practice in allopathic medicine which yielded him an annual income of Rs. 20,000 to engage himself as a whole-time Adviser attending to the development of the industry a gross remuneration of Rs. 3,500 per month, beside the remuneration of Rs. 1,000 per month that he obtained as Secretary of the Managing Agents of the Company, would be adequate." With that view the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal have substantially agree. The Tribunal observed that they were inclined to conclude that "extra commercial considerations" had influenced the fixation of remuneration of Dr. Ganguli and that partial disallowance of the remuneration "so influenced seems quite fair."8. Counsel for the Company urged, relying upon the judgments of this Court in J. K. Woollen Manufacturers v. Commr. of Income-tax, U. P., AIR 1969 SC 609 and Commr. of Income-tax, Bombay v. Walchand and Co., Private Ltd., 65 ITR 381 = (AIR 1967 SC 1435 ) that in determining the admissibility of an allowance as expenditure laid out and expended wholly and exclusively for the purpose of the business has to be adjudged from the point of view of the employer and not of the revenue, the Taxing authorities had no power to disallow the remuneration paid to its Technical Adviser, merely because they think that the Company may probably have secured the services of another Adviser for a smaller remuneration. But these cases, in our judgment, have no bearing here. The departmental authorities have not attempted to reduce the allowance on the ground that the remuneration paid to Dr. Ganguli was in their view excessive.Indisputably an employer in fixing the remuneration of his employee is entitled to take into consideration the extent of his business, the nature of duties to be performed, the special aptitude of the employee, the future prospects of the business and other related circumstances and the taxing authorities cannot substitute their own view as to the reasonable remuneration which should have been agreed to be paid to the employee. But the taxing authority may disallow an expenditure claimed on the ground that the payment is not real or is not incurred by the assessee in the course of his business or that it is not laid out wholly and exclusively for the purpose of the business of the assessee. Thereby the authority does not substitute its own view of how the assessees business affairs should be managed, but proceeds to disallow the expenditure because the condition of its admissibility is absent.9. It has been uniformly found by all the authorities that the remuneration agreed to be paid to Dr. Ganguly was influenced by "extra-commercial considerations". Dr. Ganguly and Col. Bhattacharya were able to control the voting before the Board of Directors. Dr. Ganguly was not trained in the technique of "enamelled-ware", and had no special qualifications for the post. The remuneration agreed to be paid was much in excess of what was normally payable, and also of what Dr. Ganguly was earning by practising his profession as a doctor of medicine.The criticism that the Tribunals finding was based on no evidence or was based on irrelevant considerations cannot therefore be accepted.
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5. In computing the taxable income of an assessee whether an amount claimed as expenditure was laid out or expended wholly and exclusively for the purpose of the business, profession or vocation of the assessee must be decided on the facts and in the light of the circumstances of each case: Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).Resolution of the assessee fixing the remuneration to be paid to an employee and production of vouchers for payment together with proof of rendering service do not exclude an enquiry whether the expenditure was laid out wholly and exclusively for the purpose of the assessees business. It is open to the Tax Officers to hold - agreement to pay and payment notwithstanding - that the expenditure was not laid out wholly and exclusively for the purpose of the business: Swadeshi Cotton Mills Co. Ltd.s case, (1967) 63 ITR 57 (SC). But an inference from the facts found that the expenditure was wholly and exclusively laid out for the purpose of the business is one of law and not of fact, and the High Court in a reference under Section 66 of the Income-tax Act is competent to decide that inference raised by the Tribunal is erroneous in law.It has been uniformly found by all the authorities that the remuneration agreed to be paid to Dr. Ganguly was influenced by "extra-commercial considerations". Dr. Ganguly and Col. Bhattacharya were able to control the voting before the Board of Directors. Dr. Ganguly was not trained in the technique of "enamelled-ware", and had no special qualifications for the post. The remuneration agreed to be paid was much in excess of what was normally payable, and also of what Dr. Ganguly was earning by practising his profession as a doctor of medicine.The criticism that the Tribunals finding was based on no evidence or was based on irrelevant considerations cannot therefore be accepted.
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Challapalli Sugar Ltd Vs. The Commissioner Of Income Tax, A.P. Hyderabad | or vocation" or "Income from other sources". There is, however, a saving clause contained in section 5 of the amending Act and it reads as under:"Where, before the 15th day of July, 1972 being the date on which the Income tax (Amendment) Ordinance, 1972 came into force, the Supreme Court has, on an appeal in respect of the assessment of an assessee for any particular assessment year, held that wealth- tax paid by the assessee is deductible in computing the total income of that year, then, nothing contained in sub clause (iia) of clause (a) of section 40, or sub-section (IA) of section 58, of the principal Act, as amended by this Act, or, as the case may be, section 4 of this Act, shall apply to the assessment of such assessee for that particular year."29. Mr. Palkhivala submits that the case of the assessee in respect of the second question in civil appeal No. 1784 is covered by section 5 of the amending Act reproduced above.30. To appreciate the above submission, we may observe that civil appeals Nos. 1784 and 1785 of 1970 along with civil appeals Nos. 1694 and 1730 of Indian Aluminium Co. and civil appeal No. 1831 of 1970 of Standard Vacuum Oil Co. were argued before the Constitution Bench on February 1, 1972. The Court reserved judgments in civil appeals No. 1694 and 1730 of Indian Aluminium CO. and civil appeal No. 1831 of standard Vacuum Oil Co. As an additional question relating to the inclusion of interest in the calculation of the actual cost arose in civil appeals Nos. 1784 and 1785 of 1970, the Court after hearing some arguments on that point in these appeals directed that they be heard by a Division Bench after the pronouncement of judgment in civil appeals No. 1694, 1730 and 1831. Judgments in those three appeals, i.e. two appeals of Indian Aluminium Co. and one of Standard Vacuum Oil Co. were pronounced on March 29, 1972. The decision in the appeals in the case of Indian Aluminium Co. is reported, as already mentioned, in (1972)84 ITR 735 , while that in the case of Standard Vacuum Oil Co. is reported in (1972) 86 ITR 1 .31. The submission made by Mr. Palkhivala is that even though no final order was pronounced in civil appeal No. 1784 before July 15, 1972, the effect of the judgment in the other three civil appeals Nos. 1694, 1730 and 1831, which were heard along with civil appeal No. 1784 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was that this Court held that the same was to be the decision on that point in civil appeal No. 1784. As against that, Mr. Desai contend s that there was no finding by this Court before July 15, 1972 in civil appeal No. 1784 that the wealth tax paid by the assessee was deductible in computing the total income of the assessee.32. There is, in our opinion, force in the submission of Mr. Palkhivala. As stated above, arguments were heard together on February 1, 1972 in civil appeals Nos. 1784, 1694, 1730 and 1831 on the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2) (xv) o f the Indian Income-tax Act. On the conclusion of the arguments on that point, this Court found that an additional question arose in civil appeal No. 1784 on the point as to whether the interest payable on loan was part of the actual cost of the assets. The Constitution Bench after hearing arguments on this additional point for some, time directed that civil appeal No. 1784 along with the connected civil appeal 1785 should be posted for hearing before a Division Bench after pronouncement of judgment in civil appeals Nos. 1694, 1730 and 1831. The effect of the above order which was made on February 1, 1972 was that the decision in civil appeals Nos. 1694, 1730 and 1831 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was also to be the decision in civil appeal No. 1784. After the judgments of the Constitution Bench in civil appeals Nos. 1694, 1730 and 1831 on March 29, 1972 the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2)(xv) of the Act no longer remained subject of controversy in civil appeal No. 1784 as the decision on that point in the three appeals was also to govern the decision in appeal No. 1784. It is no doubt true that civil appeal No. 1784 was not disposed of before July 15, 1972 but that fact would not prevent the case of the assessee in that appeal being covered by section 5 of. the amending Act. What is necessary to at tract that section is that this Court should have held before July 15, 1972 on an appeal in respect of an assessment of the assessee for any particular assessment year that the wealth-tax paid by the assessee is deductible in computing the total income of that at year. Once that is the effect of a decision given by this Court fore July 15, 1972 the fact that the judgment in which the above finding is recorded is given in other appeals, which are heard together along with the appeal of the assessee and the further fact that assessees appeal is not disposed of before July 15, 1972 would not take the case of the assessee out of the purview of section 5. We would, therefore, hold that the case of the assessee in civil appeal No. 1784 is covered by section 5 of the amending Act.33. We, however, make it clear that the benefit of section 5 of the amending Act so far as the second question in civil appeal No. 1784 is concerned would be available only in respect of wealth-tax paid and not merely payable.34. | 0[ds]After hearing the learned counsel for the parties, we are of the opinion that the submission made by Mr. Palkhivala isfinding the answer to the question mentioned above, we have to bear in mind that it arises in the context of profits or gains of business and the permissible deductions on account of depreciation and development rebate relating to the machinery and plant of the assessee. As the expression "actual cost" has not been defined, it should, in our opinion, be construed in the sense which no commercial man would misunderstand. For this purpose it would be necessary to ascertain the connotation of the above, expression in accordance with the normal rules of accountancy prevailing in commerce and industry. The word "cost", as observed on page 424 of Simons Taxes B Third Edition, is not synonymous with "price". Other items of expenditure, such for instance as freight or warehouse charges or insurance, must in certain cases be added to thewould appear from the above that the accepted accountancy rule for determining the cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets which have been created as a result of such expenditure. The above rule of accountancy should, in our view, be adopted for determining the actual cost of the assets in the absence of any statutory definition or other indication to thehave already referred to section 208 of the Companies Act which makes provision for payment of interest on Share capital in , certain contingencies. Clause (b) of sub- section (1) of that section provides that in case interest is paid on share capital issued for the purpose of raising money to defray the expenses of constructing any work or building or the provision of any plant in contingencies mentioned in that section, the sum so paid by way of interest may be charged to capital as part of the cost of construction of the work or building or the provision of the plant. The above provision thus , gives statutory recognition to the principle of capitalising the interest in case the interest is paid on money raised to defray expenses of the construction of any work or building or the provision of any plant. in contingencies mentioned in that section even though such money constitutes share capital. The same principle, in our opinion, should hold good if interest is paid on money not raised by way of share capital but taken on loan for the purpose of defraying the expenses of the construction of any work or building or the provision of any plant. The reason indeed would be stronger in case, such interest is paid on money taken on loan for meeting the above expenses.Desai has argued that if the interest paid on loan incurred for the purpose of acquisition and installing the machinery of a plant is to be taken into account in considering the actual cost of the plant, the result would be that the actual cost would be higher if the machinery for the plant is acquired and installed with borrowed money compared to the cost of such plant in case the money spent for the acquisition and installation of the above machinery is that which belongs to the assessee. This undoubtedly is so but it is inevitable and should not detract from the conclusion at which we have arrived. Let us take the case of an architect constructing his house. In case the architect engages another architect to prepare the plan for his house and to supervise its construction and pays remuneration to that other architect for this purpose, the amount so paid to the other architect shall have to be taken into account in arriving at the figure of actual cost of the house. In case, however, the architect constructing the house himself prepares the plan of the house and supervises its construction, he would naturally be not paying any remuneration to himself for the aforesaid work The result would be that in the latter event the actual cost of the house would be less compared to the cost of the house in the former event even though the house in all other respects is identical. It would therefore, follow that for similar fixed assets there can be different actual costs. The fact that there would be a difference in the actual cost of the plant in case its machinery is acquired and installed with the assessees own money or in case it is acquired and installed with borrowed money does not consequently militate against the answer which we propose to give to the question referred in the threesubmission made by Mr. Palkhivala is that even though no final order was pronounced in civil appeal No. 1784 before July 15, 1972, the effect of the judgment in the other three civil appeals Nos. 1694, 1730 and 1831, which were heard along with civil appeal No. 1784 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was that this Court held that the same was to be the decision on that point in civil appeal No. 1784. As against that, Mr. Desai contend s that there was no finding by this Court before July 15, 1972 in civil appeal No. 1784 that the wealth tax paid by the assessee was deductible in computing the total income of theis, in our opinion, force in the submission of Mr. Palkhivala. As stated above, arguments were heard together on February 1, 1972 in civil appeals Nos. 1784, 1694, 1730 and 1831 on the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2) (xv) o f the Indian Income-tax Act. On the conclusion of the arguments on that point, this Court found that an additional question arose in civil appeal No. 1784 on the point as to whether the interest payable on loan was part of the actual cost of the assets. The Constitution Bench after hearing arguments on this additional point for some, time directed that civil appeal No. 1784 along with the connected civil appeal 1785 should be posted for hearing before a Division Bench after pronouncement of judgment in civil appeals Nos. 1694, 1730 and 1831. The effect of the above order which was made on February 1, 1972 was that the decision in civil appeals Nos. 1694, 1730 and 1831 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was also to be the decision in civil appeal No. 1784. After the judgments of the Constitution Bench in civil appeals Nos. 1694, 1730 and 1831 on March 29, 1972 the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2)(xv) of the Act no longer remained subject of controversy in civil appeal No. 1784 as the decision on that point in the three appeals was also to govern the decision in appeal No. 1784. It is no doubt true that civil appeal No. 1784 was not disposed of before July 15, 1972 but that fact would not prevent the case of the assessee in that appeal being covered by section 5 of. the amending Act. What is necessary to at tract that section is that this Court should have held before July 15, 1972 on an appeal in respect of an assessment of the assessee for any particular assessment year that the wealth-tax paid by the assessee is deductible in computing the total income of that at year. Once that is the effect of a decision given by this Court fore July 15, 1972 the fact that the judgment in which the above finding is recorded is given in other appeals, which are heard together along with the appeal of the assessee and the further fact that assessees appeal is not disposed of before July 15, 1972 would not take the case of the assessee out of the purview of section 5. We would, therefore, hold that the case of the assessee in civil appeal No. 1784 is covered by section 5 of the amendinghowever, make it clear that the benefit of section 5 of the amending Act so far as the second question in civil appeal No. 1784 is concerned would be available only in respect of wealth-tax paid and not merely payable. | 0 | 6,931 | 1,571 | ### 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 vocation" or "Income from other sources". There is, however, a saving clause contained in section 5 of the amending Act and it reads as under:"Where, before the 15th day of July, 1972 being the date on which the Income tax (Amendment) Ordinance, 1972 came into force, the Supreme Court has, on an appeal in respect of the assessment of an assessee for any particular assessment year, held that wealth- tax paid by the assessee is deductible in computing the total income of that year, then, nothing contained in sub clause (iia) of clause (a) of section 40, or sub-section (IA) of section 58, of the principal Act, as amended by this Act, or, as the case may be, section 4 of this Act, shall apply to the assessment of such assessee for that particular year."29. Mr. Palkhivala submits that the case of the assessee in respect of the second question in civil appeal No. 1784 is covered by section 5 of the amending Act reproduced above.30. To appreciate the above submission, we may observe that civil appeals Nos. 1784 and 1785 of 1970 along with civil appeals Nos. 1694 and 1730 of Indian Aluminium Co. and civil appeal No. 1831 of 1970 of Standard Vacuum Oil Co. were argued before the Constitution Bench on February 1, 1972. The Court reserved judgments in civil appeals No. 1694 and 1730 of Indian Aluminium CO. and civil appeal No. 1831 of standard Vacuum Oil Co. As an additional question relating to the inclusion of interest in the calculation of the actual cost arose in civil appeals Nos. 1784 and 1785 of 1970, the Court after hearing some arguments on that point in these appeals directed that they be heard by a Division Bench after the pronouncement of judgment in civil appeals No. 1694, 1730 and 1831. Judgments in those three appeals, i.e. two appeals of Indian Aluminium Co. and one of Standard Vacuum Oil Co. were pronounced on March 29, 1972. The decision in the appeals in the case of Indian Aluminium Co. is reported, as already mentioned, in (1972)84 ITR 735 , while that in the case of Standard Vacuum Oil Co. is reported in (1972) 86 ITR 1 .31. The submission made by Mr. Palkhivala is that even though no final order was pronounced in civil appeal No. 1784 before July 15, 1972, the effect of the judgment in the other three civil appeals Nos. 1694, 1730 and 1831, which were heard along with civil appeal No. 1784 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was that this Court held that the same was to be the decision on that point in civil appeal No. 1784. As against that, Mr. Desai contend s that there was no finding by this Court before July 15, 1972 in civil appeal No. 1784 that the wealth tax paid by the assessee was deductible in computing the total income of the assessee.32. There is, in our opinion, force in the submission of Mr. Palkhivala. As stated above, arguments were heard together on February 1, 1972 in civil appeals Nos. 1784, 1694, 1730 and 1831 on the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2) (xv) o f the Indian Income-tax Act. On the conclusion of the arguments on that point, this Court found that an additional question arose in civil appeal No. 1784 on the point as to whether the interest payable on loan was part of the actual cost of the assets. The Constitution Bench after hearing arguments on this additional point for some, time directed that civil appeal No. 1784 along with the connected civil appeal 1785 should be posted for hearing before a Division Bench after pronouncement of judgment in civil appeals Nos. 1694, 1730 and 1831. The effect of the above order which was made on February 1, 1972 was that the decision in civil appeals Nos. 1694, 1730 and 1831 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was also to be the decision in civil appeal No. 1784. After the judgments of the Constitution Bench in civil appeals Nos. 1694, 1730 and 1831 on March 29, 1972 the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2)(xv) of the Act no longer remained subject of controversy in civil appeal No. 1784 as the decision on that point in the three appeals was also to govern the decision in appeal No. 1784. It is no doubt true that civil appeal No. 1784 was not disposed of before July 15, 1972 but that fact would not prevent the case of the assessee in that appeal being covered by section 5 of. the amending Act. What is necessary to at tract that section is that this Court should have held before July 15, 1972 on an appeal in respect of an assessment of the assessee for any particular assessment year that the wealth-tax paid by the assessee is deductible in computing the total income of that at year. Once that is the effect of a decision given by this Court fore July 15, 1972 the fact that the judgment in which the above finding is recorded is given in other appeals, which are heard together along with the appeal of the assessee and the further fact that assessees appeal is not disposed of before July 15, 1972 would not take the case of the assessee out of the purview of section 5. We would, therefore, hold that the case of the assessee in civil appeal No. 1784 is covered by section 5 of the amending Act.33. We, however, make it clear that the benefit of section 5 of the amending Act so far as the second question in civil appeal No. 1784 is concerned would be available only in respect of wealth-tax paid and not merely payable.34.
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is paid on money not raised by way of share capital but taken on loan for the purpose of defraying the expenses of the construction of any work or building or the provision of any plant. The reason indeed would be stronger in case, such interest is paid on money taken on loan for meeting the above expenses.Desai has argued that if the interest paid on loan incurred for the purpose of acquisition and installing the machinery of a plant is to be taken into account in considering the actual cost of the plant, the result would be that the actual cost would be higher if the machinery for the plant is acquired and installed with borrowed money compared to the cost of such plant in case the money spent for the acquisition and installation of the above machinery is that which belongs to the assessee. This undoubtedly is so but it is inevitable and should not detract from the conclusion at which we have arrived. Let us take the case of an architect constructing his house. In case the architect engages another architect to prepare the plan for his house and to supervise its construction and pays remuneration to that other architect for this purpose, the amount so paid to the other architect shall have to be taken into account in arriving at the figure of actual cost of the house. In case, however, the architect constructing the house himself prepares the plan of the house and supervises its construction, he would naturally be not paying any remuneration to himself for the aforesaid work The result would be that in the latter event the actual cost of the house would be less compared to the cost of the house in the former event even though the house in all other respects is identical. It would therefore, follow that for similar fixed assets there can be different actual costs. The fact that there would be a difference in the actual cost of the plant in case its machinery is acquired and installed with the assessees own money or in case it is acquired and installed with borrowed money does not consequently militate against the answer which we propose to give to the question referred in the threesubmission made by Mr. Palkhivala is that even though no final order was pronounced in civil appeal No. 1784 before July 15, 1972, the effect of the judgment in the other three civil appeals Nos. 1694, 1730 and 1831, which were heard along with civil appeal No. 1784 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was that this Court held that the same was to be the decision on that point in civil appeal No. 1784. As against that, Mr. Desai contend s that there was no finding by this Court before July 15, 1972 in civil appeal No. 1784 that the wealth tax paid by the assessee was deductible in computing the total income of theis, in our opinion, force in the submission of Mr. Palkhivala. As stated above, arguments were heard together on February 1, 1972 in civil appeals Nos. 1784, 1694, 1730 and 1831 on the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2) (xv) o f the Indian Income-tax Act. On the conclusion of the arguments on that point, this Court found that an additional question arose in civil appeal No. 1784 on the point as to whether the interest payable on loan was part of the actual cost of the assets. The Constitution Bench after hearing arguments on this additional point for some, time directed that civil appeal No. 1784 along with the connected civil appeal 1785 should be posted for hearing before a Division Bench after pronouncement of judgment in civil appeals Nos. 1694, 1730 and 1831. The effect of the above order which was made on February 1, 1972 was that the decision in civil appeals Nos. 1694, 1730 and 1831 on the point as to whether the wealth-tax paid by the assessee was a permissible deduction, was also to be the decision in civil appeal No. 1784. After the judgments of the Constitution Bench in civil appeals Nos. 1694, 1730 and 1831 on March 29, 1972 the question as to whether the wealth-tax paid by the assessee was a permissible deduction under section 10(2)(xv) of the Act no longer remained subject of controversy in civil appeal No. 1784 as the decision on that point in the three appeals was also to govern the decision in appeal No. 1784. It is no doubt true that civil appeal No. 1784 was not disposed of before July 15, 1972 but that fact would not prevent the case of the assessee in that appeal being covered by section 5 of. the amending Act. What is necessary to at tract that section is that this Court should have held before July 15, 1972 on an appeal in respect of an assessment of the assessee for any particular assessment year that the wealth-tax paid by the assessee is deductible in computing the total income of that at year. Once that is the effect of a decision given by this Court fore July 15, 1972 the fact that the judgment in which the above finding is recorded is given in other appeals, which are heard together along with the appeal of the assessee and the further fact that assessees appeal is not disposed of before July 15, 1972 would not take the case of the assessee out of the purview of section 5. We would, therefore, hold that the case of the assessee in civil appeal No. 1784 is covered by section 5 of the amendinghowever, make it clear that the benefit of section 5 of the amending Act so far as the second question in civil appeal No. 1784 is concerned would be available only in respect of wealth-tax paid and not merely payable.
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COAL INDIA LTD Vs. NAVIN KUMAR SINGH | clause 11 deals with the latter. There is no express stipulation in the policy – be it clause 11 or any other official document – to even remotely suggest that on seeking inter-company transfer on personal grounds, the executive concerned would lose even his past service rendered by him in the parent unit (DCC) for all purposes. In absence of such a stipulation, the claim of the respondent could not have been rejected by the department. This proposition is reinforced from the dictum in C.N. Ponnappan (supra), which has been noted with approval in V.M. Joseph (supra). The two-Judge Bench of this Court in C.N. Ponnappan (supra), observed as follows: ?4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.? (emphasis supplied) 15. This view has been restated by another two-Judge Bench of this Court in V.M. Joseph (supra), in paragraph 6 which reads as follows: ?6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Storekeeper on the ground that he had completed 3 years of regular service as Storekeeper on 7-6-1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Storekeeper for the period from 27-4-1971 to 6-6-1977. The appellants contended that, since the respondent had been transferred on compassionate grounds on his own request to the post of Storekeeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Storekeeper. Even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.? (emphasis supplied) 16. In the present case, there is no dispute that the respondent had rendered service in E-2 Grade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority in E-2 Grade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL in E-2 Grade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service in E-2 Grade for promotion to E-3 Grade. For determining the eligibility for promotion to E-3 Grade, the service rendered by him in DCC in E-2 Grade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent in E-3 Grade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted for inter-company transfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted for inter-company transfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy for inter-company transfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service in E-2 Grade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case of inter-company transfer on personal request. As a result, these appeals must fail. | 0[ds]16. In the present case, there is no dispute that the respondent had rendered service inGrade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority inGrade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL inGrade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service inGrade for promotion toGrade. For determining the eligibility for promotion toGrade, the service rendered by him in DCC inGrade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent inGrade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted fortransfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted fortransfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy fortransfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service inGrade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case oftransfer on personal request. As a result, these appeals must fail. | 0 | 3,910 | 444 | ### 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:
clause 11 deals with the latter. There is no express stipulation in the policy – be it clause 11 or any other official document – to even remotely suggest that on seeking inter-company transfer on personal grounds, the executive concerned would lose even his past service rendered by him in the parent unit (DCC) for all purposes. In absence of such a stipulation, the claim of the respondent could not have been rejected by the department. This proposition is reinforced from the dictum in C.N. Ponnappan (supra), which has been noted with approval in V.M. Joseph (supra). The two-Judge Bench of this Court in C.N. Ponnappan (supra), observed as follows: ?4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.? (emphasis supplied) 15. This view has been restated by another two-Judge Bench of this Court in V.M. Joseph (supra), in paragraph 6 which reads as follows: ?6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Storekeeper on the ground that he had completed 3 years of regular service as Storekeeper on 7-6-1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Storekeeper for the period from 27-4-1971 to 6-6-1977. The appellants contended that, since the respondent had been transferred on compassionate grounds on his own request to the post of Storekeeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Storekeeper. Even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.? (emphasis supplied) 16. In the present case, there is no dispute that the respondent had rendered service in E-2 Grade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority in E-2 Grade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL in E-2 Grade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service in E-2 Grade for promotion to E-3 Grade. For determining the eligibility for promotion to E-3 Grade, the service rendered by him in DCC in E-2 Grade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent in E-3 Grade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted for inter-company transfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted for inter-company transfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy for inter-company transfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service in E-2 Grade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case of inter-company transfer on personal request. As a result, these appeals must fail.
### Response:
0
### Explanation:
16. In the present case, there is no dispute that the respondent had rendered service inGrade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority inGrade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL inGrade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service inGrade for promotion toGrade. For determining the eligibility for promotion toGrade, the service rendered by him in DCC inGrade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent inGrade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted fortransfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted fortransfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy fortransfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service inGrade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case oftransfer on personal request. As a result, these appeals must fail.
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V.KRISHNAMURTHY AND ANR Vs. STATE OF TAMIL NADU AND ORS | Abhay Manohar Sapre, J. 1. These appeals are directed against the final judgment and order dated 11.04.2008 passed by the High Court of Judicature at Madras in W.A. Nos.1030 & 1031 of 1998 whereby the Division Bench of the High Court allowed the appeals filed by the respondent-State and set aside the order dated 19.06.1998 of the Single Judge in W.P. Nos.11058 & 11059/1989. 2. In order to appreciate the controversy involved in these appeals, it is necessary to set out a few relevant facts infra. 3. The appellants herein are the writ petitioners and the respondents herein are the respondents in the writ petitions out of which these appeals arise. 4. The Agricultural Horticultural Society(Society) is the appellant in C.A. No.7704/2009 which is registered under the Tamil Nadu Societies Registration Act, 1975 whereas the appellant in C.A. No.7703 of 2009 is its Secretary. The State of Tamil Nadu- respondent No.1 herein had allotted the land in question to the appellant-Society on certain terms and conditions by agreement dated 28.04.1980. 5. By order dated 05.08.1989 (GO Ms. No.1259), the respondent-State resumed the land in question in terms of clause 4 of the allotment order for public purpose, namely, development of sports facilities without affecting the environment and development of horticulture and horticulture research. 6. The appellant-Society felt aggrieved by the said order and filed two Writ Petitions (Nos.11058 and 11059 of 1989) in the Madras High Court. The challenge to the order was essentially based on the plea of mala fides. The Single Judge of the High Court, by order dated 19.06.1998, allowed the writ petitions and quashed the resumption order dated 05.08.1989. 7. The respondent-State felt aggrieved and filed two writ appeals (Nos.1030 & 1031/1998) before the Division Bench of the High Court. Earlier, the writ appeals were withdrawn but later on they were restored to their files on an application made by the State in that behalf for their disposal according to law. 8. By impugned order, the Division Bench allowed the writ appeals and while setting aside the order passed by the Single Judge dismissed the writ petitions giving rise to filing of these appeals by the writ petitioners in this Court. 9. So, the short question, which arises for consideration in these appeals, is whether the Division Bench was justified in allowing the appeals and, in consequence, was justified in upholding the resumption order dated 05.08.1989 of the respondent- State in relation to the land in question. 10. Heard Mr. Sanjay R. Hegde, learned senior counsel for the appellants and Mr. Balaji Srinivasa, learned AAG for the respondent-State. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. 12. As mentioned above, the appellants (writ petitioners) had impugned the resumption order dated 05.08.1989 essentially on the plea based on mala fides. This plea of mala fides was based on political rivalry. According to the appellants, since they were the members of the opposition party, the party in power at that time issued the impugned resumption order. 13. This plea found favour to the writ court (Single Judge) but the Division Bench reversed the view of the Single Judge and dismissed the writ petitions. In the other words, the Division Bench held that a plea of mala fides raised by the appellants (writ petitioners) to impugn the action was not factually and legally sustainable. 14. In this Court also, the learned counsel for the appellants (writ petitioners) reiterated the same plea of mala fides for assailing the resumption notice dated 05.08.1989 but we find no merit therein for the following reasons: 15. First, admittedly the land in question belongs to the State; Second, clause 4 of the allotment order empowers the State to resume the land either in the event of violation of any of the terms and conditions of the allotment order by the appellant or if it is required for public purpose, the State is entitled to exercise their right of resumption of the land; and Third, the State admittedly exercised the right of resumption of the land for a public purpose. 16. A plea of mala fides, in our view, has no factual and legal foundation to sustain because we find that it is only based on the averment that since the appellant happened to be a member of the opposition party, the party in power at that time had taken the impugned action to resume the land against them. Such averments by itself do not constitute a plea of mala fides without there being any substantial material in its support. In our view, the appellants having failed to point out any legal infirmity in the resumption order except to take the plea based on mala fides, the Division Bench was right in upholding the resumption order as being legal and in conformity with clause 4 of the allotment order. We concur with the view taken by the Division Bench calling for no interference. Needless to observe, the State will ensure that the land in question would only be used for the public purpose and not for other purposes. 17. Learned counsel for the appellants further pointed out from the impugned order that the Division Bench has made some disparaging remarks against them at some places in the impugned order. In our view, those remarks were irrelevant for deciding the short controversy involved in the case. | 0[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals12. As mentioned above, the appellants (writ petitioners) had impugned the resumption order dated 05.08.1989 essentially on the plea based on mala fides. This plea of mala fides was based on political rivalry. According to the appellants, since they were the members of the opposition party, the party in power at that time issued the impugned resumption order13. This plea found favour to the writ court (Single Judge) but the Division Bench reversed the view of the Single Judge and dismissed the writ petitions. In the other words, the Division Bench held that a plea of mala fides raised by the appellants (writ petitioners) to impugn the action was not factually and legally sustainable14. In this Court also, the learned counsel for the appellants (writ petitioners) reiterated the same plea of mala fides for assailing the resumption notice dated 05.08.1989 but we find no merit therein for the following reasons:15. First, admittedly the land in question belongs to the State; Second, clause 4 of the allotment order empowers the State to resume the land either in the event of violation of any of the terms and conditions of the allotment order by the appellant or if it is required for public purpose, the State is entitled to exercise their right of resumption of the land; and Third, the State admittedly exercised the right of resumption of the land for a public purpose16. A plea of mala fides, in our view, has no factual and legal foundation to sustain because we find that it is only based on the averment that since the appellant happened to be a member of the opposition party, the party in power at that time had taken the impugned action to resume the land against them. Such averments by itself do not constitute a plea of mala fides without there being any substantial material in its support. In our view, the appellants having failed to point out any legal infirmity in the resumption order except to take the plea based on mala fides, the Division Bench was right in upholding the resumption order as being legal and in conformity with clause 4 of the allotment order. We concur with the view taken by the Division Bench calling for no interference. Needless to observe, the State will ensure that the land in question would only be used for the public purpose and not for other purposes17. Learned counsel for the appellants further pointed out from the impugned order that the Division Bench has made some disparaging remarks against them at some places in the impugned order. In our view, those remarks were irrelevant for deciding the short controversy involved in the case. | 0 | 1,011 | 516 | ### 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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Abhay Manohar Sapre, J. 1. These appeals are directed against the final judgment and order dated 11.04.2008 passed by the High Court of Judicature at Madras in W.A. Nos.1030 & 1031 of 1998 whereby the Division Bench of the High Court allowed the appeals filed by the respondent-State and set aside the order dated 19.06.1998 of the Single Judge in W.P. Nos.11058 & 11059/1989. 2. In order to appreciate the controversy involved in these appeals, it is necessary to set out a few relevant facts infra. 3. The appellants herein are the writ petitioners and the respondents herein are the respondents in the writ petitions out of which these appeals arise. 4. The Agricultural Horticultural Society(Society) is the appellant in C.A. No.7704/2009 which is registered under the Tamil Nadu Societies Registration Act, 1975 whereas the appellant in C.A. No.7703 of 2009 is its Secretary. The State of Tamil Nadu- respondent No.1 herein had allotted the land in question to the appellant-Society on certain terms and conditions by agreement dated 28.04.1980. 5. By order dated 05.08.1989 (GO Ms. No.1259), the respondent-State resumed the land in question in terms of clause 4 of the allotment order for public purpose, namely, development of sports facilities without affecting the environment and development of horticulture and horticulture research. 6. The appellant-Society felt aggrieved by the said order and filed two Writ Petitions (Nos.11058 and 11059 of 1989) in the Madras High Court. The challenge to the order was essentially based on the plea of mala fides. The Single Judge of the High Court, by order dated 19.06.1998, allowed the writ petitions and quashed the resumption order dated 05.08.1989. 7. The respondent-State felt aggrieved and filed two writ appeals (Nos.1030 & 1031/1998) before the Division Bench of the High Court. Earlier, the writ appeals were withdrawn but later on they were restored to their files on an application made by the State in that behalf for their disposal according to law. 8. By impugned order, the Division Bench allowed the writ appeals and while setting aside the order passed by the Single Judge dismissed the writ petitions giving rise to filing of these appeals by the writ petitioners in this Court. 9. So, the short question, which arises for consideration in these appeals, is whether the Division Bench was justified in allowing the appeals and, in consequence, was justified in upholding the resumption order dated 05.08.1989 of the respondent- State in relation to the land in question. 10. Heard Mr. Sanjay R. Hegde, learned senior counsel for the appellants and Mr. Balaji Srinivasa, learned AAG for the respondent-State. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. 12. As mentioned above, the appellants (writ petitioners) had impugned the resumption order dated 05.08.1989 essentially on the plea based on mala fides. This plea of mala fides was based on political rivalry. According to the appellants, since they were the members of the opposition party, the party in power at that time issued the impugned resumption order. 13. This plea found favour to the writ court (Single Judge) but the Division Bench reversed the view of the Single Judge and dismissed the writ petitions. In the other words, the Division Bench held that a plea of mala fides raised by the appellants (writ petitioners) to impugn the action was not factually and legally sustainable. 14. In this Court also, the learned counsel for the appellants (writ petitioners) reiterated the same plea of mala fides for assailing the resumption notice dated 05.08.1989 but we find no merit therein for the following reasons: 15. First, admittedly the land in question belongs to the State; Second, clause 4 of the allotment order empowers the State to resume the land either in the event of violation of any of the terms and conditions of the allotment order by the appellant or if it is required for public purpose, the State is entitled to exercise their right of resumption of the land; and Third, the State admittedly exercised the right of resumption of the land for a public purpose. 16. A plea of mala fides, in our view, has no factual and legal foundation to sustain because we find that it is only based on the averment that since the appellant happened to be a member of the opposition party, the party in power at that time had taken the impugned action to resume the land against them. Such averments by itself do not constitute a plea of mala fides without there being any substantial material in its support. In our view, the appellants having failed to point out any legal infirmity in the resumption order except to take the plea based on mala fides, the Division Bench was right in upholding the resumption order as being legal and in conformity with clause 4 of the allotment order. We concur with the view taken by the Division Bench calling for no interference. Needless to observe, the State will ensure that the land in question would only be used for the public purpose and not for other purposes. 17. Learned counsel for the appellants further pointed out from the impugned order that the Division Bench has made some disparaging remarks against them at some places in the impugned order. In our view, those remarks were irrelevant for deciding the short controversy involved in the case.
### Response:
0
### Explanation:
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals12. As mentioned above, the appellants (writ petitioners) had impugned the resumption order dated 05.08.1989 essentially on the plea based on mala fides. This plea of mala fides was based on political rivalry. According to the appellants, since they were the members of the opposition party, the party in power at that time issued the impugned resumption order13. This plea found favour to the writ court (Single Judge) but the Division Bench reversed the view of the Single Judge and dismissed the writ petitions. In the other words, the Division Bench held that a plea of mala fides raised by the appellants (writ petitioners) to impugn the action was not factually and legally sustainable14. In this Court also, the learned counsel for the appellants (writ petitioners) reiterated the same plea of mala fides for assailing the resumption notice dated 05.08.1989 but we find no merit therein for the following reasons:15. First, admittedly the land in question belongs to the State; Second, clause 4 of the allotment order empowers the State to resume the land either in the event of violation of any of the terms and conditions of the allotment order by the appellant or if it is required for public purpose, the State is entitled to exercise their right of resumption of the land; and Third, the State admittedly exercised the right of resumption of the land for a public purpose16. A plea of mala fides, in our view, has no factual and legal foundation to sustain because we find that it is only based on the averment that since the appellant happened to be a member of the opposition party, the party in power at that time had taken the impugned action to resume the land against them. Such averments by itself do not constitute a plea of mala fides without there being any substantial material in its support. In our view, the appellants having failed to point out any legal infirmity in the resumption order except to take the plea based on mala fides, the Division Bench was right in upholding the resumption order as being legal and in conformity with clause 4 of the allotment order. We concur with the view taken by the Division Bench calling for no interference. Needless to observe, the State will ensure that the land in question would only be used for the public purpose and not for other purposes17. Learned counsel for the appellants further pointed out from the impugned order that the Division Bench has made some disparaging remarks against them at some places in the impugned order. In our view, those remarks were irrelevant for deciding the short controversy involved in the case.
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Aban Loyd Chiles Offshore Ltd. Vs. U.O.I. | etc. By the said Act, customs and other fiscal enactments have been extended. Therefore, the object is very clear that the revenue generated from exploration and exploitation should accrue to the coastal State viz. India. As stated above, the area of exclusive economic zone/continental shelf, where the oil rigs are stationed (which of course is outside territorial waters) is deemed to be a part of the territory of India under the Central Government notifications issued pursuant to the provisions of the Maritime Zones Act, 1976. The supply of imported spares or goods or equipments to the rigs by a ship will attract import duty and the ship employed for transshipment of the goods for that purpose would not be a foreign going vessel under Section 2(21) of the Customs Act. The area of discharge or unloading/loading is within India by virtue of the deeming provisions of Sections 6 and 7 of the Maritime Zones Act, 1976. The Customs Act stands extended to the designated areas by virtue of the Maritime Zones Act, 1976. The oil rigs carrying on operations in the designated area is not a foreign going vessel as the same would be deemed to be a part of Indian territory i.e. going from the territory of India to an area which also deemed to be part of the territory of India. 86. As stated above, contiguous zone is that part of the sea which is beyond and adjacent to the territorial waters of the coastal States. The coastal States though do not exercise sovereignty over this part of the sea, however, they are entitled to exercise sovereign rights and take appropriate steps to protect its revenue and like matters. The police and revenue jurisdiction of the coastal States is extended to the contiguous zone as well. 87. The question whether the Courts can look into the provisions of the international treaties/conventions is no longer res integra. This Court in Gramophone Company of India Ltd. v. Birendra Bahadur case [(1984) 2 SCC 534] has held that even in the absence of municipal law, the treaties/conventions can be looked into and enforced if they are not in conflict with the municipal law. It was further held that the same may not be looked into but can also be used to interpret municipal laws so as to bring them in consonance with international law. 88. However, in the event where they do not run into such conflict, the sovereignty and the integrity of the republic and the supremacy of the constituted legislatures in making the laws may not be subject to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The Court held as under: - “The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law. National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within legitimate limits, to so interpret the Municipal Statute as to avoid confrontation with the comity of Nations or the well established principles of International law. But if conflict is inevitable, the latter must yield.” 89. In Vishaka & others v. State of Rajasthan & others [(1997) 6 SCC 241] , this Court considered the question as to what would be the position in law if there was no law for effective enforcement. It was held as under: - “The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them.” 90. Our municipal law, i.e., Maritime Zones Act, 1976 is not in conflict with the international law, rather the same is in consonance with UNCLOS, 1982. 91. Article 127 of UNCLOS, 1982 deals with customs duties, taxes and other charges. Clause (1) provides that traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic and Clause (2) provides that means of transport in transit and other facilities provided for and used by the land locked States shall not subject to taxes or charges higher than those levied for the use of means of transport of the transit State. According to this Article, where the goods are in transit to other country shall not be subject to any customs duties, taxes or other charges except for the charges levied for specific services in connection with such traffic. In other words, there is no prohibition for levying customs duties on the goods which are not in transit for onward transmission to any other country. If the goods are brought in only while proceeding to other country, then no customs duty can be levied. In all other cases, it seems to be permissible. 92. In the present case, as the goods were being taken to a territory which would be deemed to be a part of the territory of India though the goods have left the territorial waters, the same would be exigible to levy of duty when they are taken and consumed within the deemed territory of India. There would be no customs duty or any other duty levied while the goods are in transit to the deemed territory of India by any other country although they have gone out of the territorial waters of India. | 0[ds]69. In exercise of the powers vested in the Central Government under sub-section (6) of Section 6 and sub-section (7) of Section 7 of theMaritime Zones Act,1976, the Government extended the Customs Act, 1962 and the Customs Tariff Act, 1976 to the designated areas of the continental shelf and the exclusive economic zone by notification published in the Official Gazette referred to and reproduced in paragraphs 30 to 33.Pursuant to such recognition of the territorial limit in the Comity of Nations, the coastal State has the power to legislate or take such appropriate measures to exercise its sovereign power over that territorial limit.Maritime Zones Act,1976 was enacted pursuant to such recognition, declaring designated area in the continental shelf/exclusive economic zone and extending the Customs Act to such areas. The notifications referred to in the foregoing paragraphs were issued pursuant to such recognition and the Customs Act and the Customs Tariff Act were extended to the designated area of the continental shelf, exclusive economic zone. There is no challenge to theMaritime Zones Act,1976, the various notifications issued declaring designated area as well as extending the Customs Act as being ultra vires or that its provisions are contrary to the provisions of other enactments. The coastal State hasbut it has only sovereign rights over the continental shelf and the exclusive economic zone. The Customs Act extends to the whole of India and not simply tothe territorial waters ofIndia. Customs Act does not contain any provision permitting determination of the maritime limits. For this purpose, one has to revert to theMaritime Zones Act,1976. Hence, reference to theMaritime Zones Act,1976 is inevitable while considering any issue relating to maritime issues.We do not find any ambiguity in this situation. The interpretation given by the High Court in Pridecase (supra) would not result in any absurd situation as contended by the Counsel for the Appellant. The Appellants wants the Court to read Section 2(21) of the Customs Act in isolation, which would not be the correct approach. The Customs Act has to be read along with the provisions of theWe agree with the views expressed by the Bombay High Court in Pridecase (supra) that in Amership Management case (supra), the High Court of Bombay was concerned with the limited question as to whether the oil rigs are vessels and if so avessel in the light of the controversy raised in that Judgment. In Amership Management case (supra), the High Court after relying on the International Load Lines Convention, 1966 and Central Government Notifications and upon the load lines certificates, held for the purposes of the Customs Act, the expressionis of the widest amplitude and must be construed to include. It was held that since the oil rigs are stationed beyond the territorial waters, supply of importedto the oil rigs stationed outside the territorial waters would qualify for exemption from duty under Section 86 without being required to be warehoused. The question with respect to the applicability of Sections 6 and 7 of theMaritime Zones Act,1976 together with the notifications issued pursuant thereto were not considered at all.In the present case, as the goods were being taken to a territory which would be deemed to be a part of the territory of India though the goods have left the territorial waters, the same would be exigible to levy of duty when they are taken and consumed within the deemed territory of India. There would be no customs duty or any other duty levied while the goods are in transit to the deemed territory of India by any other country although they have gone out ofthe territorial waters of | 0 | 17,506 | 653 | ### Instruction:
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etc. By the said Act, customs and other fiscal enactments have been extended. Therefore, the object is very clear that the revenue generated from exploration and exploitation should accrue to the coastal State viz. India. As stated above, the area of exclusive economic zone/continental shelf, where the oil rigs are stationed (which of course is outside territorial waters) is deemed to be a part of the territory of India under the Central Government notifications issued pursuant to the provisions of the Maritime Zones Act, 1976. The supply of imported spares or goods or equipments to the rigs by a ship will attract import duty and the ship employed for transshipment of the goods for that purpose would not be a foreign going vessel under Section 2(21) of the Customs Act. The area of discharge or unloading/loading is within India by virtue of the deeming provisions of Sections 6 and 7 of the Maritime Zones Act, 1976. The Customs Act stands extended to the designated areas by virtue of the Maritime Zones Act, 1976. The oil rigs carrying on operations in the designated area is not a foreign going vessel as the same would be deemed to be a part of Indian territory i.e. going from the territory of India to an area which also deemed to be part of the territory of India. 86. As stated above, contiguous zone is that part of the sea which is beyond and adjacent to the territorial waters of the coastal States. The coastal States though do not exercise sovereignty over this part of the sea, however, they are entitled to exercise sovereign rights and take appropriate steps to protect its revenue and like matters. The police and revenue jurisdiction of the coastal States is extended to the contiguous zone as well. 87. The question whether the Courts can look into the provisions of the international treaties/conventions is no longer res integra. This Court in Gramophone Company of India Ltd. v. Birendra Bahadur case [(1984) 2 SCC 534] has held that even in the absence of municipal law, the treaties/conventions can be looked into and enforced if they are not in conflict with the municipal law. It was further held that the same may not be looked into but can also be used to interpret municipal laws so as to bring them in consonance with international law. 88. However, in the event where they do not run into such conflict, the sovereignty and the integrity of the republic and the supremacy of the constituted legislatures in making the laws may not be subject to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The Court held as under: - “The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law. National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within legitimate limits, to so interpret the Municipal Statute as to avoid confrontation with the comity of Nations or the well established principles of International law. But if conflict is inevitable, the latter must yield.” 89. In Vishaka & others v. State of Rajasthan & others [(1997) 6 SCC 241] , this Court considered the question as to what would be the position in law if there was no law for effective enforcement. It was held as under: - “The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them.” 90. Our municipal law, i.e., Maritime Zones Act, 1976 is not in conflict with the international law, rather the same is in consonance with UNCLOS, 1982. 91. Article 127 of UNCLOS, 1982 deals with customs duties, taxes and other charges. Clause (1) provides that traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic and Clause (2) provides that means of transport in transit and other facilities provided for and used by the land locked States shall not subject to taxes or charges higher than those levied for the use of means of transport of the transit State. According to this Article, where the goods are in transit to other country shall not be subject to any customs duties, taxes or other charges except for the charges levied for specific services in connection with such traffic. In other words, there is no prohibition for levying customs duties on the goods which are not in transit for onward transmission to any other country. If the goods are brought in only while proceeding to other country, then no customs duty can be levied. In all other cases, it seems to be permissible. 92. In the present case, as the goods were being taken to a territory which would be deemed to be a part of the territory of India though the goods have left the territorial waters, the same would be exigible to levy of duty when they are taken and consumed within the deemed territory of India. There would be no customs duty or any other duty levied while the goods are in transit to the deemed territory of India by any other country although they have gone out of the territorial waters of India.
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69. In exercise of the powers vested in the Central Government under sub-section (6) of Section 6 and sub-section (7) of Section 7 of theMaritime Zones Act,1976, the Government extended the Customs Act, 1962 and the Customs Tariff Act, 1976 to the designated areas of the continental shelf and the exclusive economic zone by notification published in the Official Gazette referred to and reproduced in paragraphs 30 to 33.Pursuant to such recognition of the territorial limit in the Comity of Nations, the coastal State has the power to legislate or take such appropriate measures to exercise its sovereign power over that territorial limit.Maritime Zones Act,1976 was enacted pursuant to such recognition, declaring designated area in the continental shelf/exclusive economic zone and extending the Customs Act to such areas. The notifications referred to in the foregoing paragraphs were issued pursuant to such recognition and the Customs Act and the Customs Tariff Act were extended to the designated area of the continental shelf, exclusive economic zone. There is no challenge to theMaritime Zones Act,1976, the various notifications issued declaring designated area as well as extending the Customs Act as being ultra vires or that its provisions are contrary to the provisions of other enactments. The coastal State hasbut it has only sovereign rights over the continental shelf and the exclusive economic zone. The Customs Act extends to the whole of India and not simply tothe territorial waters ofIndia. Customs Act does not contain any provision permitting determination of the maritime limits. For this purpose, one has to revert to theMaritime Zones Act,1976. Hence, reference to theMaritime Zones Act,1976 is inevitable while considering any issue relating to maritime issues.We do not find any ambiguity in this situation. The interpretation given by the High Court in Pridecase (supra) would not result in any absurd situation as contended by the Counsel for the Appellant. The Appellants wants the Court to read Section 2(21) of the Customs Act in isolation, which would not be the correct approach. The Customs Act has to be read along with the provisions of theWe agree with the views expressed by the Bombay High Court in Pridecase (supra) that in Amership Management case (supra), the High Court of Bombay was concerned with the limited question as to whether the oil rigs are vessels and if so avessel in the light of the controversy raised in that Judgment. In Amership Management case (supra), the High Court after relying on the International Load Lines Convention, 1966 and Central Government Notifications and upon the load lines certificates, held for the purposes of the Customs Act, the expressionis of the widest amplitude and must be construed to include. It was held that since the oil rigs are stationed beyond the territorial waters, supply of importedto the oil rigs stationed outside the territorial waters would qualify for exemption from duty under Section 86 without being required to be warehoused. The question with respect to the applicability of Sections 6 and 7 of theMaritime Zones Act,1976 together with the notifications issued pursuant thereto were not considered at all.In the present case, as the goods were being taken to a territory which would be deemed to be a part of the territory of India though the goods have left the territorial waters, the same would be exigible to levy of duty when they are taken and consumed within the deemed territory of India. There would be no customs duty or any other duty levied while the goods are in transit to the deemed territory of India by any other country although they have gone out ofthe territorial waters of
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Union of India and Others Vs. Gopal Das Gupta. (And Another Appeal) | section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 are revealed. Mr. Pal made an earnest endeavour to impress on us that in the provision of section 143 itself, there is scope for what Mr. Pal calls enquiries by calling for documents and examining witnesses but the word "enquiry" is not occurring in section 143 at all while section 142 expressly makes it the heading of that section. Not only so, the heading is "enquiry before assessment". Therefore, the proceeding, i.e., enquiry under section 142 is an earlier stage of the proceeding, that is, the proceeding of assessment provided for in section 143, and no part of section 143 can be, in our view, brought within the words "enquiry under the Act", though Mr. Pal was emphasising "during assessment" which is a proceeding under the Act. The Income-tax Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on the Income-tax Officers under the Act, which means the powers which the Income-tax Act, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of the Income-tax Act, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of the Income-tax Act. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in their affidavit-in- opposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known | 0[ds]3. The learned trial judge, K. L. Roy J., accepted the contentions advanced for the petitioners before him that the claim of the Department that the officer was authorised under the provisions of section 135 to exercise all the powers of theOfficer under section 131 should be rejected mainly on the reason of the particular language that appears in the two sections and also for the reason that was advanced before him by pointing out that in 1965, section 131 was amended by adding "Inspecting Assistant Commissioner ofwhich amendment, according to the contentions of the petitioners, would be unnecessary if the meaning attributed to section 135 by the Department were correct because in that section 135, "Inspecting Assistant Commissioner" has been mentioned. To strengthen that contention the learned counsel for the petitioners before the learned trial judge referred to the Finance Bill, 1965, and the Statement of Objects and Reasons in respect of clause 38 therein which subsequently was enacted as section 38 of the Finance Act, 1965, effecting the aforesaid amendment in section 131. By relying on that Statement of Objects and Reasons, it was contended that the Legislature interpreted section 131 before its amendment as authorizing only the three officers mentioned therein, namely theOfficer, the Appellate Assistant Commissioner and the Commissioner, to exercise the powers mentioned in that section. The amendment to enlarge the number of officers so authorised by that section 131 was therefore felt necessaryObjection was taken on behalf of the Department about the propriety of referring to the Objects and reasons because it was contended on the behalf that the words of section 135 are absolutely plain and free from any ambiguity. To justify reference to and reliance on the Objects and Reasons above mentioned, reliance was placed on two decisions of the Supreme Court, one in the case of CIT v. Vasantsen Dwarkadas [1963] 49 ITR (SC) 1 at p.do not feel the necessity of going into the detailed facts of the cases cited by the learned counsel except that we may at once point out that the decision of the Supreme Court, turning on section 297(g) of theAct, was in a case in which the provision that was held to be per se unnecessary but added by way of abundant caution was not a provision of legislative enactment by Parliament but was by an order made by the Executive Government on the authority of a section in the statute. That distinction has to be kept in mind for considering the matter of the loud fact that an amendment of section 13 of theAct has been carried out by Parliament in 1965 by adding the Inspecting Assistant Commissioner, although that officer would have power conferred by section 131 of the Act by dint of the provisions in section 135 if the interpretation sought to be put by Mr. pal for the Department is to be accepted.8. This fact of amendment by the Legislature without drawing any assistance from the Statement of Objects and Reasons appearing in the Bill is reason enough in our view to enable us to accept the contention raised on behalf of the respondents before us and to reject the contentions raised on behalf of the Department regarding the interpretationApart from that we need only point out that the provision in the present section 131 had existed in the old Act of 1922 in the provision of section 37 of that Act. The provision in section 135 in the present Act was existing as a part of the old section 57B of the Act of 1922. The present section 142 was existing as(4) of section 22 of the repealed Act of 1922 and section 143 of the present Act has its predecessor in the old section 23 of the Act of 1922. While that history of the different sections in the present Act of 1961 has been delineated before us by Mr. Pal for the appellants, we cannot omit to notice that there are a little additions or a little omissions here and there between the language of the corresponding provisions of the present and the old Acts in these respects. Not much turns on that but what in our view is important to be considered is the language which appears in the relevant section of the present Act. First, we take up the important phrases of the two sections 131 and 135. While section 135 says that the "Inspecting Assistant Commissioner shall be competent to make an enquiry under this Act and for this purpose shall have all the powers that anOfficer has under this Act in relation to the making of enquiries", section 131 provides that the Officers mentioned therein "shall for the purpose of this Act have the same powers as are vested in the court under the Code of Civil Procedure, 1908, when trying a suit in respect of matters delineated in the section". Giving our full consideration to the particularity of the language, it appears to us that Parliament has made a distinction between the powers that have been conferred directly by this statute, that is, theAct, 1961, mentioned in section 135 and the powers which have been made available by drawing from the sources in another statute, i.e., "the powers as are vested in the court under the Code of Civil Procedure", and that is why the insertion of "Inspection Assistant Commissioner" in section 131 by amendment in 1965 was felt necessary although that category of officer has been mentioned in section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 arex Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on theOfficers under the Act, which means the powers which theAct, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of theAct, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of theAct. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in theiropposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known | 0 | 4,671 | 1,918 | ### Instruction:
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section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 are revealed. Mr. Pal made an earnest endeavour to impress on us that in the provision of section 143 itself, there is scope for what Mr. Pal calls enquiries by calling for documents and examining witnesses but the word "enquiry" is not occurring in section 143 at all while section 142 expressly makes it the heading of that section. Not only so, the heading is "enquiry before assessment". Therefore, the proceeding, i.e., enquiry under section 142 is an earlier stage of the proceeding, that is, the proceeding of assessment provided for in section 143, and no part of section 143 can be, in our view, brought within the words "enquiry under the Act", though Mr. Pal was emphasising "during assessment" which is a proceeding under the Act. The Income-tax Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on the Income-tax Officers under the Act, which means the powers which the Income-tax Act, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of the Income-tax Act, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of the Income-tax Act. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in their affidavit-in- opposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known
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Officers mentioned therein "shall for the purpose of this Act have the same powers as are vested in the court under the Code of Civil Procedure, 1908, when trying a suit in respect of matters delineated in the section". Giving our full consideration to the particularity of the language, it appears to us that Parliament has made a distinction between the powers that have been conferred directly by this statute, that is, theAct, 1961, mentioned in section 135 and the powers which have been made available by drawing from the sources in another statute, i.e., "the powers as are vested in the court under the Code of Civil Procedure", and that is why the insertion of "Inspection Assistant Commissioner" in section 131 by amendment in 1965 was felt necessary although that category of officer has been mentioned in section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 arex Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on theOfficers under the Act, which means the powers which theAct, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of theAct, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of theAct. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in theiropposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known
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Superintendent Of Police, Ludhiana & Anr Vs. Dwarka Das Etc | the Rules. No attempt has been made to distinguish one case from the others on facts. On the other hand learned counsel for the parties are in agreement that the facts of the three cases are quite similar and they raise the common question of law whether the orders of discharge were valid. The respondents challenged the validity of those orders by writ petitions which were allowed by the impugned judgments of the High Court and the three appeals are before us for that reason. 3. It has been argued by Mr Harbans Singh, on behalf of the appellant State, that even though the respondents had put in more than three years service as police-officers of the State Government, their appointments were temporary and could be terminated for that reason even if the termination could not strictly be said to fall within the purview of rule 12.21 of the Rules. that in fact is the only question II for consideration in these appeals and can easily be answered with reference to the provisions of the Police Act, 1861, hereinafter refer red to as the Act, and the Rules.Section 1 of the Act defines "Police" to include all persons who A shall be enrolled under it. Section 2 provides that the entire police establishment under the State Government shall be deemed to be one police-force, and shall be formally enrolled. It further provides that the conditions of service of the members of the subordinate ranks of the police-force shall be such as may be determined by the State Government. Section 8 is also relevant, for it expressly provides that every police-officer appointed to the police-force of the State (other than an officer mentioned in section 4), shall receive on his appointment a certificate in the form annexed to the Act, by virtue of which he shall be vested with the powers, functions and privileges of a police-officer. The certificate states that the police-officer concerned has been appointed a member of the police-force under the Act, and vested with the powers. functions and privileges of a police-officer. The certificate is not therefore the order of appointment or enrolment, but is subsequent to the appointment and the enrolment, even though it is a part of the process of appointment and enrolment, in as much as it certifies that the police-officer has been vested with the necessary powers, functions and privileges of a police-officer. The certificate does not however have any bearing on the question whether its holder is a permanent or a temporary police-officer, for that is a matter which has to be governed by the other conditions of his service. It is not in dispute before us that such certificates were issued to all the three respondents and that they functioned as police-officers for more than three years. Chapter XII of the Rules deals with the appointment and enrolment of police-officers. Clause (3) of rule 12.2. provides, inter alia, as follows, -"(3) All appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank." 4. It is therefore obvious that as the respondents were enrolled police officers, they were on probation. The period of probation has not been specified in the Rules, but rule 12.21 provides for the discharge of an inefficient police-officer as follows-"12.21. A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule." 5. So if rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of 3 police-officer of the rank of constable is three, years, for the Superintendent OF Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under rule 12.21 after the expiry of the period of three years. If therefore it is proposed to deal with an inefficient police-officer after the expiry of that period, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police-force. It is not permissible to ignore those rules and make a simple order of discharge under rule 12.21 after the expiry of the period of three years for that will attract article 311 of the Constitution. The Superintendent of Police concerned could not have ignored that requirement of the law and terminated the services of the three respondents after the expiry of the period of three years from their enrolment in the police-force of the State. 6. The High Court therefore rightly set aside the orders of termination of the services of the three respondents and to that extent the impugned judgments are correct. But we are constrained to say that it was not justified in holding that "a constable who has obtained a certificate under rule 12.22 cannot be dealt with under rule 12.21", and that "if he is to be removed from service, procedure prescribed in Chapter XVI has to be followed." The reason is that, as has been shown, the certificate prescribed under rule 12.22 is meant to serve the purpose o f section 8 of the Act by vesting a police-officer with the powers, functions and privileges of a police-officer, and has to be issued on his appointment as such. The certificate is thus a letter of authority, and enables the police-officer concerned to enter upon his duties as a police-officer. It has to be granted almost from the inception, when a person is appointed and enrolled as police-officer, and it is not correct to say that the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police-officer and has not completed the period of three years after his enrolment. | 0[ds]So if rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of 3 police-officer of the rank of constable is three, years, for the Superintendent OF Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under rule 12.21 after the expiry of the period of three years. If therefore it is proposed to deal with an inefficient police-officer after the expiry of that period, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police-force. It is not permissible to ignore those rules and make a simple order of discharge under rule 12.21 after the expiry of the period of three years for that will attract article 311 of the Constitution. The Superintendent of Police concerned could not have ignored that requirement of the law and terminated the services of the three respondents after the expiry of the period of three years from their enrolment in the police-force of the StateThe High Court therefore rightly set aside the orders of termination of the services of the three respondents and to that extent the impugned judgments are correct. But we are constrained to say that it was not justified in holding that "a constable who has obtained a certificate under rule 12.22 cannot be dealt with under rule 12.21", and that "if he is to be removed from service, procedure prescribed in Chapter XVI has to be followed." The reason is that, as has been shown, the certificate prescribed under rule 12.22 is meant to serve the purpose o f section 8 of the Act by vesting a police-officer with the powers, functions and privileges of a police-officer, and has to be issued on his appointment as such. The certificate is thus a letter of authority, and enables the police-officer concerned to enter upon his duties as a police-officer. It has to be granted almost from the inception, when a person is appointed and enrolled as police-officer, and it is not correct to say that the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police-officer and has not completed the period of three years after his enrolment. | 0 | 1,337 | 442 | ### 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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the Rules. No attempt has been made to distinguish one case from the others on facts. On the other hand learned counsel for the parties are in agreement that the facts of the three cases are quite similar and they raise the common question of law whether the orders of discharge were valid. The respondents challenged the validity of those orders by writ petitions which were allowed by the impugned judgments of the High Court and the three appeals are before us for that reason. 3. It has been argued by Mr Harbans Singh, on behalf of the appellant State, that even though the respondents had put in more than three years service as police-officers of the State Government, their appointments were temporary and could be terminated for that reason even if the termination could not strictly be said to fall within the purview of rule 12.21 of the Rules. that in fact is the only question II for consideration in these appeals and can easily be answered with reference to the provisions of the Police Act, 1861, hereinafter refer red to as the Act, and the Rules.Section 1 of the Act defines "Police" to include all persons who A shall be enrolled under it. Section 2 provides that the entire police establishment under the State Government shall be deemed to be one police-force, and shall be formally enrolled. It further provides that the conditions of service of the members of the subordinate ranks of the police-force shall be such as may be determined by the State Government. Section 8 is also relevant, for it expressly provides that every police-officer appointed to the police-force of the State (other than an officer mentioned in section 4), shall receive on his appointment a certificate in the form annexed to the Act, by virtue of which he shall be vested with the powers, functions and privileges of a police-officer. The certificate states that the police-officer concerned has been appointed a member of the police-force under the Act, and vested with the powers. functions and privileges of a police-officer. The certificate is not therefore the order of appointment or enrolment, but is subsequent to the appointment and the enrolment, even though it is a part of the process of appointment and enrolment, in as much as it certifies that the police-officer has been vested with the necessary powers, functions and privileges of a police-officer. The certificate does not however have any bearing on the question whether its holder is a permanent or a temporary police-officer, for that is a matter which has to be governed by the other conditions of his service. It is not in dispute before us that such certificates were issued to all the three respondents and that they functioned as police-officers for more than three years. Chapter XII of the Rules deals with the appointment and enrolment of police-officers. Clause (3) of rule 12.2. provides, inter alia, as follows, -"(3) All appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank." 4. It is therefore obvious that as the respondents were enrolled police officers, they were on probation. The period of probation has not been specified in the Rules, but rule 12.21 provides for the discharge of an inefficient police-officer as follows-"12.21. A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule." 5. So if rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of 3 police-officer of the rank of constable is three, years, for the Superintendent OF Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under rule 12.21 after the expiry of the period of three years. If therefore it is proposed to deal with an inefficient police-officer after the expiry of that period, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police-force. It is not permissible to ignore those rules and make a simple order of discharge under rule 12.21 after the expiry of the period of three years for that will attract article 311 of the Constitution. The Superintendent of Police concerned could not have ignored that requirement of the law and terminated the services of the three respondents after the expiry of the period of three years from their enrolment in the police-force of the State. 6. The High Court therefore rightly set aside the orders of termination of the services of the three respondents and to that extent the impugned judgments are correct. But we are constrained to say that it was not justified in holding that "a constable who has obtained a certificate under rule 12.22 cannot be dealt with under rule 12.21", and that "if he is to be removed from service, procedure prescribed in Chapter XVI has to be followed." The reason is that, as has been shown, the certificate prescribed under rule 12.22 is meant to serve the purpose o f section 8 of the Act by vesting a police-officer with the powers, functions and privileges of a police-officer, and has to be issued on his appointment as such. The certificate is thus a letter of authority, and enables the police-officer concerned to enter upon his duties as a police-officer. It has to be granted almost from the inception, when a person is appointed and enrolled as police-officer, and it is not correct to say that the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police-officer and has not completed the period of three years after his enrolment.
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So if rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of 3 police-officer of the rank of constable is three, years, for the Superintendent OF Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under rule 12.21 after the expiry of the period of three years. If therefore it is proposed to deal with an inefficient police-officer after the expiry of that period, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police-force. It is not permissible to ignore those rules and make a simple order of discharge under rule 12.21 after the expiry of the period of three years for that will attract article 311 of the Constitution. The Superintendent of Police concerned could not have ignored that requirement of the law and terminated the services of the three respondents after the expiry of the period of three years from their enrolment in the police-force of the StateThe High Court therefore rightly set aside the orders of termination of the services of the three respondents and to that extent the impugned judgments are correct. But we are constrained to say that it was not justified in holding that "a constable who has obtained a certificate under rule 12.22 cannot be dealt with under rule 12.21", and that "if he is to be removed from service, procedure prescribed in Chapter XVI has to be followed." The reason is that, as has been shown, the certificate prescribed under rule 12.22 is meant to serve the purpose o f section 8 of the Act by vesting a police-officer with the powers, functions and privileges of a police-officer, and has to be issued on his appointment as such. The certificate is thus a letter of authority, and enables the police-officer concerned to enter upon his duties as a police-officer. It has to be granted almost from the inception, when a person is appointed and enrolled as police-officer, and it is not correct to say that the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police-officer and has not completed the period of three years after his enrolment.
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Tax Recovery Officer, Central Range-1 Vs. Custodian the Special Court (T.O.R.T.S) Act, 1992 & Others | or both of the notified party stood attached simultaneously with the issue of the notification under sub-section (2) of Section 3 of the Special Courts Act. Thus the attached property also became property of the notified party. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party under sub-section (2) of Section 3 of the Special Courts Act. The money realized by the auction sale of the property of M/s. Killick Nixon Pvt. Ltd. in the execution proceedings initiated after decrees had been passed in favour of M/s. Dhanraj Mills Pvt. Ltd. was the property of the notified party, viz., M/s. Dhanraj Mills Pvt. Ltd. and as such the Income Tax Department could not claim any right under Section 226(4) of the Income-tax Act to recover its income tax dues from M/s. Killick Nixon Pvt. Ltd. out of the money so realized. Learned counsel has further submitted that Section 11 of the Special Courts Act lays down the manner in which the liabilities of the notified party has to be discharged and under clause (a) of sub-section (2) thereof all taxes due from the notified party to the Government have to be discharged first. Learned counsel has also submitted that in view of Section 13, the Special Courts Act shall have an overriding effect over the provisions of the Income-tax Act. Learned counsel has referred to the decision of this Court in Solidaire India Ltd. vs. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71 , wherein it was observed as under at page 74 of the reports: - “Under Section 3 of the 1992 Act, all property of notified persons is to stand attached. Under Section 3(4), it is only the Special Court which can give directions to the Custodian in respect of property of the notified party. Similarly, under Section 11(1), the Special Court can give directions regarding property of a notified party. Under Section 11(2), the Special Court is to distribute the assets of the notified party in the manner set out thereunder. Monies payable to the notified parties are assets of the notified party and are, therefore, assets which stand attached. These are assets which have to be collected by the Special Court for the purposes of distribution under Section 11(2). The distribution can only take place provided the assets are first collected. The whole aim of these provisions is to ensure that monies which are siphoned off from banks and financial institutions into private pockets are returned to the banks and financial institutions. The time and manner of distribution is to be decided by the Special Court only..........” 7. The language employed in Section 13 of the Special Courts Act is clear and explicit when it says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 also contains a similar clause that the provisions of the said Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. In Solidair India Ltd. (supra) the provisions of Section 13 of the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 and Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 were examined and it was held that both these Acts are special Acts and in such an event it is the later Act, namely, the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 which must prevail. Thus there can be no manner of doubt that the provisions of the Special Courts Act, wherever they are applicable, shall prevail over the provisions of the Income-tax Act.8. In view of Section 9A of the Special Courts Act the jurisdiction of the Special Court is in relation to any matter or claim relating to any property standing attached under sub-section (3) of Section 3 of the Special Courts Act. What is attached under sub-section (3) of Section 3 of the Special Courts Act is the property, moveable or immoveable, or both belonging to any person notified under sub-section (2) of Section 3 of the Special Courts Act. As already mentioned it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and not M/s. Killick Nixon Pvt. Ltd. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party. M/s. Dhanraj Mills Pvt. Ltd. owed money from M/s Killick Nixon Pvt. Ltd. and its 9 subsidiary companies of which the former stood as guarantor and it was in execution of the decrees passed in favour of M/s. Dhanraj Mills Pvt. Ltd. that the property of M/s. Killick Nixon Pvt. Ltd. was put to auction. Thus the Special Court could not have entertained the application moved by the Income Tax Department under Section 226(4) of the Income Tax Act for realization of its income tax dues from M/s. Killick Nixon Pvt. Ltd. The application moved by the Income Tax Department was, therefore, rightly rejected by the Special Court.9. Learned counsel for the appellant has also submitted that having regard to Section 10 of the Special Courts Act which provides appeal against the order of the Special Court to this Court both on facts and law, the Special Courts ought to have examined the matter in detail and has erred in rejecting the Intervention Applications by passing a short and cryptic order of 4 or 5 lines. In our opinion, the Special Court having noted the relevant legal provision for rejecting the applications, no exception can be taken to the order passed by it. At any rate we have examined the matter on merits and have arrived at a conclusion that the Intervention Applications were not maintainable before the Special Court. | 0[ds]A perusal of these provisions clearly shows that the Tax Recovery Officer has nothing to do with an application under section 226(4) made by the Income-tax Officer to a court in which there is money lying to the credit of the assessee in default. If such an application is made, it is certainly open to the court to determine as to whether there has been a proper notice of demand served on the decree-holder (assessee in default) according to law. It is only after the court is satisfied of this that the court can proceed to pay over the amount demanded to the Income-tax Officer. It is settled by authority long accepted that tax can be recovered from an assessee only when it becomes a debt due from him and that it becomes a debt due when a notice of demand calling for payment of the tax has been served on the assessee. If an assessee objects to the recovery proceedings taken under section 226(4) on the ground that there has been no valid service of a notice of demand and that, therefore, no debt is due, the court must decide the objection, and if it upholds the objection, it cannot permit recovery of the taxt decision relied upon by Dr. Padia is Lakshman Swarup Om Prakash vs. Union of India 229 ITR 662 , wherein it was held that under Section 226(4) of the Income-tax Act the Assessing Officer or the Tax Recovery Officer can move the court having custody of money belonging to the assessee for payment to him of such money for discharging the tax liability of the assessee. What is necessary is that on the date when the application is made the court should have custody of money belonging to the assessee. In that case reference was made to the following observations made in Union of India vs. Somasundaram Mills (P) Ltd. 152 ITR 420 :is a general principle of law that debts due to the State are entitled to priority over all other debts. If a decree-holder brings aproperty to sale and the sale proceeds are lying in deposit in court, the State may, even without prior attachment, exercise its right to priority by making an application to the executing court for payment of its dues. If, however, the State does not choose to apply to the court for payment of its dues from the amount lying in deposit in the court but allows the amount to be taken away by some other attaching decree-holder, the State cannot thereafter make an application for payment of its dues from the sale proceeds, since there is no amount left with the court to be paid to theLearned counsel hasi Subramonium Prasad, learned counsel for the custodian, has, on the other hand, submitted that it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and the property, both moveable and immoveable, or both of the notified party stood attached simultaneously with the issue of the notification under sub-section (2) of Section 3 of the Special Courts Act. Thus the attached property also became property of the notified party. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party under sub-section (2) of Section 3 of the Special Courts Act. The money realized by the auction sale of the property of M/s. Killick Nixon Pvt. Ltd. in the execution proceedings initiated after decrees had been passed in favour of M/s. Dhanraj Mills Pvt. Ltd. was the property of the notified party, viz., M/s. Dhanraj Mills Pvt. Ltd. and as such the Income Tax Department could not claim any right under Section 226(4) of the Income-tax Act to recover its income tax dues from M/s. Killick Nixon Pvt. Ltd. out of the money so realized.Learned counsel hasfurther submitted that Section 11 of the Special Courts Act lays down the manner in which the liabilities of the notified party has to be discharged and under clause (a) of sub-section (2) thereof all taxes due from the notified party to the Government have to be discharged first.Learned counsel hasalso submitted that in view of Section 13, the Special Courts Act shall have an overriding effect over the provisions of the Income-tax Act.Learned counsel hasreferred to the decision of this Court in Solidaire India Ltd. vs. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71 , wherein it was observed as under at page 74 of the reports:The language employed in Section 13 of the Special Courts Act is clear and explicit when it says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 also contains a similar clause that the provisions of the said Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. In Solidair India Ltd. (supra) the provisions of Section 13 of the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 and Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 were examined and it was held that both these Acts are special Acts and in such an event it is the later Act, namely, the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 which must prevail. Thus there can be no manner of doubt that the provisions of the Special Courts Act, wherever they are applicable, shall prevail over the provisions of the Income-tax Act.8. In view of Section 9A of the Special Courts Act the jurisdiction of the Special Court is inrelation to any matter orclaim relating to any property standing attached under sub-section (3) of Section 3 of the Special Courts Act. What is attached under sub-section (3) of Section 3 of the Special Courts Act is the property, moveable or immoveable, or both belonging to any person notified under sub-section (2) of Section 3 of the Special Courts Act. As already mentioned it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and not M/s. Killick Nixon Pvt. Ltd. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party. M/s. Dhanraj Mills Pvt. Ltd. owed money from M/s Killick Nixon Pvt. Ltd. and its 9 subsidiary companies of which the former stood as guarantor and it was in execution of the decrees passed in favour of M/s. Dhanraj Mills Pvt. Ltd. that the property of M/s. Killick Nixon Pvt. Ltd. was put to auction. Thus the Special Court could not have entertained the application moved by the Income Tax Department under Section 226(4) of the Income Tax Act for realization of its income tax dues from M/s. Killick Nixon Pvt. Ltd. The application moved by the Income Tax Department was, therefore, rightly rejected by the Special Court.9. Learnedcounsel for the appellant has also submitted that having regard to Section 10 of the Special Courts Act which provides appeal against the order of the Special Court to this Court both on facts and law, the Special Courts ought to have examined the matter in detail and has erred in rejecting the Intervention Applications by passing a short and cryptic order of 4 or 5 lines.In our opinion, the Special Court having noted the relevant legal provision for rejecting the applications, no exception can be taken to the order passed by it. At any rate we have examined the matter on merits and have arrived at a conclusion that the Intervention Applications were not maintainable before the Special Court. | 0 | 4,423 | 1,460 | ### 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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or both of the notified party stood attached simultaneously with the issue of the notification under sub-section (2) of Section 3 of the Special Courts Act. Thus the attached property also became property of the notified party. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party under sub-section (2) of Section 3 of the Special Courts Act. The money realized by the auction sale of the property of M/s. Killick Nixon Pvt. Ltd. in the execution proceedings initiated after decrees had been passed in favour of M/s. Dhanraj Mills Pvt. Ltd. was the property of the notified party, viz., M/s. Dhanraj Mills Pvt. Ltd. and as such the Income Tax Department could not claim any right under Section 226(4) of the Income-tax Act to recover its income tax dues from M/s. Killick Nixon Pvt. Ltd. out of the money so realized. Learned counsel has further submitted that Section 11 of the Special Courts Act lays down the manner in which the liabilities of the notified party has to be discharged and under clause (a) of sub-section (2) thereof all taxes due from the notified party to the Government have to be discharged first. Learned counsel has also submitted that in view of Section 13, the Special Courts Act shall have an overriding effect over the provisions of the Income-tax Act. Learned counsel has referred to the decision of this Court in Solidaire India Ltd. vs. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71 , wherein it was observed as under at page 74 of the reports: - “Under Section 3 of the 1992 Act, all property of notified persons is to stand attached. Under Section 3(4), it is only the Special Court which can give directions to the Custodian in respect of property of the notified party. Similarly, under Section 11(1), the Special Court can give directions regarding property of a notified party. Under Section 11(2), the Special Court is to distribute the assets of the notified party in the manner set out thereunder. Monies payable to the notified parties are assets of the notified party and are, therefore, assets which stand attached. These are assets which have to be collected by the Special Court for the purposes of distribution under Section 11(2). The distribution can only take place provided the assets are first collected. The whole aim of these provisions is to ensure that monies which are siphoned off from banks and financial institutions into private pockets are returned to the banks and financial institutions. The time and manner of distribution is to be decided by the Special Court only..........” 7. The language employed in Section 13 of the Special Courts Act is clear and explicit when it says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 also contains a similar clause that the provisions of the said Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. In Solidair India Ltd. (supra) the provisions of Section 13 of the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 and Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 were examined and it was held that both these Acts are special Acts and in such an event it is the later Act, namely, the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 which must prevail. Thus there can be no manner of doubt that the provisions of the Special Courts Act, wherever they are applicable, shall prevail over the provisions of the Income-tax Act.8. In view of Section 9A of the Special Courts Act the jurisdiction of the Special Court is in relation to any matter or claim relating to any property standing attached under sub-section (3) of Section 3 of the Special Courts Act. What is attached under sub-section (3) of Section 3 of the Special Courts Act is the property, moveable or immoveable, or both belonging to any person notified under sub-section (2) of Section 3 of the Special Courts Act. As already mentioned it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and not M/s. Killick Nixon Pvt. Ltd. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party. M/s. Dhanraj Mills Pvt. Ltd. owed money from M/s Killick Nixon Pvt. Ltd. and its 9 subsidiary companies of which the former stood as guarantor and it was in execution of the decrees passed in favour of M/s. Dhanraj Mills Pvt. Ltd. that the property of M/s. Killick Nixon Pvt. Ltd. was put to auction. Thus the Special Court could not have entertained the application moved by the Income Tax Department under Section 226(4) of the Income Tax Act for realization of its income tax dues from M/s. Killick Nixon Pvt. Ltd. The application moved by the Income Tax Department was, therefore, rightly rejected by the Special Court.9. Learned counsel for the appellant has also submitted that having regard to Section 10 of the Special Courts Act which provides appeal against the order of the Special Court to this Court both on facts and law, the Special Courts ought to have examined the matter in detail and has erred in rejecting the Intervention Applications by passing a short and cryptic order of 4 or 5 lines. In our opinion, the Special Court having noted the relevant legal provision for rejecting the applications, no exception can be taken to the order passed by it. At any rate we have examined the matter on merits and have arrived at a conclusion that the Intervention Applications were not maintainable before the Special Court.
### Response:
0
### Explanation:
vs. Somasundaram Mills (P) Ltd. 152 ITR 420 :is a general principle of law that debts due to the State are entitled to priority over all other debts. If a decree-holder brings aproperty to sale and the sale proceeds are lying in deposit in court, the State may, even without prior attachment, exercise its right to priority by making an application to the executing court for payment of its dues. If, however, the State does not choose to apply to the court for payment of its dues from the amount lying in deposit in the court but allows the amount to be taken away by some other attaching decree-holder, the State cannot thereafter make an application for payment of its dues from the sale proceeds, since there is no amount left with the court to be paid to theLearned counsel hasi Subramonium Prasad, learned counsel for the custodian, has, on the other hand, submitted that it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and the property, both moveable and immoveable, or both of the notified party stood attached simultaneously with the issue of the notification under sub-section (2) of Section 3 of the Special Courts Act. Thus the attached property also became property of the notified party. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party under sub-section (2) of Section 3 of the Special Courts Act. The money realized by the auction sale of the property of M/s. Killick Nixon Pvt. Ltd. in the execution proceedings initiated after decrees had been passed in favour of M/s. Dhanraj Mills Pvt. Ltd. was the property of the notified party, viz., M/s. Dhanraj Mills Pvt. Ltd. and as such the Income Tax Department could not claim any right under Section 226(4) of the Income-tax Act to recover its income tax dues from M/s. Killick Nixon Pvt. Ltd. out of the money so realized.Learned counsel hasfurther submitted that Section 11 of the Special Courts Act lays down the manner in which the liabilities of the notified party has to be discharged and under clause (a) of sub-section (2) thereof all taxes due from the notified party to the Government have to be discharged first.Learned counsel hasalso submitted that in view of Section 13, the Special Courts Act shall have an overriding effect over the provisions of the Income-tax Act.Learned counsel hasreferred to the decision of this Court in Solidaire India Ltd. vs. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71 , wherein it was observed as under at page 74 of the reports:The language employed in Section 13 of the Special Courts Act is clear and explicit when it says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 also contains a similar clause that the provisions of the said Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. In Solidair India Ltd. (supra) the provisions of Section 13 of the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 and Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 were examined and it was held that both these Acts are special Acts and in such an event it is the later Act, namely, the Special Courts (Trial Of Offences Relating To Transactions In Securities) Act, 1992 which must prevail. Thus there can be no manner of doubt that the provisions of the Special Courts Act, wherever they are applicable, shall prevail over the provisions of the Income-tax Act.8. In view of Section 9A of the Special Courts Act the jurisdiction of the Special Court is inrelation to any matter orclaim relating to any property standing attached under sub-section (3) of Section 3 of the Special Courts Act. What is attached under sub-section (3) of Section 3 of the Special Courts Act is the property, moveable or immoveable, or both belonging to any person notified under sub-section (2) of Section 3 of the Special Courts Act. As already mentioned it was M/s. Dhanraj Mills Pvt. Ltd. which had been notified as a party under sub-section (2) of Section 3 of the Special Courts Act and not M/s. Killick Nixon Pvt. Ltd. M/s. Killick Nixon Pvt. Ltd. had not been notified as a party. M/s. Dhanraj Mills Pvt. Ltd. owed money from M/s Killick Nixon Pvt. Ltd. and its 9 subsidiary companies of which the former stood as guarantor and it was in execution of the decrees passed in favour of M/s. Dhanraj Mills Pvt. Ltd. that the property of M/s. Killick Nixon Pvt. Ltd. was put to auction. Thus the Special Court could not have entertained the application moved by the Income Tax Department under Section 226(4) of the Income Tax Act for realization of its income tax dues from M/s. Killick Nixon Pvt. Ltd. The application moved by the Income Tax Department was, therefore, rightly rejected by the Special Court.9. Learnedcounsel for the appellant has also submitted that having regard to Section 10 of the Special Courts Act which provides appeal against the order of the Special Court to this Court both on facts and law, the Special Courts ought to have examined the matter in detail and has erred in rejecting the Intervention Applications by passing a short and cryptic order of 4 or 5 lines.In our opinion, the Special Court having noted the relevant legal provision for rejecting the applications, no exception can be taken to the order passed by it. At any rate we have examined the matter on merits and have arrived at a conclusion that the Intervention Applications were not maintainable before the Special Court.
|
Porritts and Spencer (Asia) Limited Vs. State of Haryana | weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. Moreover a textile need not be of any particular size or strength or weight. It may be in small pieces o r in big rolls: it may be weak or strong, light or heavy, bleach or dyed, according to the requirement of the purchaser. The use to which it may be put is also immaterial and does not bear on its character as a textile. It may-be used for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body. A textile may have diverse uses and it is not the use which determines its character as textile. It is, therefore, no argument against the assessee that dryer felts are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate against dryer felts falling within t he category of textiles, if otherwise they satisfy the description of textiles.Now, what. are dryer felts ? They are of two kinds, cotton dryer felts and woollen dryer felts. Both are made of yarn, cotton in one case and woollen in the other. Some synthetic yarn is also used The process employed is that of weaving according to warp and woof pattern. This is how the manufacturing process is described by the assessing authority in its order dated 12th November, 1971 "the raw material used by . the company is cotton and woollen yarn which they themselves manufactured from raw cotton and wool and the finished products called felts are manufactured on power looms from cotton and woollen yarn." Dryer felts ar e, therefore, clearly woven fabrics and must be held to fall within the ordinary meaning of the word textiles. We do not think that the word textiles has any narrower meaning in common parlance other than the ordinary meaning given in the dictionary, namely, a woven fabric. There may be wide ranging varieties of woven fabric and they may go on multiplying and proliferating with new developments in science and technology and inventions of new methods" materials and techniques, but nonetheless they would all be textiles. The analogy of cases where the word vegetables was held not to include betel leaves or sugar-cane is wholly inappropriate. There, what was disapproved by the Court was resort to the botanical meaning of the word vegetables when that word had acquired a popular meaning which was different. It was said by Holmes, J., in his inimitable style: "A word is not a crystal, transparent and unchanged; it is the skin of a living Thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the Legislature. The reason is that as pointed out by Story, J., in 200 Chest. (of Tea (supra), the Legislature does "not suppose our merchant s to be naturalists, or geologists, or botanists". But here the word textiles is not sought by the assessee to be given a scientific or technical meaning in preference to its popular meaning. It has only one meaning. namely, a woven fabric and that is the meaning which it bears in ordinary parlance. It is true that out minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little strange to regard dryer felts as textiles: But it must be remembered that the concept or textiles is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as textiles. Take for example rayon and nylon fabrics which have now become very popular for making wearing apparel. When they first came to be made, they must have been intruders in the field of textiles because only cotton, silk and woollen fabrics were till then recognized as textiles. But today no one can dispute that rayon and nylon fabrics are textiles and can properly be described as such. `We may take another example Which is nearer to the case before his. It is common knowledge that certain kinds of hats are made out of felt and though felt is not ordinarily used for making wearing , apparel, can it be suggested that felt is not a textile ? The character of fabric or material as textile does not depend upon the use to which it may be put. The uses of textiles in a fast developing economy are manifold and it is quite common now to find textiles being, used even for industrial purposes. If were look at the Customs Tariff Act, 1975, we find in Chapter 59 occurring in section XI of the First Schedule that there is a reference to textile fabrics and textile articles, of a kind commonly used in machinery or plant and clause (4) of that Chapter provides that this expression shall be taken to apply inter alia to woven textile felts.... of a kind commonly used in paper making or other machinery........... ".6. This reference in a statute which is intended to apply to imports made by the trading community clearly shows that dryer felts which are woven textile felts... of a kind commonly used in paper making machinery" are regarded ill common parlance, according to the sense of ordinary traders and merchants, textile fabrics. We have, therefore, no doubt that dryer felts are textiles within the meaning of that expression in Item 3() of Schedule B.7. | 1[ds]The answer to the question depends on what is the true meaning of the word "textiles as used in Item 30 of Schedule `B. Now, the word textiles is not defined in the Act, but it is well settled as a result of several decisions of this Court. Of which we may mention only a few, namely,Ramavatar Budhaiprasad v. Assistant Sales Tax officer, Akola (A. T. K. 1961 SC1325.) and M/s Motipur Jamindary Co. Ltd. v. State of Bihar (A. I. R. 1962 SC 660 .) and the State of West Bengal v Washi Ahmed ([1977] 3 SCR 149.) that in a taxing statute words of every, day use must be construed not in their scientific or technical sense but as, understood in common parlance. The question which arose in Ramavatars case (supra) was whether betel leaves are vegetables and this Court held that they are not `irekldel within that term. , This Court chuoted with approval the following passage from the judgment of the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants Association, Santard Market, Nagpur v. State of Madllya Pradeh(7 S. T. C. 99 atour opinion, the word "vegetables cannot be given themcaning the term bears in natural nistory and has not been given that meaning in taxing statutes beC fore The term "vegetables is to be understood as commonly understood denoting thosc classes of vegetable matter which are grown in kitchen gardens and are used for the tablobserved that "the word vegetables in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetabies which are grown in a kitchen garden or in a farm and are used for the table." This meaning of the worc.. vegetables was reiterated in M/s Motipur Jamindary case where sugarcane was held not to fall within the definition of the word vegetables ancl the same meaning was given to the word vegetables in Washi Ahmeds case (supra) where greerl ginger was held to be vegetables within the meaning of that word as used in commonwas pointed out by this Court in Washi Ahmeds case (supra) that the sarne principle of construction in .elation to words used in a taxing statute has also been adopted in English,248.). that if a statutc contains language which is capable of being construed in a p3pular sense, such a statute is to the construed according to the strict or technical meaning of the laaguage contained in it, but is to be construed in its popular sense? meaning, of eourse, by the words "popular sense that which people conversant with the, with which the statute is dealing. would attribute it." So also the Supreme Court of Canada said PlantersNut and Chocolate Co. Ltd v. The King([1951] 1 D.L.R. 385)while interpreting the words fruits and vegetables in the Excise Act." They are ordinary words in every day use and are, therefore to be construed according to their popular sense". The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea([1824] 9 Wheaton (US.) 430 at 438.) where the learned Judge said that the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does "not suppose our merchants to be naturalists, or geologists, or botanists.". "There call, therefore, be no doubt that the word textiles in Item 30 of Schedule B must be interpreted according to its popular sense, meaning "that scene which people conversant with thewith which the statute is dealing would attribute to it". There we are in complete Agreement with the Judges who held in favour of the Revenue and against the assessee. But the question is: What result does the application of this test yield ? Are dryer felts not textiles within the ordinary accepted meaning of that word ? the word textiles is derived from the Latin texere which means to weave and it means any woven fabric. When yarn, whether cotton, silk, woollen, rayon, nylon or of any other description as made out of any other material is woven into a fabric, w hat comes into being is a textile and it is known as such. It may be cotton textile, silk textile, woollen textile, rayon textile, nylon textile or any other hind of textile. The method of weaving adopted may be the warp and woof pattern as is generally the case in most of the textiles, or it may be any other process or technique. There is such phenomenal advance in science and technology, so wondrous i.. the variety of fabrics manufactured from materials hithereto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving process to the warp and woof pattern. Whatever be the mode of weaving employed, woven fabric would be textiles . What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. Moreover a textile need not be of any particular size or strength or weight. It may be in small pieces o r in big rolls: it may be weak or strong, light or heavy, bleach or dyed, according to the requirement of the purchaser. The use to which it may be put is also immaterial and does not bear on its character as a textile. Itused for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body. A textile may have diverse uses and it is not the use which determines its character as textile. It is, therefore, no argument against the assessee that dryer felts are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate against dryer felts falling within t he category of textiles, if otherwise they satisfy the description of textiles.Now, what. are dryer felts ? They are of two kinds, cotton dryer felts and woollen dryer felts. Both are made of yarn, cotton in one case and woollen in the other. Some synthetic yarn is also used The process employed is that of weaving according to warp and woof pattern. This is how the manufacturing process is described by the assessing authority in its order dated 12th November, 1971 "the raw material used by . the company is cotton and woollen yarn which they themselves manufactured from raw cotton and wool and the finished products called felts are manufactured on power looms from cotton and woollen yarn." Dryer felts ar e, therefore, clearly woven fabrics and must be held to fall within the ordinary meaning of the word textiles. We do not think that the word textiles has any narrower meaning in common parlance other than the ordinary meaning given in the dictionary, namely, a woven fabric. There may be wide ranging varieties of woven fabric and they may go on multiplying and proliferating with new developments in science and technology and inventions of new methods" materials and techniques, but nonetheless they would all be textiles. The analogy of cases where the word vegetables was held not to include betel leaves oris wholly inappropriate. There, what was disapproved by the Court was resort to the botanical meaning of the word vegetables when that word had acquired a popular meaning which washere the word textiles is not sought by the assessee to be given a scientific or technical meaning in preference to its popular meaning. It has only one meaning. namely, a woven fabric and that is the meaning which it bears in ordinary parlance. It is true that out minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little strange to regard dryer felts as textiles: But it must be remembered that the concept or textiles is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as textiles. Take for example rayon and nylon fabrics which have now become very popular for making wearing apparel. When they first came to be made, they must have been intruders in the field of textiles because only cotton, silk and woollen fabrics were till then recognized as textiles. But today no one can dispute that rayon and nylon fabrics are textiles and can properly be described as such. `We may take another example Which is nearer to the case before his. It is common knowledge that certain kinds of hats are made out of felt and though felt is not ordinarily used for making wearing , apparel, can it be suggested that felt is not a textile ? The character of fabric or material as textile does not depend upon the use to which it may be put. The uses of textiles in a fast developing economy are manifold and it is quite common now to find textiles being, used even for industrial purposes. If were look at the Customs Tariff Act, 1975, we find in Chapter 59 occurring in section XI of the First Schedule that there is a reference to textile fabrics and textile articles, of a kind commonly used in machinery or plant and clause (4) of that Chapter provides that this expression shall be taken to apply inter alia to woven textile felts.... of a kind commonly used in paper making or other machinery...........reference in a statute which is intended to apply to imports made by the trading community clearly shows that dryer felts which are woven textile felts... of a kind commonly used in paper making machinery" are regarded ill common parlance, according to the sense of ordinary traders and merchants, textile fabrics. We have, therefore, no doubt that dryer felts are textiles within the meaning of that expression in Item 3() of Schedule B. | 1 | 2,740 | 1,902 | ### 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:
weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. Moreover a textile need not be of any particular size or strength or weight. It may be in small pieces o r in big rolls: it may be weak or strong, light or heavy, bleach or dyed, according to the requirement of the purchaser. The use to which it may be put is also immaterial and does not bear on its character as a textile. It may-be used for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body. A textile may have diverse uses and it is not the use which determines its character as textile. It is, therefore, no argument against the assessee that dryer felts are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate against dryer felts falling within t he category of textiles, if otherwise they satisfy the description of textiles.Now, what. are dryer felts ? They are of two kinds, cotton dryer felts and woollen dryer felts. Both are made of yarn, cotton in one case and woollen in the other. Some synthetic yarn is also used The process employed is that of weaving according to warp and woof pattern. This is how the manufacturing process is described by the assessing authority in its order dated 12th November, 1971 "the raw material used by . the company is cotton and woollen yarn which they themselves manufactured from raw cotton and wool and the finished products called felts are manufactured on power looms from cotton and woollen yarn." Dryer felts ar e, therefore, clearly woven fabrics and must be held to fall within the ordinary meaning of the word textiles. We do not think that the word textiles has any narrower meaning in common parlance other than the ordinary meaning given in the dictionary, namely, a woven fabric. There may be wide ranging varieties of woven fabric and they may go on multiplying and proliferating with new developments in science and technology and inventions of new methods" materials and techniques, but nonetheless they would all be textiles. The analogy of cases where the word vegetables was held not to include betel leaves or sugar-cane is wholly inappropriate. There, what was disapproved by the Court was resort to the botanical meaning of the word vegetables when that word had acquired a popular meaning which was different. It was said by Holmes, J., in his inimitable style: "A word is not a crystal, transparent and unchanged; it is the skin of a living Thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the Legislature. The reason is that as pointed out by Story, J., in 200 Chest. (of Tea (supra), the Legislature does "not suppose our merchant s to be naturalists, or geologists, or botanists". But here the word textiles is not sought by the assessee to be given a scientific or technical meaning in preference to its popular meaning. It has only one meaning. namely, a woven fabric and that is the meaning which it bears in ordinary parlance. It is true that out minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little strange to regard dryer felts as textiles: But it must be remembered that the concept or textiles is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as textiles. Take for example rayon and nylon fabrics which have now become very popular for making wearing apparel. When they first came to be made, they must have been intruders in the field of textiles because only cotton, silk and woollen fabrics were till then recognized as textiles. But today no one can dispute that rayon and nylon fabrics are textiles and can properly be described as such. `We may take another example Which is nearer to the case before his. It is common knowledge that certain kinds of hats are made out of felt and though felt is not ordinarily used for making wearing , apparel, can it be suggested that felt is not a textile ? The character of fabric or material as textile does not depend upon the use to which it may be put. The uses of textiles in a fast developing economy are manifold and it is quite common now to find textiles being, used even for industrial purposes. If were look at the Customs Tariff Act, 1975, we find in Chapter 59 occurring in section XI of the First Schedule that there is a reference to textile fabrics and textile articles, of a kind commonly used in machinery or plant and clause (4) of that Chapter provides that this expression shall be taken to apply inter alia to woven textile felts.... of a kind commonly used in paper making or other machinery........... ".6. This reference in a statute which is intended to apply to imports made by the trading community clearly shows that dryer felts which are woven textile felts... of a kind commonly used in paper making machinery" are regarded ill common parlance, according to the sense of ordinary traders and merchants, textile fabrics. We have, therefore, no doubt that dryer felts are textiles within the meaning of that expression in Item 3() of Schedule B.7.
### Response:
1
### Explanation:
being is a textile and it is known as such. It may be cotton textile, silk textile, woollen textile, rayon textile, nylon textile or any other hind of textile. The method of weaving adopted may be the warp and woof pattern as is generally the case in most of the textiles, or it may be any other process or technique. There is such phenomenal advance in science and technology, so wondrous i.. the variety of fabrics manufactured from materials hithereto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving process to the warp and woof pattern. Whatever be the mode of weaving employed, woven fabric would be textiles . What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. Moreover a textile need not be of any particular size or strength or weight. It may be in small pieces o r in big rolls: it may be weak or strong, light or heavy, bleach or dyed, according to the requirement of the purchaser. The use to which it may be put is also immaterial and does not bear on its character as a textile. Itused for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body. A textile may have diverse uses and it is not the use which determines its character as textile. It is, therefore, no argument against the assessee that dryer felts are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate against dryer felts falling within t he category of textiles, if otherwise they satisfy the description of textiles.Now, what. are dryer felts ? They are of two kinds, cotton dryer felts and woollen dryer felts. Both are made of yarn, cotton in one case and woollen in the other. Some synthetic yarn is also used The process employed is that of weaving according to warp and woof pattern. This is how the manufacturing process is described by the assessing authority in its order dated 12th November, 1971 "the raw material used by . the company is cotton and woollen yarn which they themselves manufactured from raw cotton and wool and the finished products called felts are manufactured on power looms from cotton and woollen yarn." Dryer felts ar e, therefore, clearly woven fabrics and must be held to fall within the ordinary meaning of the word textiles. We do not think that the word textiles has any narrower meaning in common parlance other than the ordinary meaning given in the dictionary, namely, a woven fabric. There may be wide ranging varieties of woven fabric and they may go on multiplying and proliferating with new developments in science and technology and inventions of new methods" materials and techniques, but nonetheless they would all be textiles. The analogy of cases where the word vegetables was held not to include betel leaves oris wholly inappropriate. There, what was disapproved by the Court was resort to the botanical meaning of the word vegetables when that word had acquired a popular meaning which washere the word textiles is not sought by the assessee to be given a scientific or technical meaning in preference to its popular meaning. It has only one meaning. namely, a woven fabric and that is the meaning which it bears in ordinary parlance. It is true that out minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little strange to regard dryer felts as textiles: But it must be remembered that the concept or textiles is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as textiles. Take for example rayon and nylon fabrics which have now become very popular for making wearing apparel. When they first came to be made, they must have been intruders in the field of textiles because only cotton, silk and woollen fabrics were till then recognized as textiles. But today no one can dispute that rayon and nylon fabrics are textiles and can properly be described as such. `We may take another example Which is nearer to the case before his. It is common knowledge that certain kinds of hats are made out of felt and though felt is not ordinarily used for making wearing , apparel, can it be suggested that felt is not a textile ? The character of fabric or material as textile does not depend upon the use to which it may be put. The uses of textiles in a fast developing economy are manifold and it is quite common now to find textiles being, used even for industrial purposes. If were look at the Customs Tariff Act, 1975, we find in Chapter 59 occurring in section XI of the First Schedule that there is a reference to textile fabrics and textile articles, of a kind commonly used in machinery or plant and clause (4) of that Chapter provides that this expression shall be taken to apply inter alia to woven textile felts.... of a kind commonly used in paper making or other machinery...........reference in a statute which is intended to apply to imports made by the trading community clearly shows that dryer felts which are woven textile felts... of a kind commonly used in paper making machinery" are regarded ill common parlance, according to the sense of ordinary traders and merchants, textile fabrics. We have, therefore, no doubt that dryer felts are textiles within the meaning of that expression in Item 3() of Schedule B.
|
B.S.N.L., Jammu Vs. Teja Singh | a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end and the end of the contract, if it were an engagement or appointment on daily wags or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitle to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." 8. In view of the said decision of the Constitution Bench, there cannot be any doubt whatsoever that the 1989 regularisation scheme having not been enforced in the case of the respondent, it did not come within the purview of the exception carved out by the Court in paragraph 53, of Umadevi as quoted above. The view of the Constitution Bench in Umadevi (supra) has been reiterated by a three-Judge Bench of this Court in Official Liquidator vs. Dayanand and Ors. [2008 (10) SCC 1 ], stating that the High Courts shall give effect thereto, opining: "90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State an who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey (2007 11 SCC 92 ) should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." 9. For the reasons aforementioned, we are of the opinion that the view of the learned Tribunal as also the High Court cannot be sustained. | 1[ds]A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. [2006 (4) SCC 1 ], has categorically held that keeping in view the constitutional scheme of equality, as contained in Articles 14 and 16 of the Constitution of India, regularisation or permanent continuance of temporary, contractual, casual,or ad hoc employees in public employment dehors the constitutional scheme is impermissible inview of the said decision of the Constitution Bench, there cannot be any doubt whatsoever that the 1989 regularisation scheme having not been enforced in the case of the respondent, it did not come within the purview of the exception carved out by the Court in paragraph 53, of Umadevi as quotedthe reasons aforementioned, we are of the opinion that the view of the learned Tribunal as also the High Court cannot be sustained. | 1 | 1,720 | 167 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end and the end of the contract, if it were an engagement or appointment on daily wags or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitle to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." 8. In view of the said decision of the Constitution Bench, there cannot be any doubt whatsoever that the 1989 regularisation scheme having not been enforced in the case of the respondent, it did not come within the purview of the exception carved out by the Court in paragraph 53, of Umadevi as quoted above. The view of the Constitution Bench in Umadevi (supra) has been reiterated by a three-Judge Bench of this Court in Official Liquidator vs. Dayanand and Ors. [2008 (10) SCC 1 ], stating that the High Courts shall give effect thereto, opining: "90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State an who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey (2007 11 SCC 92 ) should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." 9. For the reasons aforementioned, we are of the opinion that the view of the learned Tribunal as also the High Court cannot be sustained.
### Response:
1
### Explanation:
A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. [2006 (4) SCC 1 ], has categorically held that keeping in view the constitutional scheme of equality, as contained in Articles 14 and 16 of the Constitution of India, regularisation or permanent continuance of temporary, contractual, casual,or ad hoc employees in public employment dehors the constitutional scheme is impermissible inview of the said decision of the Constitution Bench, there cannot be any doubt whatsoever that the 1989 regularisation scheme having not been enforced in the case of the respondent, it did not come within the purview of the exception carved out by the Court in paragraph 53, of Umadevi as quotedthe reasons aforementioned, we are of the opinion that the view of the learned Tribunal as also the High Court cannot be sustained.
|
Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) & Ors | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned orders passed by the High Court of Judicature at Bombay in Writ Petitions Nos. 3209/2019, 3150/2019, 3208/2019 and 3137/2019, by which the Division Bench of the High Court has dismissed the said writ petitions in which the appellants herein – original writ petitioners challenged the reopening of the assessment/re--assessment proceedings, the original writ petitioners have preferred the present appeals. 2. We have heard Shri Devendra Jain, learned counsel appearing on behalf of the respective appellants and Shri Balbir Singh, learned ASG appearing on behalf of the Revenue. We have gone through the respective orders passed by the High Court dismissing the writ petitions. Having gone through the orders passed by the High Court dismissing the writ petitions, it can be seen that the said orders are cryptic, non--speaking and non--reasoned orders. The order dated 11.01.2022 reads as under: - 1. We are not inclined to entertain this petition. At the same time, the Assessing Officer who will be different from the officer who had pass the order dated 10th October, 2019 rejecting the objections filed by petitioner for re-opening under Section 148 of the Income Tax Act, 1961 (the Act) shall permit petitioner to file further documents and case laws if adviced and also grant a personal hearing before passing the assessment order. The assessment order to be passed within 12 weeks from the date this order is uploaded. Petitioner shall be given atleast seven days advance notice about the date and time of the personal hearing. 2. The Assessing Officer shall deal with all the submissions made by petitioner including those raised in his objections to the re-opening and pass detailed order in accordance with law. From the writ petitions produced on record, it appears that the reopening of the assessment under Section 148 of the Income Tax Act has been challenged on a number of grounds. None of the grounds raised in the writ petitions has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petitions. The Division Bench of the High Court has dismissed the writ petitions in a most casual manner which is unsustainable. Except stating that we are not inclined to entertain writ petition, nothing further has been stated by the High Court giving reasons for the disinclination to entertain the writ petitions. 2.1 The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court. When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons. 2.2 The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not. 2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost. 2.4 In the recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved. 3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petitions, in the interest of sobriety, we may only note that the orders are bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents. 4. Since we cannot countenance the manner in which the orders have been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petitions afresh on merits, we do so in light of the aforesaid observations. | 1[ds]We have gone through the respective orders passed by the High Court dismissing the writ petitions. Having gone through the orders passed by the High Court dismissing the writ petitions, it can be seen that the said orders are cryptic, non--speaking and non--reasoned orders.2.1 The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court. When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.2.2 The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not.2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.2.4 In the recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved.3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petitions, in the interest of sobriety, we may only note that the orders are bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents.4. Since we cannot countenance the manner in which the orders have been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petitions afresh on merits, we do so in light of the aforesaid observations. | 1 | 1,046 | 640 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned orders passed by the High Court of Judicature at Bombay in Writ Petitions Nos. 3209/2019, 3150/2019, 3208/2019 and 3137/2019, by which the Division Bench of the High Court has dismissed the said writ petitions in which the appellants herein – original writ petitioners challenged the reopening of the assessment/re--assessment proceedings, the original writ petitioners have preferred the present appeals. 2. We have heard Shri Devendra Jain, learned counsel appearing on behalf of the respective appellants and Shri Balbir Singh, learned ASG appearing on behalf of the Revenue. We have gone through the respective orders passed by the High Court dismissing the writ petitions. Having gone through the orders passed by the High Court dismissing the writ petitions, it can be seen that the said orders are cryptic, non--speaking and non--reasoned orders. The order dated 11.01.2022 reads as under: - 1. We are not inclined to entertain this petition. At the same time, the Assessing Officer who will be different from the officer who had pass the order dated 10th October, 2019 rejecting the objections filed by petitioner for re-opening under Section 148 of the Income Tax Act, 1961 (the Act) shall permit petitioner to file further documents and case laws if adviced and also grant a personal hearing before passing the assessment order. The assessment order to be passed within 12 weeks from the date this order is uploaded. Petitioner shall be given atleast seven days advance notice about the date and time of the personal hearing. 2. The Assessing Officer shall deal with all the submissions made by petitioner including those raised in his objections to the re-opening and pass detailed order in accordance with law. From the writ petitions produced on record, it appears that the reopening of the assessment under Section 148 of the Income Tax Act has been challenged on a number of grounds. None of the grounds raised in the writ petitions has been dealt with and/or considered by the High Court on merits. There is no discussion at all on any of the grounds raised in the writ petitions. The Division Bench of the High Court has dismissed the writ petitions in a most casual manner which is unsustainable. Except stating that we are not inclined to entertain writ petition, nothing further has been stated by the High Court giving reasons for the disinclination to entertain the writ petitions. 2.1 The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court. When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons. 2.2 The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not. 2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost. 2.4 In the recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved. 3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petitions, in the interest of sobriety, we may only note that the orders are bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents. 4. Since we cannot countenance the manner in which the orders have been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petitions afresh on merits, we do so in light of the aforesaid observations.
### Response:
1
### Explanation:
We have gone through the respective orders passed by the High Court dismissing the writ petitions. Having gone through the orders passed by the High Court dismissing the writ petitions, it can be seen that the said orders are cryptic, non--speaking and non--reasoned orders.2.1 The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court. When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.2.2 The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not.2.3 While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees Vs. Indore Composite Private Limited, (2018) 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.2.4 In the recent decision in the case of Union Public Service Commission Vs. Bibhu Prasad Sarangi and Ors., (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved.3. Applying the law laid by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has disposed of the writ petitions, in the interest of sobriety, we may only note that the orders are bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents.4. Since we cannot countenance the manner in which the orders have been passed by the High Court which has compelled us to remand the matter to the High Court for deciding the writ petitions afresh on merits, we do so in light of the aforesaid observations.
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HEMA RASTOGI Vs. VISHAL RASTOGI | 1. Heard the petitioner-in-person and the learned counsel appearing for the respondent. 2. The present proceedings arise from an interim order passed by the Trial Court fixing the amount of maintenance payable to the petitioner in a petition for divorce instituted by the respondent. The amount was fixed at Rs. 10,000/- p.m. by the Trial Court. 3. It appears that the High Court reduced the amount of maintenance allowance from Rs.10,000/- per month to Rs.7,500/- per month and partly allowed the revision filed by the respondent-husband and dismissed the revision filed by the petitioner-wife as not maintainable. 4. After hearing the petitioner-in-person and learned counsel appearing for the respondent, it appears to us that the order passed by the trial Court granting the amount of maintenance allowance at Rs.10,000/- per month having regard to the salary of the respondent at the relevant time is reasonable and we are not in agreement with the order passed by the High Court reducing the maintenance allowance from Rs.10,000/- per month to Rs. 7,500/- per month. | 1[ds]4. After hearing the petitioner-in-person and learned counsel appearing for the respondent, it appears to us that the order passed by the trial Court granting the amount of maintenance allowance at Rs.10,000/- per month having regard to the salary of the respondent at the relevant time is reasonable and we are not in agreement with the order passed by the High Court reducing the maintenance allowance from Rs.10,000/- per month to Rs. 7,500/- per month. | 1 | 184 | 83 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. Heard the petitioner-in-person and the learned counsel appearing for the respondent. 2. The present proceedings arise from an interim order passed by the Trial Court fixing the amount of maintenance payable to the petitioner in a petition for divorce instituted by the respondent. The amount was fixed at Rs. 10,000/- p.m. by the Trial Court. 3. It appears that the High Court reduced the amount of maintenance allowance from Rs.10,000/- per month to Rs.7,500/- per month and partly allowed the revision filed by the respondent-husband and dismissed the revision filed by the petitioner-wife as not maintainable. 4. After hearing the petitioner-in-person and learned counsel appearing for the respondent, it appears to us that the order passed by the trial Court granting the amount of maintenance allowance at Rs.10,000/- per month having regard to the salary of the respondent at the relevant time is reasonable and we are not in agreement with the order passed by the High Court reducing the maintenance allowance from Rs.10,000/- per month to Rs. 7,500/- per month.
### Response:
1
### Explanation:
4. After hearing the petitioner-in-person and learned counsel appearing for the respondent, it appears to us that the order passed by the trial Court granting the amount of maintenance allowance at Rs.10,000/- per month having regard to the salary of the respondent at the relevant time is reasonable and we are not in agreement with the order passed by the High Court reducing the maintenance allowance from Rs.10,000/- per month to Rs. 7,500/- per month.
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R.G.S. Naidu & Company Vs. Commissioner of Income Tax Andexcess Profits Tax, Madras | computation of tax liability for Excess Profits Tax, and it was open to the Tax Officer to take action under S. 15 of the Excess Profits Tax Act. 11. Determination of the second question depends upon R. 9, Sch. 1, of the Excess Profits Tax Act. By S. 2 (19) of the Excess Profits Tax Act, the expression profits means profits as determined in accordance with Sch. 1. That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act; and by R. 9, it is provided in so far as it is material that : Where the performance of a contract extends beyond the accounting period, there shall (unless the Excess Profits Tax Officer, owing to any special circumstances, otherwise directs) be attributed to the accounting period such proportion of the entire profits or loss which has resulted, or which it is estimated will result, from the complete performance of the contract as is properly attributable to the accounting period, having regard to the extent to which the contract was performed therein. 12. The performance of the contract of managing agency extended beyond the period of account of the company which was July 1, 1945 to June 30, 1946 : it covered parts of two accounting periods. The Tax Officer was therefore obliged to apportion to the chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this, he proceeded to do. Counsel for the appellants contends that the contracts contemplated by R.9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit-making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period. It is true that remuneration was paid to the appellants after the expiry of the year of account of the company; but the contract was one the performance of which extended throughout the year of account of the company. The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year. It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract, The performance of the contract unmistakably cut across the accounting period is also manifest. The remuneration for performance of the contract is not computed at a daily rate, but is computed on a percentage of the commission on the profits of the company for the whole year, but on that account, the contract is not one in which performance does not extend throughout the year of account. Normally in a managing agency contract, the managing agent may not suffer loss, but that does not rule out the application of R. 9 to managing agency contracts. The terms in which R. 9 is enacted are general : the rule is applicable to all contracts which are intended to be operative for a fixed period. If, for the performance of the entire contract, remuneration is payable at rates stipulated, the profit earned out of that remuneration must be apportioned in the manner provided by R. 9 in the performance of the contract extends beyond the accounting period. 13. The judgment of this Court in E. D. Sassoon and Co., Ltd. v. Commr. of Income-Tax, Bombay City, 1955-1 S C R 313 : (AIR 1954 S C 470) on which strong reliance was placed by the appellants has no application to this case. In that case, M/s. E. D. Sassoon and Co., Ltd. who were managing agents of three different companies transferred the managing agencies to three other companies on several dates during the accounting year. A question arose in the computation of income-tax payable by M/s. E. D. Sassoon and Co., Ltd. whether the managing agency commission was liable to be apportioned between M/s E. D. Sassoon and Co., Ltd. and their respective transferees in the proportion of the services rendered as managing agents for the respective periods of the accounting year. It was held by this Court (Jagannadhadas, J. dissenting) that on a true interpretation of the managing agency agreements in each case, the contract of service between the companies and the managing agents was entire and indivisible and the remuneration or commission became due by the companies to the managing agents only on completion of definite periods of service and at stated intervals ; that complete performance was a condition precedent to the recovery of wages or salary in respect thereof and the remuneration payable constituted a debt only at the end of each period of service completely performed, no remuneration or commission being payable to the managing agents for broken periods; that no income was earned by or accrued to M/s E. D. Sassoon and Co., Ltd. and as the transfer of the agencies did not include any income which E. D. Sassoon and Co., Ltd., had earned, they were not liable to be taxed under the Income-Tax Act. But that was a case dealing with liability of the assesses who did not receive any income and to whom no income had accrued to pay income-tax on the amounts of remuneration paid to their transferees. The Court was not called upon to apply to income received by the assessee the principle of apportionment under R. 9 of Sch. 1 of the Excess Profits Tax Act. or any provision similar thereto. It is R. 9 of Sch. 1 which attracts the principle of apportionment. The rule enunciated in M/s. E. D. Sassoon and Co.s case, 1955-1 S C R 313 : (AIR 1954 S C 470) (supra) has therefore no application to this case, and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct. | 0[ds]10. The appellants maintained their books of account on cash basis and commission received from the company was credited after the accounts of the company were closed. The amounts received by the appellants from the company were included in their return and assessment for the year 1945-46 was completed for the purposes of the Excess Profits Tax by the Tax Officer without apportionment appropriate to the chargeable accounting periods. In so doing, the Tax Officer committed an error. He overlooked the fact that the chargeable accounting period for the assessment of Excess Profits Tax and the year of account of the company did not tally. Under S. 15 of the Excess Profits Tax Act, if the Tax Officer discovers, in consequence of definite information which has come into his possession that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment, or have been underassessed, he may serve on the person liable to pay such tax a notice containing all or any of the requirements which may be included in a notice under S. 13 and may proceed to assess or re-assess the profits. The provision is substantially similar to S. 34 (1) of the Income-tax Act before it was amended in the year 1948.It is manifest that by the assessment of income made on the assumption that the chargeable accounting period and the accounting period of the company tallied, there resulted under assessment in the computation of tax liability for Excess Profits Tax, and it was open to the Tax Officer to take action under S. 15 of the Excess Profits Tax Act11. Determination of the second question depends upon R. 9, Sch. 1, of the Excess Profits Tax Act. By S. 2 (19) of the Excess Profits Tax Act, the expression profits means profits as determined in accordance with Sch.. That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act; and by R. 912. The performance of the contract of managing agency extended beyond the period of account of the company which was July 1, 1945 to June 30, 1946 : it covered parts of two accounting periods. The Tax Officer was therefore obliged to apportion to the chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this, he proceeded to do. Counsel for the appellants contends that the contracts contemplated by R.9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit-making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period. It is true that remuneration was paid to the appellants after the expiry of the year of account of the company; but the contract was one the performance of which extended throughout the year of account of the company. The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year. It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract, The performance of the contract unmistakably cut across the accounting period is also manifest. The remuneration for performance of the contract is not computed at a daily rate, but is computed on a percentage of the commission on the profits of the company for the whole year, but on that account, the contract is not one in which performance does not extend throughout the year of account. Normally in a managing agency contract, the managing agent may not suffer loss, but that does not rule out the application of R. 9 to managing agency contracts. The terms in which R. 9 is enacted are general : the rule is applicable to all contracts which are intended to be operative for a fixed period. If, for the performance of the entire contract, remuneration is payable at rates stipulated, the profit earned out of that remuneration must be apportioned in the manner provided by R. 9 in the performance of the contract extends beyond the accounting periodThe Court was not called upon to apply to income received by the assessee the principle of apportionment under R. 9 of Sch. 1 of the Excess Profits Tax Act. or any provision similar thereto. It is R. 9 of Sch. 1 which attracts the principle of apportionment. The rule enunciated in M/s. E. D. Sassoon and Co.s case, 1955-1 S C R 313 : (AIR 1954 S C 470) (supra) has therefore no application to this case, and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct. | 0 | 2,430 | 881 | ### 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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computation of tax liability for Excess Profits Tax, and it was open to the Tax Officer to take action under S. 15 of the Excess Profits Tax Act. 11. Determination of the second question depends upon R. 9, Sch. 1, of the Excess Profits Tax Act. By S. 2 (19) of the Excess Profits Tax Act, the expression profits means profits as determined in accordance with Sch. 1. That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act; and by R. 9, it is provided in so far as it is material that : Where the performance of a contract extends beyond the accounting period, there shall (unless the Excess Profits Tax Officer, owing to any special circumstances, otherwise directs) be attributed to the accounting period such proportion of the entire profits or loss which has resulted, or which it is estimated will result, from the complete performance of the contract as is properly attributable to the accounting period, having regard to the extent to which the contract was performed therein. 12. The performance of the contract of managing agency extended beyond the period of account of the company which was July 1, 1945 to June 30, 1946 : it covered parts of two accounting periods. The Tax Officer was therefore obliged to apportion to the chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this, he proceeded to do. Counsel for the appellants contends that the contracts contemplated by R.9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit-making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period. It is true that remuneration was paid to the appellants after the expiry of the year of account of the company; but the contract was one the performance of which extended throughout the year of account of the company. The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year. It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract, The performance of the contract unmistakably cut across the accounting period is also manifest. The remuneration for performance of the contract is not computed at a daily rate, but is computed on a percentage of the commission on the profits of the company for the whole year, but on that account, the contract is not one in which performance does not extend throughout the year of account. Normally in a managing agency contract, the managing agent may not suffer loss, but that does not rule out the application of R. 9 to managing agency contracts. The terms in which R. 9 is enacted are general : the rule is applicable to all contracts which are intended to be operative for a fixed period. If, for the performance of the entire contract, remuneration is payable at rates stipulated, the profit earned out of that remuneration must be apportioned in the manner provided by R. 9 in the performance of the contract extends beyond the accounting period. 13. The judgment of this Court in E. D. Sassoon and Co., Ltd. v. Commr. of Income-Tax, Bombay City, 1955-1 S C R 313 : (AIR 1954 S C 470) on which strong reliance was placed by the appellants has no application to this case. In that case, M/s. E. D. Sassoon and Co., Ltd. who were managing agents of three different companies transferred the managing agencies to three other companies on several dates during the accounting year. A question arose in the computation of income-tax payable by M/s. E. D. Sassoon and Co., Ltd. whether the managing agency commission was liable to be apportioned between M/s E. D. Sassoon and Co., Ltd. and their respective transferees in the proportion of the services rendered as managing agents for the respective periods of the accounting year. It was held by this Court (Jagannadhadas, J. dissenting) that on a true interpretation of the managing agency agreements in each case, the contract of service between the companies and the managing agents was entire and indivisible and the remuneration or commission became due by the companies to the managing agents only on completion of definite periods of service and at stated intervals ; that complete performance was a condition precedent to the recovery of wages or salary in respect thereof and the remuneration payable constituted a debt only at the end of each period of service completely performed, no remuneration or commission being payable to the managing agents for broken periods; that no income was earned by or accrued to M/s E. D. Sassoon and Co., Ltd. and as the transfer of the agencies did not include any income which E. D. Sassoon and Co., Ltd., had earned, they were not liable to be taxed under the Income-Tax Act. But that was a case dealing with liability of the assesses who did not receive any income and to whom no income had accrued to pay income-tax on the amounts of remuneration paid to their transferees. The Court was not called upon to apply to income received by the assessee the principle of apportionment under R. 9 of Sch. 1 of the Excess Profits Tax Act. or any provision similar thereto. It is R. 9 of Sch. 1 which attracts the principle of apportionment. The rule enunciated in M/s. E. D. Sassoon and Co.s case, 1955-1 S C R 313 : (AIR 1954 S C 470) (supra) has therefore no application to this case, and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct.
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10. The appellants maintained their books of account on cash basis and commission received from the company was credited after the accounts of the company were closed. The amounts received by the appellants from the company were included in their return and assessment for the year 1945-46 was completed for the purposes of the Excess Profits Tax by the Tax Officer without apportionment appropriate to the chargeable accounting periods. In so doing, the Tax Officer committed an error. He overlooked the fact that the chargeable accounting period for the assessment of Excess Profits Tax and the year of account of the company did not tally. Under S. 15 of the Excess Profits Tax Act, if the Tax Officer discovers, in consequence of definite information which has come into his possession that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment, or have been underassessed, he may serve on the person liable to pay such tax a notice containing all or any of the requirements which may be included in a notice under S. 13 and may proceed to assess or re-assess the profits. The provision is substantially similar to S. 34 (1) of the Income-tax Act before it was amended in the year 1948.It is manifest that by the assessment of income made on the assumption that the chargeable accounting period and the accounting period of the company tallied, there resulted under assessment in the computation of tax liability for Excess Profits Tax, and it was open to the Tax Officer to take action under S. 15 of the Excess Profits Tax Act11. Determination of the second question depends upon R. 9, Sch. 1, of the Excess Profits Tax Act. By S. 2 (19) of the Excess Profits Tax Act, the expression profits means profits as determined in accordance with Sch.. That schedule sets out rules for computation of profits for the purpose of the Excess Profits Tax Act; and by R. 912. The performance of the contract of managing agency extended beyond the period of account of the company which was July 1, 1945 to June 30, 1946 : it covered parts of two accounting periods. The Tax Officer was therefore obliged to apportion to the chargeable accounting periods the entire profits resulting from the complete performance of the contract in proportions properly attributable to the accounting periods and this, he proceeded to do. Counsel for the appellants contends that the contracts contemplated by R.9 are those of the nature of engineering or works contracts and the like where execution of the contract involves a profit-making operation de die in diem and not contracts where remuneration is payable at a certain time for services performed throughout the stipulated period. It is true that remuneration was paid to the appellants after the expiry of the year of account of the company; but the contract was one the performance of which extended throughout the year of account of the company. The appellants were the managing agents of the company and they had to perform their duties as managing agents for the whole year. It is not disputed that the contract of agency for 20 years is to be regarded for assessment of excess profits tax as an annual contract, The performance of the contract unmistakably cut across the accounting period is also manifest. The remuneration for performance of the contract is not computed at a daily rate, but is computed on a percentage of the commission on the profits of the company for the whole year, but on that account, the contract is not one in which performance does not extend throughout the year of account. Normally in a managing agency contract, the managing agent may not suffer loss, but that does not rule out the application of R. 9 to managing agency contracts. The terms in which R. 9 is enacted are general : the rule is applicable to all contracts which are intended to be operative for a fixed period. If, for the performance of the entire contract, remuneration is payable at rates stipulated, the profit earned out of that remuneration must be apportioned in the manner provided by R. 9 in the performance of the contract extends beyond the accounting periodThe Court was not called upon to apply to income received by the assessee the principle of apportionment under R. 9 of Sch. 1 of the Excess Profits Tax Act. or any provision similar thereto. It is R. 9 of Sch. 1 which attracts the principle of apportionment. The rule enunciated in M/s. E. D. Sassoon and Co.s case, 1955-1 S C R 313 : (AIR 1954 S C 470) (supra) has therefore no application to this case, and the High Court was right in holding that the assessment made by the Excess Profits Tax Officer by apportionment of the commission income between the chargeable accounting periods was correct.
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The Tinnevelly-Tuticorin Electricsupply Co. Ltd., Vs. Its Workmen | (xi) by the appellate tribunal.If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is no conflict between the scheme of the Act and the claim made by the respondents in the present case.Incidentally, we may add that this point appears to have been conceded by the appellant before the appellate tribunal.We must accordingly hold that the appellate tribunal was right in coming to the conclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings.As we have already indicated, before the fuller bench reached this decision there was a conflict of opinion in the decision of the Labour Appellate Tribunals, but in view of our conclusion it is unnecessary to refer to the said earlier decisions. 17. That takes us to the merits of the award. The first point is in regard to the appellants claim for rehabilitation. Before the Labour Appellate Tribunal it was fairly conceded by the respondent that at least income- tax at seven annas in a rupee on the gross profits less depreciation, and also a contingency reserve of Rs. 6.047 have to be allowed in arriving at the figure of net available surplus for the purpose of bonus payable to the respondents ; and that in regard to normal statutory depreciation the correct figure must be taken to be Rs. 99,038 instead of Rs. 90,393 as given by the industrial tribunal. Then, as to the rehabilitation the appellant has led no evidence at all and so the appellate tribunal refused to grant any sum by way of rehabilitation in addition to the total amount of Rs. 1,13,950. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2.7 for all assets purchased before 1945 was not justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do not see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence. 18. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is no dispute in respect of it; but it is urged that Rule 8 of the Income-tax Rules justifies the appellants claim in respect of all its electric plant and machinery under Entry IIIE (1). Rule 8 provides that the allowance under S. 10 (2) (vi) of the Act in respect of depreciation of buildings, machinery, plant of furniture shall be a percentage of the written down value or original cost, as the case may be, equal to one-twelfth the number shown in the corresponding entry in the second column of the following statement. There are two provisos to this rule which it is not necessary to set out. The appellant makes a claim under IIIE (1) which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC (4) and (5) which respectively deal with underground cables and wires and overhead cables and wires. The argument for the respondents is that in respect of these items the appellants claim is inadmissible. In support of this argument the respondents rely upon the remark against item 3 on page8 of the Rules. This remark would show that the benefit claimed by the appellant does not apply to an item of machinery or plant specifically excepted by the letters N, E, S, A being shown against it. These letters are the contraction of the expression No Extra Shift Allowance. There is no doubt that these letters are to be found against item in IIIC (4) and (5). Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE (1) or IIIC (4) and (5). The appellate tribunal has observed that the appellant made no attempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE (1) it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC (4) and (5). Besides, the appellate tribunal was not satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw no reason why the appellant should be allowed any extra shift depreciation in respect of under ground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was, therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge ; and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has not been placed before it by the appellant on which the claim could be examined and granted. In such a case we do not see how we can interfere in favour of the appellant. The present decision will not preclude the appellant from making a similar claim in future and justifying it by leading proper evidence. | 0[ds]The Act is a self- contained code intended to regulate the business and affairs of electricity concerns including the claim of their employees for bonus, and as such an industrial dispute between such concerns and their employees in regard to bonus must be determined solely by reference to the provisions of the Act and not by the application of the Full Bench formula, As to the quantum of bonus which should be awarded it would depend upon the circumstances in each case;12. It would thus be clear that the provisions of the Act in general and those of the Sixth Schedule in particular, are no doubt intended to control and regulate the rates chargeable to consumers and to provide the method and the machinery by which the electrical system of the country could be properly co-ordinated and integrated. The rates chargeable are fixed, so is a reasonable return provided for. But it is not as if the Act intends to guarantee a minimum return to the undertaking. What it purports to do is to prohibit a return higher than the one specifiedThere is really no conflict between the Act and the principles of industrial adjudication. In fact they cover different fields and their relevance and validity is beyond question in their respective fields14. As we have just indicated the method of accounting required by the Act in preparing the working-sheet is substantially different from the commercial method of accounting which yields the gross, profits in the form of profit and loss account.Determination of gross profit is the first step which industrial tribunals take in applying the Full Bench formula. Such gross profit cannot be ascertained from the working-sheet prepared under the Act. It is not denied that the appellant has to keep accounts under the Companies Act on a commercial basis. That being so, in dealing with the respondents claim for bonus, it is the balance-sheet and the profit and loss account prepared by the appellant that must be taken as the basis in the present proceedings, and that is precisely what the tribunals below have done.Therefore, we are satisfied that the Labour Appellate Tribunal was right in coming to the conclusion that the respondents claim for bonus must be governed by the application of the Full Bench formula. In our opinion, it is difficult to accept the appellants argument that the construction placed by the appellate tribunal on the latter part of this clause is not reasonably possibleAfter the insertion of this clause there can be no doubt that the amount paid by the employer to his employees by way of bonus would definitely be admissible expenditure under paragraph 17 (2)(b). In our opinion the insertion of this clause can be more reasonably explained on the assumption that the Legislature has thereby clarified its original intention. Even when cl. (xi) was enacted the intention was to include claims of bonus under expenses covered by the said clause, but in order to remove any possible doubt the Legislature thought it better to provide specifically for bonus under a separate category. Otherwise, it is difficult to appreciate how contributions to Provident Fund were treated as admissible expenditure all the time since they were covered by cl. (xii) and bonus could not have been treated as admissible expenditure under cl. (xi). That is why we are on the whole prepared to agree with the construction put upon cl. (xi) by the appellate tribunal.If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is no conflict between the scheme of the Act and the claim made by the respondents in the present case.Incidentally, we may add that this point appears to have been conceded by the appellant before the appellate tribunal.We must accordingly hold that the appellate tribunal was right in coming to the conclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings.As we have already indicated, before the fuller bench reached this decision there was a conflict of opinion in the decision of the Labour Appellate Tribunals, but in view of our conclusion it is unnecessary to refer to the said earlier decisions. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2.7 for all assets purchased before 1945 was not justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do not see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence18. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is no dispute in respect of it. There are two provisos to this rule which it is not necessary to set out. The appellant makes a claim under IIIE (1) which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC (4) and (5) which respectively deal with underground cables and wires and overhead cables and wiresThere is no doubt that these letters are to be found against item in IIIC (4) and (5). Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE (1) or IIIC (4) and (5). The appellate tribunal has observed that the appellant made no attempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE (1) it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC (4) and (5). Besides, the appellate tribunal was not satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw no reason why the appellant should be allowed any extra shift depreciation in respect of under ground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was, therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge ; and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has not been placed before it by the appellant on which the claim could be examined and granted. In such a case we do not see how we can interfere in favour of the appellant. The present decision will not preclude the appellant from making a similar claim in future and justifying it by leading proper evidence. | 0 | 6,192 | 1,357 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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(xi) by the appellate tribunal.If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is no conflict between the scheme of the Act and the claim made by the respondents in the present case.Incidentally, we may add that this point appears to have been conceded by the appellant before the appellate tribunal.We must accordingly hold that the appellate tribunal was right in coming to the conclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings.As we have already indicated, before the fuller bench reached this decision there was a conflict of opinion in the decision of the Labour Appellate Tribunals, but in view of our conclusion it is unnecessary to refer to the said earlier decisions. 17. That takes us to the merits of the award. The first point is in regard to the appellants claim for rehabilitation. Before the Labour Appellate Tribunal it was fairly conceded by the respondent that at least income- tax at seven annas in a rupee on the gross profits less depreciation, and also a contingency reserve of Rs. 6.047 have to be allowed in arriving at the figure of net available surplus for the purpose of bonus payable to the respondents ; and that in regard to normal statutory depreciation the correct figure must be taken to be Rs. 99,038 instead of Rs. 90,393 as given by the industrial tribunal. Then, as to the rehabilitation the appellant has led no evidence at all and so the appellate tribunal refused to grant any sum by way of rehabilitation in addition to the total amount of Rs. 1,13,950. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2.7 for all assets purchased before 1945 was not justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do not see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence. 18. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is no dispute in respect of it; but it is urged that Rule 8 of the Income-tax Rules justifies the appellants claim in respect of all its electric plant and machinery under Entry IIIE (1). Rule 8 provides that the allowance under S. 10 (2) (vi) of the Act in respect of depreciation of buildings, machinery, plant of furniture shall be a percentage of the written down value or original cost, as the case may be, equal to one-twelfth the number shown in the corresponding entry in the second column of the following statement. There are two provisos to this rule which it is not necessary to set out. The appellant makes a claim under IIIE (1) which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC (4) and (5) which respectively deal with underground cables and wires and overhead cables and wires. The argument for the respondents is that in respect of these items the appellants claim is inadmissible. In support of this argument the respondents rely upon the remark against item 3 on page8 of the Rules. This remark would show that the benefit claimed by the appellant does not apply to an item of machinery or plant specifically excepted by the letters N, E, S, A being shown against it. These letters are the contraction of the expression No Extra Shift Allowance. There is no doubt that these letters are to be found against item in IIIC (4) and (5). Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE (1) or IIIC (4) and (5). The appellate tribunal has observed that the appellant made no attempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE (1) it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC (4) and (5). Besides, the appellate tribunal was not satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw no reason why the appellant should be allowed any extra shift depreciation in respect of under ground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was, therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge ; and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has not been placed before it by the appellant on which the claim could be examined and granted. In such a case we do not see how we can interfere in favour of the appellant. The present decision will not preclude the appellant from making a similar claim in future and justifying it by leading proper evidence.
### Response:
0
### Explanation:
and loss account.Determination of gross profit is the first step which industrial tribunals take in applying the Full Bench formula. Such gross profit cannot be ascertained from the working-sheet prepared under the Act. It is not denied that the appellant has to keep accounts under the Companies Act on a commercial basis. That being so, in dealing with the respondents claim for bonus, it is the balance-sheet and the profit and loss account prepared by the appellant that must be taken as the basis in the present proceedings, and that is precisely what the tribunals below have done.Therefore, we are satisfied that the Labour Appellate Tribunal was right in coming to the conclusion that the respondents claim for bonus must be governed by the application of the Full Bench formula. In our opinion, it is difficult to accept the appellants argument that the construction placed by the appellate tribunal on the latter part of this clause is not reasonably possibleAfter the insertion of this clause there can be no doubt that the amount paid by the employer to his employees by way of bonus would definitely be admissible expenditure under paragraph 17 (2)(b). In our opinion the insertion of this clause can be more reasonably explained on the assumption that the Legislature has thereby clarified its original intention. Even when cl. (xi) was enacted the intention was to include claims of bonus under expenses covered by the said clause, but in order to remove any possible doubt the Legislature thought it better to provide specifically for bonus under a separate category. Otherwise, it is difficult to appreciate how contributions to Provident Fund were treated as admissible expenditure all the time since they were covered by cl. (xii) and bonus could not have been treated as admissible expenditure under cl. (xi). That is why we are on the whole prepared to agree with the construction put upon cl. (xi) by the appellate tribunal.If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is no conflict between the scheme of the Act and the claim made by the respondents in the present case.Incidentally, we may add that this point appears to have been conceded by the appellant before the appellate tribunal.We must accordingly hold that the appellate tribunal was right in coming to the conclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings.As we have already indicated, before the fuller bench reached this decision there was a conflict of opinion in the decision of the Labour Appellate Tribunals, but in view of our conclusion it is unnecessary to refer to the said earlier decisions. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2.7 for all assets purchased before 1945 was not justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do not see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence18. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is no dispute in respect of it. There are two provisos to this rule which it is not necessary to set out. The appellant makes a claim under IIIE (1) which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC (4) and (5) which respectively deal with underground cables and wires and overhead cables and wiresThere is no doubt that these letters are to be found against item in IIIC (4) and (5). Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE (1) or IIIC (4) and (5). The appellate tribunal has observed that the appellant made no attempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE (1) it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC (4) and (5). Besides, the appellate tribunal was not satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw no reason why the appellant should be allowed any extra shift depreciation in respect of under ground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was, therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge ; and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has not been placed before it by the appellant on which the claim could be examined and granted. In such a case we do not see how we can interfere in favour of the appellant. The present decision will not preclude the appellant from making a similar claim in future and justifying it by leading proper evidence.
|
UNIVERSITY OF DELHI Vs. DELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS | follows: (SCC pp. 250-51, paras 9-11) 9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered. 11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure. 7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid. 10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case. 11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter. 12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection. | 1[ds]7. The decision of the Constitution Bench of this Court in Umadevi (2006) 4 SCC 1 was pronounced on 10.04.2006 by which time, the earliest contract employees had put in only 3-4 years of service and most of the contract employees were engaged after the decision in Umadevi (2006) 4 SCC 1. In paragraphs 47, 49 and 53 of the decision in Umadevi (2006) 4 SCC 1 , this Court stated:-47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.… … …49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.… … …53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa AIR 1967 SC 1071 , R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.9. All the decisions relied upon by Mr. Colin Gonsalves, learned Senior Advocate were by Benches of two Judges of this Court and in each of those cases, the concerned employees had put in more than 10 years of service and could claim benefit in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. In the last of those decisions i.e. in Narendra Kumar Tiwari (2018) 8 SCC 238 , the submission was that the employees had not put in more than 10 years of service with the newly created State of Jharkhand and, therefore, there was no entitlement in terms of the decision in Umadevi (2006) 4 SCC 1. Relying on the concept of one-time measure elaborated in M.L. Kesari (2010) 9 SCC 247 [Paras 7 & 8], it was observed:-3. The appellants had contended before the High Court that the State of Jharkhand was created only on 15-11-2000 and therefore no one could have completed 10 years of ser- vice with the State of Jharkhand on the cut-off date of 10- 4-2006. Therefore, no one could get the benefit of the Reg- ularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18-7- 2009 and 19-7-2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State. Consequently, it was sub- mitted that the appellants were discriminated against for no fault of theirs and in an irrational manner.… … …6. The concept of a one-time measure was further ex- plained in Kesari (2010) 9 SCC 247 [Paras 7 & 8] in paras 9, 10 and 11 of the Report which read as follows: (SCC pp. 250-51, paras 9-11)9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered.11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure.7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid.10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case.11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter.12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection. | 1 | 6,137 | 2,247 | ### 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:
follows: (SCC pp. 250-51, paras 9-11) 9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered. 11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure. 7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid. 10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case. 11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter. 12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.
### Response:
1
### Explanation:
department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered.11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure.7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid.10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case.11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter.12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.
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Chief Secretary To Government of Andhra Pradesh and Another Vs. V.J. Cornelius Etc | of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that sub-r. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of sub-r. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of the time-scale fi xed for the Selection Grade of Deputy Tahsildars. According to him, sub-r. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed: To put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment.The appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by sub-r. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action. 5. This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub-r. (2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade. There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected. 6. The Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costs. 7. | 0[ds]This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub-r. (2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade. There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affectedThe Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costswhether the Government is competent to withhold the Selection Grades contrary to FR 22(a) (ii) to which the respondents were entitled on their being appointed to Selection Grade posts4. In D. Krishnamurthy &Ors. v. State of Andhra Pradesh &Anr. (Wr it Petition No. 4459 of 1972), Muktadar, J., by his judgment dated August 12, 1974, struck down the rule as it was violative of Arts. 14 and 16 of the Constitution. The learned Judge observed that in view of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of thee fi xed for the Selection Grade of Deputy Tahsildars. According to him,. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed:o put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of publice appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action. | 0 | 2,566 | 1,207 | ### Instruction:
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of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that sub-r. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of sub-r. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of the time-scale fi xed for the Selection Grade of Deputy Tahsildars. According to him, sub-r. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed: To put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment.The appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by sub-r. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action. 5. This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub-r. (2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade. There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected. 6. The Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costs. 7.
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of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affectedThe Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costswhether the Government is competent to withhold the Selection Grades contrary to FR 22(a) (ii) to which the respondents were entitled on their being appointed to Selection Grade posts4. In D. Krishnamurthy &Ors. v. State of Andhra Pradesh &Anr. (Wr it Petition No. 4459 of 1972), Muktadar, J., by his judgment dated August 12, 1974, struck down the rule as it was violative of Arts. 14 and 16 of the Constitution. The learned Judge observed that in view of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of thee fi xed for the Selection Grade of Deputy Tahsildars. According to him,. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed:o put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of publice appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action.
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Rameshwar Prasad Vs. State of Bihar and Others | FAZAL ALI, J. 1. This petition under Article 32 has been filed against the order of the Governor of Bihar accepting recommendations of the High Court and superseding the petitioner Rameshwar Prasad by promoting other subordinate Judges as Additional District Judge, Mr. Sarjoo Prasad appearing in support of the petitioner mainly raised two points before us. In the first place it was contended that the judicial career of the petitioner was without any blemish and there was nothing against him to justify his supersession when the High Court recommended the case of promotion of the Sub-Judges for appointment as Additional District Judge and hence the order impugned is violative of Article 16 of the Constitution. There is, how- ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered fit for promotion by the High Court, hence his case was not recommended for promotion as Additional District Judge. In this view of the matter it is manifest that Article 16 cannot be violated because the petitioners case for promotion was fully considered by the High Court and the Government and then it was decided not to promote him. All that Art. 16 requires is that the case of employees similarly situate and eligible for promotion must be considered before others are promoted. If it was established that the petitioners case was not considered at all and persons junior to him were promoted with- out any reason, then something could be said in support of the petitioners case. It would appear from the affidavit filed by the High Court that the Government considered the case of the petitioner. The averment in para 14 of the affidavit filed by the High Court runs:"It is incorrect to say that there was any departure from any common usual practice in sending the second proposal though final orders on the first proposal were not passed by the State Government specially in the context that at the time of sending the second proposal this Respondent came to a definite conclusion that the work and conduct of the petitioner was such that he should not be recommended for promotion unless he showed improvement in his conduct." 2. Further more at page 85 of Annexure I it is clearly mentioned that the Court has recommended the case of other Sub-Judges after considering the case of the concerned appellant Mr. Rameshwar Prasad and it is also established that the Government concurred with the recommendation of the High Court. Although Mr. Prasad submitted that the petitioner had an unblemished career, there are enough materials on the record to show that this is not correct. Thus the petitioner and other Sub-Judges not being similarly situate as being of equal merit the question of discrimination or infraction of Article 14 of the Constitution also does not arise. At any rate, since the High Court is the best Judge of the performance of its officers and if the High Court was not satisfied about the suitability of the petitioner having regard to his past record, for promotion, Art. 16 is not attracted and this Court would not, therefore, interfere at his stage. Secondly, it was faintly suggested that there was a colour of malice in the recommendation by the Court but no such clear plea has been taken in the petition or proved in the affidavit filed by the petitioner. In these circumstances, we cannot take any notice of such an allegation. 3. | 0[ds]There is, how- ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered fit for promotion by the High Court, hence his case was not recommended for promotion as Additional District Judge. In this view of the matter it is manifest that Article 16 cannot be violated because the petitioners case for promotion was fully considered by the High Court and the Government and then it was decided not to promote him. All that Art. 16 requires is that the case of employees similarly situate and eligible for promotion must be considered before others are promoted. If it was established that the petitioners case was not considered at all and persons junior to him were promoted with- out any reason, then something could be said in support of the petitioners case. It would appear from the affidavit filed by the High Court that the Government considered the case of the petitionerThus the petitioner and other Sub-Judges not being similarly situate as being of equal merit the question of discrimination or infraction of Article 14 of the Constitution also does not arise. At any rate, since the High Court is the best Judge of the performance of its officers and if the High Court was not satisfied about the suitability of the petitioner having regard to his past record, for promotion, Art. 16 is not attracted and this Court would not, therefore, interfere atIn these circumstances, we cannot take any notice of such an allegation. | 0 | 625 | 284 | ### Instruction:
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FAZAL ALI, J. 1. This petition under Article 32 has been filed against the order of the Governor of Bihar accepting recommendations of the High Court and superseding the petitioner Rameshwar Prasad by promoting other subordinate Judges as Additional District Judge, Mr. Sarjoo Prasad appearing in support of the petitioner mainly raised two points before us. In the first place it was contended that the judicial career of the petitioner was without any blemish and there was nothing against him to justify his supersession when the High Court recommended the case of promotion of the Sub-Judges for appointment as Additional District Judge and hence the order impugned is violative of Article 16 of the Constitution. There is, how- ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered fit for promotion by the High Court, hence his case was not recommended for promotion as Additional District Judge. In this view of the matter it is manifest that Article 16 cannot be violated because the petitioners case for promotion was fully considered by the High Court and the Government and then it was decided not to promote him. All that Art. 16 requires is that the case of employees similarly situate and eligible for promotion must be considered before others are promoted. If it was established that the petitioners case was not considered at all and persons junior to him were promoted with- out any reason, then something could be said in support of the petitioners case. It would appear from the affidavit filed by the High Court that the Government considered the case of the petitioner. The averment in para 14 of the affidavit filed by the High Court runs:"It is incorrect to say that there was any departure from any common usual practice in sending the second proposal though final orders on the first proposal were not passed by the State Government specially in the context that at the time of sending the second proposal this Respondent came to a definite conclusion that the work and conduct of the petitioner was such that he should not be recommended for promotion unless he showed improvement in his conduct." 2. Further more at page 85 of Annexure I it is clearly mentioned that the Court has recommended the case of other Sub-Judges after considering the case of the concerned appellant Mr. Rameshwar Prasad and it is also established that the Government concurred with the recommendation of the High Court. Although Mr. Prasad submitted that the petitioner had an unblemished career, there are enough materials on the record to show that this is not correct. Thus the petitioner and other Sub-Judges not being similarly situate as being of equal merit the question of discrimination or infraction of Article 14 of the Constitution also does not arise. At any rate, since the High Court is the best Judge of the performance of its officers and if the High Court was not satisfied about the suitability of the petitioner having regard to his past record, for promotion, Art. 16 is not attracted and this Court would not, therefore, interfere at his stage. Secondly, it was faintly suggested that there was a colour of malice in the recommendation by the Court but no such clear plea has been taken in the petition or proved in the affidavit filed by the petitioner. In these circumstances, we cannot take any notice of such an allegation. 3.
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There is, how- ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered fit for promotion by the High Court, hence his case was not recommended for promotion as Additional District Judge. In this view of the matter it is manifest that Article 16 cannot be violated because the petitioners case for promotion was fully considered by the High Court and the Government and then it was decided not to promote him. All that Art. 16 requires is that the case of employees similarly situate and eligible for promotion must be considered before others are promoted. If it was established that the petitioners case was not considered at all and persons junior to him were promoted with- out any reason, then something could be said in support of the petitioners case. It would appear from the affidavit filed by the High Court that the Government considered the case of the petitionerThus the petitioner and other Sub-Judges not being similarly situate as being of equal merit the question of discrimination or infraction of Article 14 of the Constitution also does not arise. At any rate, since the High Court is the best Judge of the performance of its officers and if the High Court was not satisfied about the suitability of the petitioner having regard to his past record, for promotion, Art. 16 is not attracted and this Court would not, therefore, interfere atIn these circumstances, we cannot take any notice of such an allegation.
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Member, Board of Revenue, West Bengal Vs. Messrs Phelps and Company Private Limited | assessee company. The assessee informed the High Court that it did not want any answer to the third question. The High Court answered question Nos. (i) and (ii) in favour of the assessee company. Aggrieved by that order the Board of Revenue has come up in appeal to this court.2. The material facts are these :Messrs. Phelps & Co. (Private) Ltd., the assessee is a company incorporated under the Indian Companies Act, 1913 having its Registered Office in New Delhi. It is carrying on business, amongst other places, at Calcutta. It was registered as a dealer under the Bengal Finance (Sales Tax) Act., 1941 and was carrying on the business of tailors, drapers, out-fitters and industrial gloves manufacturers.3. In respect of the assessment for the 4 quarters ending on the 31st March, 1957 the said dealer in its claim for exemption under section 5 (2)(a)(ii) of the Act, included the following transactions :-(1) Sales to M/s. The Indian Iron and Steel Co. Ltd. for Rs. 51, 554-8-0.(2) Sales to M/s. Indian Standard Wagon Co. Ltd. for Rs. 20, 150-1-0.(4) Sales to M/s. The Hoogly Docking & Engineering Co. Ltd. for Rs. 546-2-0. The Commercial Tax Officer, Esplandde Charge, who assessed the dealer found that the above transactions related to the sales of different types of hand gloves which the purchasing dealers purchased for the purpose of the same being used by their workers while being engaged in work in the factories. He by his order, dated 4th December, 1957 observed that the purchase of hand gloves could not be called as being required for the purpose of manufacture of goods for sale, and, accordingly, disallowed the dealers claim for exemption of Rs. 72, 250-11-0. That order was affirmed by the Assistant Commissioner of Commercial Taxes in appeal as well as by the Board of Revenue. Thereafter the assessee company filed a petition under section 21(1) of the Act asking the Board of Revenue to refer certain question of law to the High Court. The Board refused to refer those questions. Dissatisfied by the order of the Board, the dealer moved the High Court of Calcutta under section 21(2) of the Act for direction to the Board to state a case. The High Court accepted that petition and directed the Board to state the case and submit the questions that the assessee company wanted it to submit to the High Court. The Board accordingly stated a case and submitted the following three questions :(i) "Whether gloves put on by the purchasing Companies workmen engaged in hot jobs or in handling corrosive substances in the course of manufacture can be stated to have used in the manufacture of goods for sale as under-stood by the provisions of section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941."(ii) "Whether the item mill stores appearing in the certificate of registration of the Indian Iron & Steel Company Ltd., covers gloves."(iii) "Whether a selling dealer claiming exemption under section 5 (2) (a)(ii) of the Bengal Finance (Sales Tax) Act, 1941 read with Rule 27A of the Bengal Sales Tax Rules, 1941 is required to ascertain after receipt of a declaration in Statutory from No. XXIV from a purchasing registered dealer if the latters certificate of registration covers the goods purchased."4. As mentioned earlier the assessee company did not want the High Court to answer No. (iii). Hence it is not necessary for us to go into that question.5. The only point that we have got to decide is whether the assessee company is entitled to the exemption asked for by it. Section 5(2) to the extent relevant for our present purposes reads :"5. (2) In this Act the expression taxable turnover means in the case of a dealer who is liable to pay tax under section 4, that part of his gross turnover during any period which remains after deducting therefrom :(a) his turnover during the period on :(i) X X X(ii) sales to a registered dealer of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for resale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract."6. We have now to find out what exactly is the meaning of the expression "for use by him in the manufacture of goods for sale". Identical words are used in section 8(b) of the Central Sales Tax Act, 1956. This court was called upon to find out the scope of that expression in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs. Sales tax Officer, Kanpur and Another(I). Dealing with that expression this court observed :"The expression in the manufacture of goods" would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process is so integrally connected with the ultimate production of goods but for that process, manufacture or processing of goods would be commercially inexpendient, goods required in that process would, in our judgment, fall within the expression "in the manufacture of goods."In the present case the assessee company has sold the goods in question to certain manufacturers who were manufacturing iron steel materials. It is also clear from question No. (i) that those gloves were to be used by workmen who were engaged in hot jobs or in handling corrosive substance in the course of manufacture. That being so it cannot be denied that those gloves had to be used in the course of manufacture.7. Mr. B. Sen, learned counsel for the Board of Revenue, contended that section 5(2)(a)(ii) takes in only such goods which are actually used in the manufacture and those goods which are used in the course of manufacture. It is not necessary for us to examine that contention in view of the decision of this court to which we have already made a reference. We are bound by the notion of that decision. | 1[ds]In the present case the assessee company has sold the goods in question to certain manufacturers who were manufacturing iron steel materials. It is also clear from question No. (i) that those gloves were to be used by workmen who were engaged in hot jobs or in handling corrosive substance in the course of manufacture. That being so it cannot be denied that those gloves had to be used in the course of manufacture.7. Mr. B. Sen, learned counsel for the Board of Revenue, contended that section 5(2)(a)(ii) takes in only such goods which are actually used in the manufacture and those goods which are used in the course of manufacture. It is not necessary for us to examine that contention in view of the decision of this court to which we have already made a reference. We are bound by the notion of that decision. | 1 | 1,291 | 171 | ### Instruction:
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assessee company. The assessee informed the High Court that it did not want any answer to the third question. The High Court answered question Nos. (i) and (ii) in favour of the assessee company. Aggrieved by that order the Board of Revenue has come up in appeal to this court.2. The material facts are these :Messrs. Phelps & Co. (Private) Ltd., the assessee is a company incorporated under the Indian Companies Act, 1913 having its Registered Office in New Delhi. It is carrying on business, amongst other places, at Calcutta. It was registered as a dealer under the Bengal Finance (Sales Tax) Act., 1941 and was carrying on the business of tailors, drapers, out-fitters and industrial gloves manufacturers.3. In respect of the assessment for the 4 quarters ending on the 31st March, 1957 the said dealer in its claim for exemption under section 5 (2)(a)(ii) of the Act, included the following transactions :-(1) Sales to M/s. The Indian Iron and Steel Co. Ltd. for Rs. 51, 554-8-0.(2) Sales to M/s. Indian Standard Wagon Co. Ltd. for Rs. 20, 150-1-0.(4) Sales to M/s. The Hoogly Docking & Engineering Co. Ltd. for Rs. 546-2-0. The Commercial Tax Officer, Esplandde Charge, who assessed the dealer found that the above transactions related to the sales of different types of hand gloves which the purchasing dealers purchased for the purpose of the same being used by their workers while being engaged in work in the factories. He by his order, dated 4th December, 1957 observed that the purchase of hand gloves could not be called as being required for the purpose of manufacture of goods for sale, and, accordingly, disallowed the dealers claim for exemption of Rs. 72, 250-11-0. That order was affirmed by the Assistant Commissioner of Commercial Taxes in appeal as well as by the Board of Revenue. Thereafter the assessee company filed a petition under section 21(1) of the Act asking the Board of Revenue to refer certain question of law to the High Court. The Board refused to refer those questions. Dissatisfied by the order of the Board, the dealer moved the High Court of Calcutta under section 21(2) of the Act for direction to the Board to state a case. The High Court accepted that petition and directed the Board to state the case and submit the questions that the assessee company wanted it to submit to the High Court. The Board accordingly stated a case and submitted the following three questions :(i) "Whether gloves put on by the purchasing Companies workmen engaged in hot jobs or in handling corrosive substances in the course of manufacture can be stated to have used in the manufacture of goods for sale as under-stood by the provisions of section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941."(ii) "Whether the item mill stores appearing in the certificate of registration of the Indian Iron & Steel Company Ltd., covers gloves."(iii) "Whether a selling dealer claiming exemption under section 5 (2) (a)(ii) of the Bengal Finance (Sales Tax) Act, 1941 read with Rule 27A of the Bengal Sales Tax Rules, 1941 is required to ascertain after receipt of a declaration in Statutory from No. XXIV from a purchasing registered dealer if the latters certificate of registration covers the goods purchased."4. As mentioned earlier the assessee company did not want the High Court to answer No. (iii). Hence it is not necessary for us to go into that question.5. The only point that we have got to decide is whether the assessee company is entitled to the exemption asked for by it. Section 5(2) to the extent relevant for our present purposes reads :"5. (2) In this Act the expression taxable turnover means in the case of a dealer who is liable to pay tax under section 4, that part of his gross turnover during any period which remains after deducting therefrom :(a) his turnover during the period on :(i) X X X(ii) sales to a registered dealer of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for resale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract."6. We have now to find out what exactly is the meaning of the expression "for use by him in the manufacture of goods for sale". Identical words are used in section 8(b) of the Central Sales Tax Act, 1956. This court was called upon to find out the scope of that expression in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs. Sales tax Officer, Kanpur and Another(I). Dealing with that expression this court observed :"The expression in the manufacture of goods" would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process is so integrally connected with the ultimate production of goods but for that process, manufacture or processing of goods would be commercially inexpendient, goods required in that process would, in our judgment, fall within the expression "in the manufacture of goods."In the present case the assessee company has sold the goods in question to certain manufacturers who were manufacturing iron steel materials. It is also clear from question No. (i) that those gloves were to be used by workmen who were engaged in hot jobs or in handling corrosive substance in the course of manufacture. That being so it cannot be denied that those gloves had to be used in the course of manufacture.7. Mr. B. Sen, learned counsel for the Board of Revenue, contended that section 5(2)(a)(ii) takes in only such goods which are actually used in the manufacture and those goods which are used in the course of manufacture. It is not necessary for us to examine that contention in view of the decision of this court to which we have already made a reference. We are bound by the notion of that decision.
### Response:
1
### Explanation:
In the present case the assessee company has sold the goods in question to certain manufacturers who were manufacturing iron steel materials. It is also clear from question No. (i) that those gloves were to be used by workmen who were engaged in hot jobs or in handling corrosive substance in the course of manufacture. That being so it cannot be denied that those gloves had to be used in the course of manufacture.7. Mr. B. Sen, learned counsel for the Board of Revenue, contended that section 5(2)(a)(ii) takes in only such goods which are actually used in the manufacture and those goods which are used in the course of manufacture. It is not necessary for us to examine that contention in view of the decision of this court to which we have already made a reference. We are bound by the notion of that decision.
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Gajanand & Others Vs. State of Uttar Pradesh | various terms of imprisonment. He also convicted them under Section 302/149, I.P.C. and sentenced each of them to transportation for life but as in the opinion of the Sessions Judge Lalji had caused the fatal injury to Sukkhu with a gandasa, he passed a capital sentence against him. In the cross case all the accused were acquitted on the finding that the prosecution story was inherently improbable and unworthy of acceptance.The five persons convicted on the side of Anjaninandan appealed to the High Court, while the Government filed an appeal against the order of acquittal. The High Court acquitted Lalji and another by giving them the benefit of doubt but maintained the conviction and sentence of the other accused under the various charges. In the appeal filed by the State four persons Gajanand, Dasu, Bathe, and Chammar were convicted. They were sentenced under section147, I.P.C. to two years R.I. and under section 324/149 and 323/149, I.P.C. to three years R.I. each, the sentences to run concurrently. Both parties obtained special leave.4. We take up the appeal of Gajanand and others first. The High Court after consideration of the evidence and the circumstances of the case recorded the finding that the incident occurred at the time when the Nepali pilgrim was being entertained by Gajanand and that the immediate cause of the riot was the dispute raised by Anjaninandan that he was entitled to a share of the offerings made by him. The High Court further found that the version of Anjaninandans party that Gajanands party attacked him and his party at Chunawali-Marhi where the Daswan Ceremony was being performed was incredible. On the contrary it was established to their satisfaction that the fight took place in the narrow path or lane as stated by Gajanands group.In coming to his conclusion the learned Judges were influenced, not unnaturally, by the existence of blood marks in the narrow path and their complete absence at Chunawali-Marhi. After having recorded these findings the High Court went on to observe"It seems the dispute arose between Raghunath Dube and Gajanands men who were on the takhat, while Gajanand was at the Ghat below; and in view of the longstanding enmity between the two groups, it provided them with an opportunity to fight, upon which they were predetermined. Gajanands men moved from their place, that is from near Gajanands takhat and the complainants party moved from the place where the Daswan ceremony was being performed. Both the parties had armed themselves with deadly weapons and fought. None could be said to have acted in self defence."5. Mr. Sethi on behalf of the appellants contends that this observation is inconsistent with the previous finding and the High Court made out a new case in appeal which was neither set up by the other side nor found by the Sessions Judge. If the story that Gajanand accompanied by 14 persons, went from his Takhat to launch an attack on Anjaninandans group at Chuna-wali-Marhi is found to be untrue and rejected, and the contrary version that the fight took place at the narrow path is accepted, it follows as a necessary consequence that Anjaninandans party were the aggressors and Gajanands party acted in self-defence.The observations of the High Court that Gajanands men moved from their place, that is from near Gajanands takhat and that the other side having similarly moved from the place where the Dasawan ceremony was being performed in order to have a free fight, is based upon mere conjecture and has no. admissible evidence to support it. A free fight according to Harrison J. in --- Ahmad Sher v. Emperor, AIR 1931 Lah 513 (A), is"When both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders".There can be no. question of a free fight in the present case, as there is a clear finding of the High Court that Anjaninandans party were the aggressors.Having regard to the finding reached by the High Court that the riot took place at the narrow path as a result of the dispute about the Nepali pilgrim and the further fact that Gajanands party received more numerous injuries one of which was fatal, it is obvious that Gajanands party cannot be said to have constituted an unlawful assembly. Gajanands party was engaged in the peaceful pursuit of worship at their own takhat and was busy attending to the Puja for the Nepali pilgrim. It is not suggested that at that point of time they were members of an unlawful assembly. There is no. material to justify the conclusion that they became members of the unlawful assembly at any time thereafter.It was the party of Anjaninandan who left their place and came to Gajanands takhat, presumably raising a dispute over the offerings made by the Nepali pilgrim. They came armed with deadly weapons and one of them inflicted a sever blow on Sukku which resulted in his death and other received as many as 27 serious injuries. In these circumstances it is not possible to suggest that both parties were pre-determined for a trial of strength and had a free fight. Gajanands party were the worst suffered and though they also inflicted injuries on the other side, they did so in the exercise of their right of self-defence. Learned counsel for the State was unable to point to any material on the record to show that Gajanands party which was lawful in its inception became unlawful afterwards and we hold, therefore, that the conviction and sentence of Gajanand and his associates cannot be sustained under Section 147 and Sections 324/149 and 323/149, I.P.C.These appellants had been acquitted by the Session Judge but were convicted by the High Court on appeal by the State. We are of opinion that this was hardly a case for interference with the order of acquittal. | 1[ds]Having regard to the finding reached by the High Court that the riot took place at the narrow path as a result of the dispute about the Nepali pilgrim and the further fact that Gajanands party received more numerous injuries one of which was fatal, it is obvious that Gajanands party cannot be said to have constituted an unlawful assembly. Gajanands party was engaged in the peaceful pursuit of worship at their own takhat and was busy attending to the Puja for the Nepali pilgrim. It is not suggested that at that point of time they were members of an unlawful assembly. There is no. material to justify the conclusion that they became members of the unlawful assembly at any time thereafter.It was the party of Anjaninandan who left their place and came to Gajanands takhat, presumably raising a dispute over the offerings made by the Nepali pilgrim. They came armed with deadly weapons and one of them inflicted a sever blow on Sukku which resulted in his death and other received as many as 27 serious injuries. In these circumstances it is not possible to suggest that both parties werefor a trial of strength and had a free fight. Gajanands party were the worst suffered and though they also inflicted injuries on the other side, they did so in the exercise of their right ofLearned counsel for the State was unable to point to any material on the record to show that Gajanands party which was lawful in its inception became unlawful afterwards and we hold, therefore, that the conviction and sentence of Gajanand and his associates cannot be sustained under Section 147 and Sections 324/149 and 323/149, I.P.C.These appellants had been acquitted by the Session Judge but were convicted by the High Court on appeal by the State. We are of opinion that this was hardly a case for interference with the order of acquittal.It was heldCharan Rai v. Emperor, AIR 1946 Pat 242 (B),Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does notagree with this statement of the law.Thequestion is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons.The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for injuries Nos. 2 & 3 on Sukkus left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149, I.P.C. According to the evidence only two persons were armed with deadly weapons. # Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, must less that they would be used in order to cause death.Accordingly we hold that the appellants are not guilty of the offence under Section 302/149, I.P.C., and set aside their conviction and sentence of transportation for life. That, however, does not conclude the matter. The appellants were convicted under Sections 147, I.P.C., 323/149, I.P.C., 324/249, I.P.C., 325/149, I.P.C. and sentenced to rigorous imprisonment for two years, one year, 3 years 5 years R.I. respectively, the sentences to run concurrently. The appellants have been found to be the aggressors and this finding supported as it is by the material on the record must be accepted as binding. We accordingly see no. reason to interfere with their convictions and sentences passed under the various sections referred to above.10.It was argued on behalf of the appellants that the trial of the appellants was vitiated because the prosecution had not been fairlyReference was made to the strong comments passed by the High Court on the conduct of the investigation and in particular to the fact that the Police did not produce the Police diary before the High Court despite several reminders. We are unable to enter into the question of the fairness or unfairness of the trial due to certain irregularities in the investigation, for we do not think it affects the merits of the matter. The High Court was fully conscious of these defects and although it severely commented upon the conduct of the prosecution, yet it arrived at the finding adverse to the appellants so far as their participation in the offence is concerned. | 1 | 1,696 | 864 | ### Instruction:
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various terms of imprisonment. He also convicted them under Section 302/149, I.P.C. and sentenced each of them to transportation for life but as in the opinion of the Sessions Judge Lalji had caused the fatal injury to Sukkhu with a gandasa, he passed a capital sentence against him. In the cross case all the accused were acquitted on the finding that the prosecution story was inherently improbable and unworthy of acceptance.The five persons convicted on the side of Anjaninandan appealed to the High Court, while the Government filed an appeal against the order of acquittal. The High Court acquitted Lalji and another by giving them the benefit of doubt but maintained the conviction and sentence of the other accused under the various charges. In the appeal filed by the State four persons Gajanand, Dasu, Bathe, and Chammar were convicted. They were sentenced under section147, I.P.C. to two years R.I. and under section 324/149 and 323/149, I.P.C. to three years R.I. each, the sentences to run concurrently. Both parties obtained special leave.4. We take up the appeal of Gajanand and others first. The High Court after consideration of the evidence and the circumstances of the case recorded the finding that the incident occurred at the time when the Nepali pilgrim was being entertained by Gajanand and that the immediate cause of the riot was the dispute raised by Anjaninandan that he was entitled to a share of the offerings made by him. The High Court further found that the version of Anjaninandans party that Gajanands party attacked him and his party at Chunawali-Marhi where the Daswan Ceremony was being performed was incredible. On the contrary it was established to their satisfaction that the fight took place in the narrow path or lane as stated by Gajanands group.In coming to his conclusion the learned Judges were influenced, not unnaturally, by the existence of blood marks in the narrow path and their complete absence at Chunawali-Marhi. After having recorded these findings the High Court went on to observe"It seems the dispute arose between Raghunath Dube and Gajanands men who were on the takhat, while Gajanand was at the Ghat below; and in view of the longstanding enmity between the two groups, it provided them with an opportunity to fight, upon which they were predetermined. Gajanands men moved from their place, that is from near Gajanands takhat and the complainants party moved from the place where the Daswan ceremony was being performed. Both the parties had armed themselves with deadly weapons and fought. None could be said to have acted in self defence."5. Mr. Sethi on behalf of the appellants contends that this observation is inconsistent with the previous finding and the High Court made out a new case in appeal which was neither set up by the other side nor found by the Sessions Judge. If the story that Gajanand accompanied by 14 persons, went from his Takhat to launch an attack on Anjaninandans group at Chuna-wali-Marhi is found to be untrue and rejected, and the contrary version that the fight took place at the narrow path is accepted, it follows as a necessary consequence that Anjaninandans party were the aggressors and Gajanands party acted in self-defence.The observations of the High Court that Gajanands men moved from their place, that is from near Gajanands takhat and that the other side having similarly moved from the place where the Dasawan ceremony was being performed in order to have a free fight, is based upon mere conjecture and has no. admissible evidence to support it. A free fight according to Harrison J. in --- Ahmad Sher v. Emperor, AIR 1931 Lah 513 (A), is"When both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders".There can be no. question of a free fight in the present case, as there is a clear finding of the High Court that Anjaninandans party were the aggressors.Having regard to the finding reached by the High Court that the riot took place at the narrow path as a result of the dispute about the Nepali pilgrim and the further fact that Gajanands party received more numerous injuries one of which was fatal, it is obvious that Gajanands party cannot be said to have constituted an unlawful assembly. Gajanands party was engaged in the peaceful pursuit of worship at their own takhat and was busy attending to the Puja for the Nepali pilgrim. It is not suggested that at that point of time they were members of an unlawful assembly. There is no. material to justify the conclusion that they became members of the unlawful assembly at any time thereafter.It was the party of Anjaninandan who left their place and came to Gajanands takhat, presumably raising a dispute over the offerings made by the Nepali pilgrim. They came armed with deadly weapons and one of them inflicted a sever blow on Sukku which resulted in his death and other received as many as 27 serious injuries. In these circumstances it is not possible to suggest that both parties were pre-determined for a trial of strength and had a free fight. Gajanands party were the worst suffered and though they also inflicted injuries on the other side, they did so in the exercise of their right of self-defence. Learned counsel for the State was unable to point to any material on the record to show that Gajanands party which was lawful in its inception became unlawful afterwards and we hold, therefore, that the conviction and sentence of Gajanand and his associates cannot be sustained under Section 147 and Sections 324/149 and 323/149, I.P.C.These appellants had been acquitted by the Session Judge but were convicted by the High Court on appeal by the State. We are of opinion that this was hardly a case for interference with the order of acquittal.
### Response:
1
### Explanation:
Having regard to the finding reached by the High Court that the riot took place at the narrow path as a result of the dispute about the Nepali pilgrim and the further fact that Gajanands party received more numerous injuries one of which was fatal, it is obvious that Gajanands party cannot be said to have constituted an unlawful assembly. Gajanands party was engaged in the peaceful pursuit of worship at their own takhat and was busy attending to the Puja for the Nepali pilgrim. It is not suggested that at that point of time they were members of an unlawful assembly. There is no. material to justify the conclusion that they became members of the unlawful assembly at any time thereafter.It was the party of Anjaninandan who left their place and came to Gajanands takhat, presumably raising a dispute over the offerings made by the Nepali pilgrim. They came armed with deadly weapons and one of them inflicted a sever blow on Sukku which resulted in his death and other received as many as 27 serious injuries. In these circumstances it is not possible to suggest that both parties werefor a trial of strength and had a free fight. Gajanands party were the worst suffered and though they also inflicted injuries on the other side, they did so in the exercise of their right ofLearned counsel for the State was unable to point to any material on the record to show that Gajanands party which was lawful in its inception became unlawful afterwards and we hold, therefore, that the conviction and sentence of Gajanand and his associates cannot be sustained under Section 147 and Sections 324/149 and 323/149, I.P.C.These appellants had been acquitted by the Session Judge but were convicted by the High Court on appeal by the State. We are of opinion that this was hardly a case for interference with the order of acquittal.It was heldCharan Rai v. Emperor, AIR 1946 Pat 242 (B),Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does notagree with this statement of the law.Thequestion is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons.The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for injuries Nos. 2 & 3 on Sukkus left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149, I.P.C. According to the evidence only two persons were armed with deadly weapons. # Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, must less that they would be used in order to cause death.Accordingly we hold that the appellants are not guilty of the offence under Section 302/149, I.P.C., and set aside their conviction and sentence of transportation for life. That, however, does not conclude the matter. The appellants were convicted under Sections 147, I.P.C., 323/149, I.P.C., 324/249, I.P.C., 325/149, I.P.C. and sentenced to rigorous imprisonment for two years, one year, 3 years 5 years R.I. respectively, the sentences to run concurrently. The appellants have been found to be the aggressors and this finding supported as it is by the material on the record must be accepted as binding. We accordingly see no. reason to interfere with their convictions and sentences passed under the various sections referred to above.10.It was argued on behalf of the appellants that the trial of the appellants was vitiated because the prosecution had not been fairlyReference was made to the strong comments passed by the High Court on the conduct of the investigation and in particular to the fact that the Police did not produce the Police diary before the High Court despite several reminders. We are unable to enter into the question of the fairness or unfairness of the trial due to certain irregularities in the investigation, for we do not think it affects the merits of the matter. The High Court was fully conscious of these defects and although it severely commented upon the conduct of the prosecution, yet it arrived at the finding adverse to the appellants so far as their participation in the offence is concerned.
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P. S. L. Ramanathan Chettiar & Ors Vs. O. Rm. P. Rm. Ramanathan Chettiar | need to mention expressly revenue tax or cess or liability arising out of a breach of trust or in respect of maintenance under a decree of court or otherwise" in S. 4. 10. The plea of the decree-holder which succeeded before the High Court cannot therefore be accepted. 11. It was however argued that the decree had been satisfied already and as such S. 16, Cl. (iii) of Madras Act XX-III of 1948 was applicable. That section for our purpose runs as follows :"The amendment made by this Act shall apply to the following suits and proceedings, namely: (i) * * * * * (ii) * * * * * (iii) all suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of this Act. * * * * * *" It was argued that as the full amount of the decree had been put in court before 1948, the judgment-debtors could not apply for scaling down thereafter. In this connection, reliance was placed on a decision of the Calcutta High Court in Chowthmull Maganmull v. Calcutta Wheat and Seeds Association, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ). There the, defendant-appellant had appealed from a decree for Rs. 21,850/with interest and costs passed against it and on the respondents taking steps to execute the decree had obtained an order for stay of execution thereof on depositing the said sum in court as security to the credit of the suit. Thereafter an order was made adjudicating the appellants as insolvents. The Official Assignee did not proceed with the appeal and the respondent applied for the appeal being dismissed and the money being paid over to them. The Official Assignee claimed the money as belonging to the insolvents estate and for the benefit of the general body of creditors. It was held that the effect of the order of August 29, 1923 directing stay of execution on terms of a deposit being made was that "the money was paid into Court to give security to the plaintiff that in the event of their succeeding in the appeal they should obtain the fruits of their success" and the "money which was paid into court belonged to the party who might he eventually found entitled to the sum." On the other hand there is a decision of the Bombay High Court in Keshavlal v. Chandulal, 37 Bom LR 200 = (AIR 1935 Bom 200 ) where a judgment-debtor had obtained an order for stay of execution of the decree on his depositing the decretal amount in court. Later on the application of the judgment-debtor the deposit was invested in Government promissory notes which appreciated in value by the time the appeal was heard. The appeal resulted in a small sum being disallowed from the decree whereupon the judgment-debtor applied for a return of the investment to him on his paying into court the amount due under the decree. But the decree-holder claimed the securities which represented the decretal amount at the time the deposit was made. On behalf of the decree-holder reference was made to the above judgment of the Calcutta High Court. There distinguishing the Calcutta judgment, Macklin, J. said that the amount in court "was primarily a deposit of security rather than a deposit of the decretal debt, and the decree-holder cannot claim it as his own unless the judgment-debtor fails to satisfy the decree by the payment of the money due under the decree." 12. On principle, it appears to us that the facts of a judgment-debtors depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order, but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of Order 21 Rule 1 C. P. C. in satisfaction of the decree. 13. The real effect of deposit of money in court as was done in this case is to put the money beyond the reach of the parties pending the disposal of the appeal. The decree-holder could only take it out on furnishing security which means that the payment was not in satisfaction of the decree and the security could he proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it was beyond the reach of the judgment-debtor. 14. The observations in Chowthmulls case, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ) (supra) do not help the respondent. In that case, the appeal was not proceeded with by the Official Assignee. Consequently, the decree-holder could not be deprived of the money which had been put into court to obtain stay of execution of the decree as but for the order, the decree-holder could have levied execution and obtained satisfaction of the decree- even before the disposal of the appeal. 15. The last contention raised on behalf of the respondent was that at any rate the decree-holder cannot claim any amount by way of interest after the deposit of the money in court. There is no substance in this point because the deposit in this case was not unconditional and the decree-holder was not free to withdraw it whenever he liked even before the disposal of the appeal. In case he wanted to do so, he had to give security in terms of the order. The deposit was not in terms of Order 21, Rule 1 C. P. C. and as such, there is no question of the stoppage of interest after the deposit. | 1[ds]9. On behalf of the respondent, it was argued that the word debt implied a preexisting loan and as such it could not apply to a deposit. The definition in S. 3 (iii) clearly negatives such a proposition. If loans alone were meant to be covered by the use of the word debt, there was no reason to exclude rent from the purview of the expression. In that case there would have been no need to mention expressly revenue tax or cess or liability arising out of a breach of trust or in respect of maintenance under a decree of court or otherwise" in S. 412. On principle, it appears to us that the facts of a judgment-debtors depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order, but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of Order 21 Rule 1 C. P. C. in satisfaction of the decree13. The real effect of deposit of money in court as was done in this case is to put the money beyond the reach of the parties pending the disposal of the appeal. The decree-holder could only take it out on furnishing security which means that the payment was not in satisfaction of the decree and the security could he proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it was beyond the reach of the judgment-debtor14. The observations in Chowthmulls case, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ) (supra) do not help the respondent. In that case, the appeal was not proceeded with by the Official Assignee. Consequently, the decree-holder could not be deprived of the money which had been put into court to obtain stay of execution of the decree as but for the order, the decree-holder could have levied execution and obtained satisfaction of the decree- even before the disposal of the appeal15. The last contention raised on behalf of the respondent was that at any rate the decree-holder cannot claim any amount by way of interest after the deposit of the money in court. There is no substance in this point because the deposit in this case was not unconditional and the decree-holder was not free to withdraw it whenever he liked even before the disposal of the appeal. In case he wanted to do so, he had to give security in terms of the order. The deposit was not in terms of Order 21, Rule 1 C. P. C. and as such, there is no question of the stoppage of interest after the deposit. | 1 | 2,585 | 560 | ### 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:
need to mention expressly revenue tax or cess or liability arising out of a breach of trust or in respect of maintenance under a decree of court or otherwise" in S. 4. 10. The plea of the decree-holder which succeeded before the High Court cannot therefore be accepted. 11. It was however argued that the decree had been satisfied already and as such S. 16, Cl. (iii) of Madras Act XX-III of 1948 was applicable. That section for our purpose runs as follows :"The amendment made by this Act shall apply to the following suits and proceedings, namely: (i) * * * * * (ii) * * * * * (iii) all suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of this Act. * * * * * *" It was argued that as the full amount of the decree had been put in court before 1948, the judgment-debtors could not apply for scaling down thereafter. In this connection, reliance was placed on a decision of the Calcutta High Court in Chowthmull Maganmull v. Calcutta Wheat and Seeds Association, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ). There the, defendant-appellant had appealed from a decree for Rs. 21,850/with interest and costs passed against it and on the respondents taking steps to execute the decree had obtained an order for stay of execution thereof on depositing the said sum in court as security to the credit of the suit. Thereafter an order was made adjudicating the appellants as insolvents. The Official Assignee did not proceed with the appeal and the respondent applied for the appeal being dismissed and the money being paid over to them. The Official Assignee claimed the money as belonging to the insolvents estate and for the benefit of the general body of creditors. It was held that the effect of the order of August 29, 1923 directing stay of execution on terms of a deposit being made was that "the money was paid into Court to give security to the plaintiff that in the event of their succeeding in the appeal they should obtain the fruits of their success" and the "money which was paid into court belonged to the party who might he eventually found entitled to the sum." On the other hand there is a decision of the Bombay High Court in Keshavlal v. Chandulal, 37 Bom LR 200 = (AIR 1935 Bom 200 ) where a judgment-debtor had obtained an order for stay of execution of the decree on his depositing the decretal amount in court. Later on the application of the judgment-debtor the deposit was invested in Government promissory notes which appreciated in value by the time the appeal was heard. The appeal resulted in a small sum being disallowed from the decree whereupon the judgment-debtor applied for a return of the investment to him on his paying into court the amount due under the decree. But the decree-holder claimed the securities which represented the decretal amount at the time the deposit was made. On behalf of the decree-holder reference was made to the above judgment of the Calcutta High Court. There distinguishing the Calcutta judgment, Macklin, J. said that the amount in court "was primarily a deposit of security rather than a deposit of the decretal debt, and the decree-holder cannot claim it as his own unless the judgment-debtor fails to satisfy the decree by the payment of the money due under the decree." 12. On principle, it appears to us that the facts of a judgment-debtors depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order, but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of Order 21 Rule 1 C. P. C. in satisfaction of the decree. 13. The real effect of deposit of money in court as was done in this case is to put the money beyond the reach of the parties pending the disposal of the appeal. The decree-holder could only take it out on furnishing security which means that the payment was not in satisfaction of the decree and the security could he proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it was beyond the reach of the judgment-debtor. 14. The observations in Chowthmulls case, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ) (supra) do not help the respondent. In that case, the appeal was not proceeded with by the Official Assignee. Consequently, the decree-holder could not be deprived of the money which had been put into court to obtain stay of execution of the decree as but for the order, the decree-holder could have levied execution and obtained satisfaction of the decree- even before the disposal of the appeal. 15. The last contention raised on behalf of the respondent was that at any rate the decree-holder cannot claim any amount by way of interest after the deposit of the money in court. There is no substance in this point because the deposit in this case was not unconditional and the decree-holder was not free to withdraw it whenever he liked even before the disposal of the appeal. In case he wanted to do so, he had to give security in terms of the order. The deposit was not in terms of Order 21, Rule 1 C. P. C. and as such, there is no question of the stoppage of interest after the deposit.
### Response:
1
### Explanation:
9. On behalf of the respondent, it was argued that the word debt implied a preexisting loan and as such it could not apply to a deposit. The definition in S. 3 (iii) clearly negatives such a proposition. If loans alone were meant to be covered by the use of the word debt, there was no reason to exclude rent from the purview of the expression. In that case there would have been no need to mention expressly revenue tax or cess or liability arising out of a breach of trust or in respect of maintenance under a decree of court or otherwise" in S. 412. On principle, it appears to us that the facts of a judgment-debtors depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order, but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of Order 21 Rule 1 C. P. C. in satisfaction of the decree13. The real effect of deposit of money in court as was done in this case is to put the money beyond the reach of the parties pending the disposal of the appeal. The decree-holder could only take it out on furnishing security which means that the payment was not in satisfaction of the decree and the security could he proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it was beyond the reach of the judgment-debtor14. The observations in Chowthmulls case, ILR 51 Cal 1010 = (AIR 1925 Cal 416 ) (supra) do not help the respondent. In that case, the appeal was not proceeded with by the Official Assignee. Consequently, the decree-holder could not be deprived of the money which had been put into court to obtain stay of execution of the decree as but for the order, the decree-holder could have levied execution and obtained satisfaction of the decree- even before the disposal of the appeal15. The last contention raised on behalf of the respondent was that at any rate the decree-holder cannot claim any amount by way of interest after the deposit of the money in court. There is no substance in this point because the deposit in this case was not unconditional and the decree-holder was not free to withdraw it whenever he liked even before the disposal of the appeal. In case he wanted to do so, he had to give security in terms of the order. The deposit was not in terms of Order 21, Rule 1 C. P. C. and as such, there is no question of the stoppage of interest after the deposit.
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Commr. Of Income Tax, Madras Vs. Brakes India Ltd., Madras | B. P. JEEVAN REDDY AND N. VENKATACHALA 1. In this appeal preferred against the judgment of the Madras High Court (see 1979 (188) ITR 820), the words "whose income chargeable under the head "Salaries" occurring in the second proviso to sub-clause (iii) of clause (c) of section 40 fall for interpretation. The assessment year concerned is 1965-66. During the accounting year relevant to the said assessment year, the assessee paid to its foreign technical director a total remuneration of Rs. 66, 000 including a sum of Rs. 28, 576 paid by way of perquisites. The Income-tax Officer held that, by virtue of section 40 (c) (iii), perquisites exceeding one-fifth amount of the salary cannot be allowed as a deduction. He held further that the second proviso to the said sub-clause is not applicable inasmuch as the income chargeable under the head "Salaries" was not Rs. 7, 500 or less. Accordingly, he allowed only a sum of Rs. 13, 200 by way of perquisites. He disallowed the balance of Rs. 15,376. 2. The Appellate Assistant Commissioner, however, allowed the assessees appeal holding that inasmuch as the salary of the foreign technical director was exempt from tax under section 10 (6) (vii), the provision contained in section 40 (c) (iii) was not applicable. The appeal filed by the Revenue was allowed by the Tribunal. The Tribunal opined that merely because the salary is exempt under section 10 (6) (vii), the provision in section 40 (c) (iii) does not cease to apply. Under the proviso to the said sub-clause, only an employee whose income chargeable under the head "Salaries" was Rs. 7, 500 or less is exempted. Inasmuch as the income chargeable under the head "Salaries" in this case is more than Rs. 7, 500, the exemption does not operate. Since the said foreign technical director was an employee of the assessee, he was certainly governed by the provision of section 40 (c) (iii), said the Tribunal. At the request of the assessee, it stated the following question for the opinion of the High Court: (at page 821 of 118 ITR) "Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that the provisions of section 40 (c) (iii) were rightly invoked for the assessment year 1965-66 in relation to the remuneration of the technical director of the assessee-company?" Section 40 (c) (iii), as applicable to the assessment year 1965-66, read as follows: "40. Notwithstanding anything to the contrary in sections 30 to 39, the following amounts shall not be deducted in computing the income chargeable under the head Profits and gains of business or profession(c) in the case of any company(iii) any expenditure incurred after the 29th day of February, 1964, which results directly or indirectly in the provision of any benefit or amenity or perquisite, whether convertible into money or not, to an employee (including any sum paid by the company in respect of any obligation which but for such payment would have been payable by such employee), to the extent such expenditure exceeds one-fifth of the amount of salary payable to the employee for any period of his employment after the aforesaid date.Provided further that nothing in this sub-clause shall apply to any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite to an employee whose income chargeable under the head Salaries is seven thousand five hundred rupees or less." 3. Under section 10 (6) (vii) of the Act, the remuneration due to any technician who was not a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head "Salaries", for services rendered as a technician, was exempt. In this case, the salary paid to the foreign technical director was admittedly exempt under section 10 (6) (vii). The contention of the assessee which has been accepted by the High Court runs thus : the salary payable to the said director was exempt by virtue of section 10 (6) (vii). In other words, it is nil for the purposes of the Act. If so, the second proviso to the sub-clause is attracted, inasmuch as "nil" income, under the head "Salaries" is less than rupees seven thousand five hundred. By virtue of the said second proviso, the main provision in sub-clause (iii) goes out of the picture. The High Court reasoned that, if income of one rupee is less than Rs. 7, 500, there is no reason for saying that "nil" income is not an income less than Rs. 7, 500. Since the income exempted under section 10 is not liable to be included in the total income, such exempted salary income should be treated as "nil" income for the purposes of section 40 (c) (iii), opined the High CourtAfter hearing counsel for the parties, we are of the opinion that the view taken by the High Court is a reasonable one and does not call for any interference 4. | 0[ds]Under section 10 (6) (vii) of the Act, the remuneration due to any technician who was not a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head "Salaries", for services rendered as a technician, was exempt. In this case, the salary paid to the foreign technical director was admittedly exempt under section 10 (6) (vii). The contention of the assessee which has been accepted by the High Court runs thus : the salary payable to the said director was exempt by virtue of section 10 (6) (vii). In other words, it is nil for the purposes of the Act. If so, the second proviso to the sub-clause is attracted, inasmuch as "nil" income, under the head "Salaries" is less than rupees seven thousand five hundred. By virtue of the said second proviso, the main provision in sub-clause (iii) goes out of the picture. The High Court reasoned that, if income of one rupee is less than Rs. 7, 500, there is no reason for saying that "nil" income is not an income less than Rs. 7, 500. Since the income exempted under section 10 is not liable to be included in the total income, such exempted salary income should be treated as "nil" income for the purposes of section 40 (c) (iii), opined the High CourtAfter hearing counsel for the parties, we are of the opinion that the view taken by the High Court is a reasonable one and does not call for any interference | 0 | 1,010 | 317 | ### 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:
B. P. JEEVAN REDDY AND N. VENKATACHALA 1. In this appeal preferred against the judgment of the Madras High Court (see 1979 (188) ITR 820), the words "whose income chargeable under the head "Salaries" occurring in the second proviso to sub-clause (iii) of clause (c) of section 40 fall for interpretation. The assessment year concerned is 1965-66. During the accounting year relevant to the said assessment year, the assessee paid to its foreign technical director a total remuneration of Rs. 66, 000 including a sum of Rs. 28, 576 paid by way of perquisites. The Income-tax Officer held that, by virtue of section 40 (c) (iii), perquisites exceeding one-fifth amount of the salary cannot be allowed as a deduction. He held further that the second proviso to the said sub-clause is not applicable inasmuch as the income chargeable under the head "Salaries" was not Rs. 7, 500 or less. Accordingly, he allowed only a sum of Rs. 13, 200 by way of perquisites. He disallowed the balance of Rs. 15,376. 2. The Appellate Assistant Commissioner, however, allowed the assessees appeal holding that inasmuch as the salary of the foreign technical director was exempt from tax under section 10 (6) (vii), the provision contained in section 40 (c) (iii) was not applicable. The appeal filed by the Revenue was allowed by the Tribunal. The Tribunal opined that merely because the salary is exempt under section 10 (6) (vii), the provision in section 40 (c) (iii) does not cease to apply. Under the proviso to the said sub-clause, only an employee whose income chargeable under the head "Salaries" was Rs. 7, 500 or less is exempted. Inasmuch as the income chargeable under the head "Salaries" in this case is more than Rs. 7, 500, the exemption does not operate. Since the said foreign technical director was an employee of the assessee, he was certainly governed by the provision of section 40 (c) (iii), said the Tribunal. At the request of the assessee, it stated the following question for the opinion of the High Court: (at page 821 of 118 ITR) "Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that the provisions of section 40 (c) (iii) were rightly invoked for the assessment year 1965-66 in relation to the remuneration of the technical director of the assessee-company?" Section 40 (c) (iii), as applicable to the assessment year 1965-66, read as follows: "40. Notwithstanding anything to the contrary in sections 30 to 39, the following amounts shall not be deducted in computing the income chargeable under the head Profits and gains of business or profession(c) in the case of any company(iii) any expenditure incurred after the 29th day of February, 1964, which results directly or indirectly in the provision of any benefit or amenity or perquisite, whether convertible into money or not, to an employee (including any sum paid by the company in respect of any obligation which but for such payment would have been payable by such employee), to the extent such expenditure exceeds one-fifth of the amount of salary payable to the employee for any period of his employment after the aforesaid date.Provided further that nothing in this sub-clause shall apply to any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite to an employee whose income chargeable under the head Salaries is seven thousand five hundred rupees or less." 3. Under section 10 (6) (vii) of the Act, the remuneration due to any technician who was not a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head "Salaries", for services rendered as a technician, was exempt. In this case, the salary paid to the foreign technical director was admittedly exempt under section 10 (6) (vii). The contention of the assessee which has been accepted by the High Court runs thus : the salary payable to the said director was exempt by virtue of section 10 (6) (vii). In other words, it is nil for the purposes of the Act. If so, the second proviso to the sub-clause is attracted, inasmuch as "nil" income, under the head "Salaries" is less than rupees seven thousand five hundred. By virtue of the said second proviso, the main provision in sub-clause (iii) goes out of the picture. The High Court reasoned that, if income of one rupee is less than Rs. 7, 500, there is no reason for saying that "nil" income is not an income less than Rs. 7, 500. Since the income exempted under section 10 is not liable to be included in the total income, such exempted salary income should be treated as "nil" income for the purposes of section 40 (c) (iii), opined the High CourtAfter hearing counsel for the parties, we are of the opinion that the view taken by the High Court is a reasonable one and does not call for any interference 4.
### Response:
0
### Explanation:
Under section 10 (6) (vii) of the Act, the remuneration due to any technician who was not a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head "Salaries", for services rendered as a technician, was exempt. In this case, the salary paid to the foreign technical director was admittedly exempt under section 10 (6) (vii). The contention of the assessee which has been accepted by the High Court runs thus : the salary payable to the said director was exempt by virtue of section 10 (6) (vii). In other words, it is nil for the purposes of the Act. If so, the second proviso to the sub-clause is attracted, inasmuch as "nil" income, under the head "Salaries" is less than rupees seven thousand five hundred. By virtue of the said second proviso, the main provision in sub-clause (iii) goes out of the picture. The High Court reasoned that, if income of one rupee is less than Rs. 7, 500, there is no reason for saying that "nil" income is not an income less than Rs. 7, 500. Since the income exempted under section 10 is not liable to be included in the total income, such exempted salary income should be treated as "nil" income for the purposes of section 40 (c) (iii), opined the High CourtAfter hearing counsel for the parties, we are of the opinion that the view taken by the High Court is a reasonable one and does not call for any interference
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Renu Devi and Ors Vs. Union of India (UOI) and Ors | which O.A. No. 4313 of 2013 filed by the Appellant praying for grant of Special Family Pension w.e.f. 15.09.2004 has been dismissed. M.A. No. 1075 of 2017 seeking leave to appeal has also been dismissed by Armed Forces Tribunal by order dated 10.07.2017. 4. Civil Appeal No. 2538 of 2019 has been filed against the order of the Armed Forces Tribunal dated 08.05.2018, by which O.A. No. 449 of 2014 filed by Smt. Rekha Devi praying for grant of Special Family Pension w.e.f. 18.06.2003 has been rejected. 5. It shall be sufficient to notice the facts in Civil Appeal arising out of Diary No. 37356 of 2017 -Renu Devi v. Union of India and Ors. for deciding these two appeals. 6. The husband of the Appellant Late Sepoy Vikash died while on casual leave on 14.09.2004. O.A. No. 4313 of 2013 was filed praying for grant of Special Family Pension. Late Sepoy Vikash joined the Army Service on 30.07.2000 and died on 14.09.2004 in a road accident while he was on 14 days casual leave w.e.f. 04.09.2004 to 17.09.2004. The Tribunal rejected the claim holding that it is not covered by the Regulations. Aggrieved by the said judgment, this appeal has been filed. 7. Ms. Aishwarya Bhati, learned senior Counsel for the Appellant submits that the deceased husband being on casual leave, he has to be treated for all purposes on duty and when husband of the Appellant died on duty, he is entitled for the Special Family Pension. Learned Counsel for the Appellant has relied on Leave Rules for the Services (Volume -I -Army), Rule 10. 8. Learned Counsel appearing for the Union of India submits that Armed Forces Tribunal has rightly rejected the claim since it is not covered by the Statutory Regulations and conditions for grant of Special Family Pension were not fulfilled in the present cases. Learned Counsel submits that the Tribunal has referred to relevant Regulations as well as Government of Indias order. 9. We have considered the submissions of the learned Counsel for the parties and have perused the records. 10. Learned Counsel for the Appellant placed reliance on Rule 10, which dealt with casual leave, which is to the following effect: 10. Casual leave counts as duty except as provided for in Rule 11(a). It cannot be utilised to supplement any other form of leave or absence, except as provided for in Clause (A) of Rule 72 for personnel participating in sporting events and tournaments. Casual leave due in a year can only be taken within that year. If, however, an individual is granted casual leave at the end of the year extending to the next year, the period falling in the latter year will be debited against the casual leave entitlement of that year. 11. Regulation 213 of Pension Regulation for the Army, 1961 (Part-I) provides as follows: 213. A special family pension may be granted to the family of an individual if his death was due to or hastened by- (a) a wound, injury or disease which was attributable to military service, OR (b) the aggravation by military service of a wound, injury or disease, which existed before or arose during military service. 12. Government of India has also issued an order on 31.01.2001 dealing with Family Pensionary Benefits in Attributable/Aggravated cases. Part II of the O.M. dated 31.01.2001 is as follows: 5. Special Family Pension (SFP) 5.1 In case of death of an Armed Forces Personnel under the circumstances mentioned in category B or C of Para 4 above, Special Family Pension shall continue to be admissible to the families of such personnel under the same conditions as in force hitherto. 13. Categories B and C mentioned in Part II of the above order were dealt in Para 4.1, which is to the following effect: 4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable/aggravated causes, the cases will be broadly categorised as follows: XXXX Category-B Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Disease contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples. Category-C Death or disability due to accidents in the performance of duties such as: (i) Accidents while travelling on duty in Government Vehicles or public/private transport. (ii) Accidents during air journeys (iii) Mishaps at sea while on duty. (iv) Electrocution while on duty, etc. (v) Accidents during participation in organised sports events/adventure activities/expeditions/training. 14. Leave Rule 10 as quoted above provides that casual leave counts as duty but the mere fact that a person on casual leave although is treated on duty, shall not be automatic entitlement to special family pension. The Regulation 213 has to be satisfied before Special Family Pension can be granted to the family of individual on his death, in which circumstances, death shall be treated to be attributable to military service or aggravated by military service as has been explained in O.M. dated 31.01.2001 as extracted above. As per Para 5.1 in case of circumstances mentioned in category B or C, Special Family Pension shall be admissible. 15. Learned Counsel for the Appellant submits that death while on duty itself is sufficient for grant of Special Family Pension. If we accept the above submission, categories B and C as extracted above shall become redundant. When Ministry of Defence has formulated a policy by letter dated 31.01.2001, the claim has to be examined on the basis of said policy and claim of the Appellants being not covered by either category B or C, Tribunal did not commit any error in rejecting the claim. Tribunal has noticed O.M. dated 31.01.2001 and has rightly come to the conclusion that Appellant was not entitled for the Special Family Pension. Ordinary Family Pension has already been granted to the Appellant, which has been noticed in the judgment. | 0[ds]14. Leave Rule 10 as quoted above provides that casual leave counts as duty but the mere fact that a person on casual leave although is treated on duty, shall not be automatic entitlement to special family pension. The Regulation 213 has to be satisfied before Special Family Pension can be granted to the family of individual on his death, in which circumstances, death shall be treated to be attributable to military service or aggravated by military service as has been explained in O.M. dated 31.01.2001 as extracted above. As per Para 5.1 in case of circumstances mentioned in category B or C, Special Family Pension shall be admissibleIf we accept the above submission, categories B and C as extracted above shall become redundant. When Ministry of Defence has formulated a policy by letter dated 31.01.2001, the claim has to be examined on the basis of said policy and claim of the Appellants being not covered by either category B or C, Tribunal did not commit any error in rejecting the claim. Tribunal has noticed O.M. dated 31.01.2001 and has rightly come to the conclusion that Appellant was not entitled for the Special Family Pension. Ordinary Family Pension has already been granted to the Appellant, which has been noticed in the judgment. | 0 | 1,200 | 233 | ### 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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which O.A. No. 4313 of 2013 filed by the Appellant praying for grant of Special Family Pension w.e.f. 15.09.2004 has been dismissed. M.A. No. 1075 of 2017 seeking leave to appeal has also been dismissed by Armed Forces Tribunal by order dated 10.07.2017. 4. Civil Appeal No. 2538 of 2019 has been filed against the order of the Armed Forces Tribunal dated 08.05.2018, by which O.A. No. 449 of 2014 filed by Smt. Rekha Devi praying for grant of Special Family Pension w.e.f. 18.06.2003 has been rejected. 5. It shall be sufficient to notice the facts in Civil Appeal arising out of Diary No. 37356 of 2017 -Renu Devi v. Union of India and Ors. for deciding these two appeals. 6. The husband of the Appellant Late Sepoy Vikash died while on casual leave on 14.09.2004. O.A. No. 4313 of 2013 was filed praying for grant of Special Family Pension. Late Sepoy Vikash joined the Army Service on 30.07.2000 and died on 14.09.2004 in a road accident while he was on 14 days casual leave w.e.f. 04.09.2004 to 17.09.2004. The Tribunal rejected the claim holding that it is not covered by the Regulations. Aggrieved by the said judgment, this appeal has been filed. 7. Ms. Aishwarya Bhati, learned senior Counsel for the Appellant submits that the deceased husband being on casual leave, he has to be treated for all purposes on duty and when husband of the Appellant died on duty, he is entitled for the Special Family Pension. Learned Counsel for the Appellant has relied on Leave Rules for the Services (Volume -I -Army), Rule 10. 8. Learned Counsel appearing for the Union of India submits that Armed Forces Tribunal has rightly rejected the claim since it is not covered by the Statutory Regulations and conditions for grant of Special Family Pension were not fulfilled in the present cases. Learned Counsel submits that the Tribunal has referred to relevant Regulations as well as Government of Indias order. 9. We have considered the submissions of the learned Counsel for the parties and have perused the records. 10. Learned Counsel for the Appellant placed reliance on Rule 10, which dealt with casual leave, which is to the following effect: 10. Casual leave counts as duty except as provided for in Rule 11(a). It cannot be utilised to supplement any other form of leave or absence, except as provided for in Clause (A) of Rule 72 for personnel participating in sporting events and tournaments. Casual leave due in a year can only be taken within that year. If, however, an individual is granted casual leave at the end of the year extending to the next year, the period falling in the latter year will be debited against the casual leave entitlement of that year. 11. Regulation 213 of Pension Regulation for the Army, 1961 (Part-I) provides as follows: 213. A special family pension may be granted to the family of an individual if his death was due to or hastened by- (a) a wound, injury or disease which was attributable to military service, OR (b) the aggravation by military service of a wound, injury or disease, which existed before or arose during military service. 12. Government of India has also issued an order on 31.01.2001 dealing with Family Pensionary Benefits in Attributable/Aggravated cases. Part II of the O.M. dated 31.01.2001 is as follows: 5. Special Family Pension (SFP) 5.1 In case of death of an Armed Forces Personnel under the circumstances mentioned in category B or C of Para 4 above, Special Family Pension shall continue to be admissible to the families of such personnel under the same conditions as in force hitherto. 13. Categories B and C mentioned in Part II of the above order were dealt in Para 4.1, which is to the following effect: 4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable/aggravated causes, the cases will be broadly categorised as follows: XXXX Category-B Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Disease contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples. Category-C Death or disability due to accidents in the performance of duties such as: (i) Accidents while travelling on duty in Government Vehicles or public/private transport. (ii) Accidents during air journeys (iii) Mishaps at sea while on duty. (iv) Electrocution while on duty, etc. (v) Accidents during participation in organised sports events/adventure activities/expeditions/training. 14. Leave Rule 10 as quoted above provides that casual leave counts as duty but the mere fact that a person on casual leave although is treated on duty, shall not be automatic entitlement to special family pension. The Regulation 213 has to be satisfied before Special Family Pension can be granted to the family of individual on his death, in which circumstances, death shall be treated to be attributable to military service or aggravated by military service as has been explained in O.M. dated 31.01.2001 as extracted above. As per Para 5.1 in case of circumstances mentioned in category B or C, Special Family Pension shall be admissible. 15. Learned Counsel for the Appellant submits that death while on duty itself is sufficient for grant of Special Family Pension. If we accept the above submission, categories B and C as extracted above shall become redundant. When Ministry of Defence has formulated a policy by letter dated 31.01.2001, the claim has to be examined on the basis of said policy and claim of the Appellants being not covered by either category B or C, Tribunal did not commit any error in rejecting the claim. Tribunal has noticed O.M. dated 31.01.2001 and has rightly come to the conclusion that Appellant was not entitled for the Special Family Pension. Ordinary Family Pension has already been granted to the Appellant, which has been noticed in the judgment.
### Response:
0
### Explanation:
14. Leave Rule 10 as quoted above provides that casual leave counts as duty but the mere fact that a person on casual leave although is treated on duty, shall not be automatic entitlement to special family pension. The Regulation 213 has to be satisfied before Special Family Pension can be granted to the family of individual on his death, in which circumstances, death shall be treated to be attributable to military service or aggravated by military service as has been explained in O.M. dated 31.01.2001 as extracted above. As per Para 5.1 in case of circumstances mentioned in category B or C, Special Family Pension shall be admissibleIf we accept the above submission, categories B and C as extracted above shall become redundant. When Ministry of Defence has formulated a policy by letter dated 31.01.2001, the claim has to be examined on the basis of said policy and claim of the Appellants being not covered by either category B or C, Tribunal did not commit any error in rejecting the claim. Tribunal has noticed O.M. dated 31.01.2001 and has rightly come to the conclusion that Appellant was not entitled for the Special Family Pension. Ordinary Family Pension has already been granted to the Appellant, which has been noticed in the judgment.
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Suresh Kumar through GPA Vs. Anil Kakaria & Others | for issuance of mandatory injunction against respondent Nos.1 to 3 directing them to transfer the suit land in favour of appellant.7. The suit was essentially based on an agreement dated 24.04.1980 and the Will alleged to have been executed by late Shri Ved Prakash Kakaria in his favour for claiming the aforementioned reliefs against the respondents.8. The respondents filed their respective written statements and denied the plaintiffs claim. The respondents denied the agreement dated 24.04.1980 and also denied the execution of alleged Will said to have been executed by Ved Prakash Kakaria in favour of the plaintiff. The respondents defended the sale of the suit land made by respondent Nos.1 to 3 in favour of respondent No.4 for valuable consideration and contended that respondent No.4 was put in its actual possession and has also set up their factory over the suit land and running the same.9. The Trial Court framed the issues and the parties adduced their evidence. The Trial Court, by its judgment and decree dated 22.01.2005, dismissed the suit. It was held that the appellant (plaintiff) failed to prove the agreement dated 24.04.1980, that the Will was also not proved, that respondent Nos.1 to 3 being the owner of the suit land rightly sold the suit land to respondent No. 4 for consideration, and lastly, that respondent No.4 was in possession of the suit land and has set up their factory over the suit land.10. Felt aggrieved, the appellant filed first appeal before the Additional District Judge, Panchkula. By judgment/decree dated 21.10.2005, the First Appellate Court dismissed the appeal and upheld the judgment/decree of the Trial Court. Felt aggrieved, the appellant pursued the matter in second appeal before the High Court. The High Court, by impugned judgment, dismissed the second appeal holding that the concurrent findings of two Courts below are binding on the High Court and that the appeal does not involve any substantial question of law under Section 100 of Code of Civil Procedure. It is against this judgment of the High Court, the appellant (plaintiff) felt aggrieved and filed this appeal by special leave before this Court.11. Heard Mr. Jaideep Gupta, learned senior counsel for the appellant and Mr. Sanjay Kumar Visen, learned counsel for the respondents.12. Having heard the learned counsel for the parties and on perusal of the record of the case including written submissions, we find no merit in the appeal.13. In our considered view, the three Courts below have rightly rendered the aforementioned findings in favour of the respondents and we find no difficulty in concurring with the findings which, in our view, do not call for any interference by this Court.14. In our considered opinion, the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law.16. Even apart from what is held above, we are of the considered opinion that the appellants suit is wholly misconceived and was, therefore, rightly dismissed by the three Courts below. We concur with the reasoning of the Courts below and also add the following three reasons in addition to what is held by the Courts below.17. In the first place, the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.18. Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.1 to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was, however, not done. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed.19. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fact that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant. Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellants favour, who was not related to him.20. We are, therefore, of the view that keeping in view the concurrent findings of three Courts below, which were rendered against the appellant (plaintiff) coupled with our three reasonings mentioned supra, the appeal has no merit.21. In view of foregoing discussion, we find no merit in this appeal. | 0[ds]12. Having heard the learned counsel for the parties and on perusal of the record of the case including written submissions, we find no merit in the appeal.13. In our considered view, the three Courts below have rightly rendered the aforementioned findings in favour of the respondents and we find no difficulty in concurring with the findings which, in our view, do not call for any interference by this Court.14. In our considered opinion, the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law.16. Even apart from what is held above, we are of the considered opinion that the appellants suit is wholly misconceived and was, therefore, rightly dismissed by the three Courts below. We concur with the reasoning of the Courts below and also add the following three reasons in addition to what is held by the Courts below.17. In the first place, the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.18. Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.1 to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was, however, not done. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed.19. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fact that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant. Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondentwhy should he execute a Will in appellants favour, who was not related to him.20. We are, therefore, of the view that keeping in view the concurrent findings of three Courts below, which were rendered against the appellant (plaintiff) coupled with our three reasonings mentioned supra, the appeal has no merit.21. In view of foregoing discussion, we find no merit in this appeal. | 0 | 1,400 | 698 | ### 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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for issuance of mandatory injunction against respondent Nos.1 to 3 directing them to transfer the suit land in favour of appellant.7. The suit was essentially based on an agreement dated 24.04.1980 and the Will alleged to have been executed by late Shri Ved Prakash Kakaria in his favour for claiming the aforementioned reliefs against the respondents.8. The respondents filed their respective written statements and denied the plaintiffs claim. The respondents denied the agreement dated 24.04.1980 and also denied the execution of alleged Will said to have been executed by Ved Prakash Kakaria in favour of the plaintiff. The respondents defended the sale of the suit land made by respondent Nos.1 to 3 in favour of respondent No.4 for valuable consideration and contended that respondent No.4 was put in its actual possession and has also set up their factory over the suit land and running the same.9. The Trial Court framed the issues and the parties adduced their evidence. The Trial Court, by its judgment and decree dated 22.01.2005, dismissed the suit. It was held that the appellant (plaintiff) failed to prove the agreement dated 24.04.1980, that the Will was also not proved, that respondent Nos.1 to 3 being the owner of the suit land rightly sold the suit land to respondent No. 4 for consideration, and lastly, that respondent No.4 was in possession of the suit land and has set up their factory over the suit land.10. Felt aggrieved, the appellant filed first appeal before the Additional District Judge, Panchkula. By judgment/decree dated 21.10.2005, the First Appellate Court dismissed the appeal and upheld the judgment/decree of the Trial Court. Felt aggrieved, the appellant pursued the matter in second appeal before the High Court. The High Court, by impugned judgment, dismissed the second appeal holding that the concurrent findings of two Courts below are binding on the High Court and that the appeal does not involve any substantial question of law under Section 100 of Code of Civil Procedure. It is against this judgment of the High Court, the appellant (plaintiff) felt aggrieved and filed this appeal by special leave before this Court.11. Heard Mr. Jaideep Gupta, learned senior counsel for the appellant and Mr. Sanjay Kumar Visen, learned counsel for the respondents.12. Having heard the learned counsel for the parties and on perusal of the record of the case including written submissions, we find no merit in the appeal.13. In our considered view, the three Courts below have rightly rendered the aforementioned findings in favour of the respondents and we find no difficulty in concurring with the findings which, in our view, do not call for any interference by this Court.14. In our considered opinion, the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law.16. Even apart from what is held above, we are of the considered opinion that the appellants suit is wholly misconceived and was, therefore, rightly dismissed by the three Courts below. We concur with the reasoning of the Courts below and also add the following three reasons in addition to what is held by the Courts below.17. In the first place, the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.18. Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.1 to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was, however, not done. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed.19. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fact that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant. Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellants favour, who was not related to him.20. We are, therefore, of the view that keeping in view the concurrent findings of three Courts below, which were rendered against the appellant (plaintiff) coupled with our three reasonings mentioned supra, the appeal has no merit.21. In view of foregoing discussion, we find no merit in this appeal.
### Response:
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### Explanation:
12. Having heard the learned counsel for the parties and on perusal of the record of the case including written submissions, we find no merit in the appeal.13. In our considered view, the three Courts below have rightly rendered the aforementioned findings in favour of the respondents and we find no difficulty in concurring with the findings which, in our view, do not call for any interference by this Court.14. In our considered opinion, the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law.16. Even apart from what is held above, we are of the considered opinion that the appellants suit is wholly misconceived and was, therefore, rightly dismissed by the three Courts below. We concur with the reasoning of the Courts below and also add the following three reasons in addition to what is held by the Courts below.17. In the first place, the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.18. Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.1 to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was, however, not done. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed.19. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fact that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant. Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondentwhy should he execute a Will in appellants favour, who was not related to him.20. We are, therefore, of the view that keeping in view the concurrent findings of three Courts below, which were rendered against the appellant (plaintiff) coupled with our three reasonings mentioned supra, the appeal has no merit.21. In view of foregoing discussion, we find no merit in this appeal.
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Alka Chandewar Vs. Shamshul Ishrar Khan | Chapter V, Conduct of arbitral proceedings. Further, it is well settled that a marginal note can be used as an internal aid to interpretation of statutes only in order to show what is the general drift of the section. It may also be resorted to when the plain meaning of the section is not clear. In the present case we must go by the plain meaning of sub-section (5). This being the case, we find it difficult to appreciate the reasoning of the High Court. Also, in consonance with the modern rule of interpretation of statutes, the entire object of providing that a party may approach the Arbitral Tribunal instead of the Court for interim reliefs would be stultified if interim orders passed by such Tribunal are toothless. It is to give teeth to such orders that an express provision is made in Section 27(5) of the Act. 8. In fact, the Delhi High Court by the judgment dated 18th August, 2009, reported in 2009 (112) Delhi Reported Judgments 657, has correctly construed Section 27(5) of the Act. Further, it must be remembered that this Court in M/s Ambalal Sarabhai Enterprises v. M/s Amrit Lal & Co. & Anr. 2001(2) R.C.R.(Rent) 328 : (2001) 8 SCC 397 has held that parties to arbitration proceedings are put to an election as to whether to apply for interim relief before the Tribunal under Section 17 or before the Court under Section 9. Such election would be meaningless if interim orders passed by the Arbitral Tribunal were to be written in water, as all parties would then go only to the Court, which would render Section 17 a dead letter. 9. Coming to Shri Rana Mukherjees submission that sub-section (2) of Section 17 introduced by the 2015 Amendment Act now provides for the necessary remedy against infraction of interim orders by Tribunal, suffice it to state that the Law Commission itself, in its 246th report, found the need to go one step further than what was provided in Section 27(5) as construed by the Delhi High Court (supra). The Commission, in its report, had this to say: POWERS OF TRIBUNAL TO ORDER INTERIM MEASURES 46. Under section 17, the arbitral tribunal has the power to order interim measures of protection unless the parties have excluded such power by agreement. Section 17 is an important provision, which is crucial to the working of the arbitration system, since it ensures that even for the purposes of interim measures, the parties can approach the arbitral tribunal rather than await orders from a Court. The efficacy of section 17 is however, seriously compromised given the lack of any suitable statutory mechanism for the enforcement of such interim orders of the arbitral tribunal. 47. In Sundaram Finance Ltd. v. NEPC India Ltd., 1999(1) R.C.R.(Civil) 580 : (1999) 2 SCC 479 , the Supreme Court observed that though section 17 gives the arbitral tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that section 9 gives the court power to pass interim orders during the arbitration proceedings. Subsequently, in M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., 2003(4) R.C.R.(Civil) 767 : (2004) 9 SCC 619 the Court had held that under section 17 of the Act no power is conferred on the arbitral tribunal to enforce its order nor does it provide for judicial enforcement thereof. 48. In the face of such categorical judicial opinion, the Delhi High Court attempted to find a suitable legislative basis for enforcing the orders of the arbitral tribunal under Section 17 in the case of Sri Krishan v. Anand, (2009) 3 Arb LR 447 (Del) (followed in Indiabulls Financial Services v. Jubilee Plots, OMP Nos.452-453/2009 Order dated 18.08.2009). The Delhi High Court held that any person failing to comply with the order of the arbitral tribunal under section 17 would be deemed to be making any other default or guilty of any contempt to the arbitral tribunal during the conduct of the proceedings under section 27(5) of Act. The remedy of the aggrieved party would then be to apply to the arbitral tribunal for making a representation to the Court to mete out appropriate punishment. Once such a representation is received by the Court from the arbitral tribunal, the Court would be competent to deal with such party in default as if it is in contempt of an order of the Court, i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2A Code of Civil Procedure, 1908. 49. The Commission believes that while it is important to provide teeth to the interim orders of the arbitral tribunal as well as to provide for their enforcement, the judgment of the Delhi High Court in Sri Krishan v. Anand is not a complete solution. The Commission has, therefore, recommended amendments to section 17 of the Act which would give teeth to the orders of the Arbitral Tribunal and the same would be statutorily enforceable in the same manner as the Orders of a Court. In this respect, the views of the Commission are consistent with (though do not go as far as) the 2006 amendments to Article 17 of the UNCITRAL Model Law. 10. Pursuant to this report, sub-section(2) to Section 17 was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. Thus we do not find Shri Rana Mukherjees submission to be of any substance in view of the fact that Section 17(2) was enacted for the purpose of providing a complete solution to the problem. | 1[ds]7. If Section 27(5) is read literally, there is no difficulty in accepting the plea of learned senior advocate for the appellant, because persons failing to attend in accordance with the court process fall under a separate category from any other default. Further, the Section is not confined to a person being guilty of contempt only when failing to attend in accordance with such process. The Section specifically states that persons guilty of any contempt to the Arbitral Tribunal during the conduct of the Arbitral proceedings is within its ken. The aforesaid language is, in fact, in consonance with the Chapter heading of Chapter V, Conduct of arbitral proceedings. Further, it is well settled that a marginal note can be used as an internal aid to interpretation of statutes only in order to show what is the general drift of the section. It may also be resorted to when the plain meaning of the section is not clear. In the present case we must go by the plain meaning ofn (5). This being the case, we find it difficult to appreciate the reasoning of the High Court. Also, in consonance with the modern rule of interpretation of statutes, the entire object of providing that a party may approach the Arbitral Tribunal instead of the Court for interim reliefs would be stultified if interim orders passed by such Tribunal are toothless. It is to give teeth to such orders that an express provision is made in Section 27(5) of the Act9. Coming to Shri Rana Mukherjees submission thatn (2) of Section 17 introduced by the 2015 Amendment Act now provides for the necessary remedy against infraction of interim orders by Tribunal, suffice it to state that the Law Commission itself, in its 246th report, found the need to go one step further than what was provided in Section 27(5) as construed by the Delhi High Court (supra)10. Pursuant to this report,) to Section 17 was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. Thus we do not find Shri Rana Mukherjees submission to be of any substance in view of the fact that Section 17(2) was enacted for the purpose of providing a complete solution to the problem | 1 | 2,947 | 484 | ### Instruction:
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Chapter V, Conduct of arbitral proceedings. Further, it is well settled that a marginal note can be used as an internal aid to interpretation of statutes only in order to show what is the general drift of the section. It may also be resorted to when the plain meaning of the section is not clear. In the present case we must go by the plain meaning of sub-section (5). This being the case, we find it difficult to appreciate the reasoning of the High Court. Also, in consonance with the modern rule of interpretation of statutes, the entire object of providing that a party may approach the Arbitral Tribunal instead of the Court for interim reliefs would be stultified if interim orders passed by such Tribunal are toothless. It is to give teeth to such orders that an express provision is made in Section 27(5) of the Act. 8. In fact, the Delhi High Court by the judgment dated 18th August, 2009, reported in 2009 (112) Delhi Reported Judgments 657, has correctly construed Section 27(5) of the Act. Further, it must be remembered that this Court in M/s Ambalal Sarabhai Enterprises v. M/s Amrit Lal & Co. & Anr. 2001(2) R.C.R.(Rent) 328 : (2001) 8 SCC 397 has held that parties to arbitration proceedings are put to an election as to whether to apply for interim relief before the Tribunal under Section 17 or before the Court under Section 9. Such election would be meaningless if interim orders passed by the Arbitral Tribunal were to be written in water, as all parties would then go only to the Court, which would render Section 17 a dead letter. 9. Coming to Shri Rana Mukherjees submission that sub-section (2) of Section 17 introduced by the 2015 Amendment Act now provides for the necessary remedy against infraction of interim orders by Tribunal, suffice it to state that the Law Commission itself, in its 246th report, found the need to go one step further than what was provided in Section 27(5) as construed by the Delhi High Court (supra). The Commission, in its report, had this to say: POWERS OF TRIBUNAL TO ORDER INTERIM MEASURES 46. Under section 17, the arbitral tribunal has the power to order interim measures of protection unless the parties have excluded such power by agreement. Section 17 is an important provision, which is crucial to the working of the arbitration system, since it ensures that even for the purposes of interim measures, the parties can approach the arbitral tribunal rather than await orders from a Court. The efficacy of section 17 is however, seriously compromised given the lack of any suitable statutory mechanism for the enforcement of such interim orders of the arbitral tribunal. 47. In Sundaram Finance Ltd. v. NEPC India Ltd., 1999(1) R.C.R.(Civil) 580 : (1999) 2 SCC 479 , the Supreme Court observed that though section 17 gives the arbitral tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that section 9 gives the court power to pass interim orders during the arbitration proceedings. Subsequently, in M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., 2003(4) R.C.R.(Civil) 767 : (2004) 9 SCC 619 the Court had held that under section 17 of the Act no power is conferred on the arbitral tribunal to enforce its order nor does it provide for judicial enforcement thereof. 48. In the face of such categorical judicial opinion, the Delhi High Court attempted to find a suitable legislative basis for enforcing the orders of the arbitral tribunal under Section 17 in the case of Sri Krishan v. Anand, (2009) 3 Arb LR 447 (Del) (followed in Indiabulls Financial Services v. Jubilee Plots, OMP Nos.452-453/2009 Order dated 18.08.2009). The Delhi High Court held that any person failing to comply with the order of the arbitral tribunal under section 17 would be deemed to be making any other default or guilty of any contempt to the arbitral tribunal during the conduct of the proceedings under section 27(5) of Act. The remedy of the aggrieved party would then be to apply to the arbitral tribunal for making a representation to the Court to mete out appropriate punishment. Once such a representation is received by the Court from the arbitral tribunal, the Court would be competent to deal with such party in default as if it is in contempt of an order of the Court, i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2A Code of Civil Procedure, 1908. 49. The Commission believes that while it is important to provide teeth to the interim orders of the arbitral tribunal as well as to provide for their enforcement, the judgment of the Delhi High Court in Sri Krishan v. Anand is not a complete solution. The Commission has, therefore, recommended amendments to section 17 of the Act which would give teeth to the orders of the Arbitral Tribunal and the same would be statutorily enforceable in the same manner as the Orders of a Court. In this respect, the views of the Commission are consistent with (though do not go as far as) the 2006 amendments to Article 17 of the UNCITRAL Model Law. 10. Pursuant to this report, sub-section(2) to Section 17 was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. Thus we do not find Shri Rana Mukherjees submission to be of any substance in view of the fact that Section 17(2) was enacted for the purpose of providing a complete solution to the problem.
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7. If Section 27(5) is read literally, there is no difficulty in accepting the plea of learned senior advocate for the appellant, because persons failing to attend in accordance with the court process fall under a separate category from any other default. Further, the Section is not confined to a person being guilty of contempt only when failing to attend in accordance with such process. The Section specifically states that persons guilty of any contempt to the Arbitral Tribunal during the conduct of the Arbitral proceedings is within its ken. The aforesaid language is, in fact, in consonance with the Chapter heading of Chapter V, Conduct of arbitral proceedings. Further, it is well settled that a marginal note can be used as an internal aid to interpretation of statutes only in order to show what is the general drift of the section. It may also be resorted to when the plain meaning of the section is not clear. In the present case we must go by the plain meaning ofn (5). This being the case, we find it difficult to appreciate the reasoning of the High Court. Also, in consonance with the modern rule of interpretation of statutes, the entire object of providing that a party may approach the Arbitral Tribunal instead of the Court for interim reliefs would be stultified if interim orders passed by such Tribunal are toothless. It is to give teeth to such orders that an express provision is made in Section 27(5) of the Act9. Coming to Shri Rana Mukherjees submission thatn (2) of Section 17 introduced by the 2015 Amendment Act now provides for the necessary remedy against infraction of interim orders by Tribunal, suffice it to state that the Law Commission itself, in its 246th report, found the need to go one step further than what was provided in Section 27(5) as construed by the Delhi High Court (supra)10. Pursuant to this report,) to Section 17 was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. Thus we do not find Shri Rana Mukherjees submission to be of any substance in view of the fact that Section 17(2) was enacted for the purpose of providing a complete solution to the problem
|
Jagdish Pandey Vs. The Chancellor University Of Bihar & Anr | be the actual qualification of the teacher appointed and confirmed before July 1, 1952 that qualification will be considered to be equal to the minimum qualification for the post he holds. The words "for the post he holds" are only descriptive and mean that if a person holds the post of a lecturer, his actual qualification will be considered to be equal to the minimum qualification of the lecturer; if he happens to hold the post of a Principal, his actual qualification will be considered to be equal to the minimum qualification required for the post of the Principal, even though in either of these cases the actual qualification is less than the minimum qualification. The obvious intention behind sub-r. (6) was to safeguard the interest of teachers already appointed and confirmed before July l, 1952, and that is why we find language which lays down that even though the actual qualification may be less than the minimum, that will be considered equivalent to the minimum. Once that equivalence is established by sub-r. (6), and it is held that even though the actual qualification was less, it was equal to the minimum qualification as provided by sub-r. (1), we fail to see how that deemed qualification can be given a go -by in the case of further promotion or appointment. 17. The appellant was a lecturer in Ramakrishna College, and though he had only a third class Masters degree, sub-r. (6) provided that that third class Masters degree must be treated as equivalent to the minimum qualification necessary for the lecturers post i. e. a second class Masters degree. Therefore, it must be held that from the date the sub-rule came into force, the appellant, though he actually had a third class Masters degree, must be deemed to have a second class Masters degree, which was the minimum qualification for the lecturers grade. Nothing has been pointed out to us in the Statutes which would take away this deemed qualification thereafter.We cannot therefore agree with the High Court that when sub-r. (6) says that a teacher appointed and confirmed before July 1, 1952 would be deemed to have the minimum qualification-though in fact he does not have it-it only provides for this deeming so long as he held the particular post he was holding on the date the Statutes came into force. That in our opinion is not the effect of the words "the post he holds", for these words are only descriptive and have to be there because the provision in R (1) (1) referred to three categories, namely, lecturers, professors and principals. We may in this connection refer to sub-r. (5) which shows that even if in future candidates with minimum qualification are not available, the Syndicate can relax the minimum qualification, thus indicating that the minimum qualifications are not absolutely rigid. But apart from this it appears to us that sub-r. (6) was made for the protection of teachers who were appointed and confirmed before July l, 1952, and by this deeming provision gave them the minimum qualifications and if that was so that must be for all purposes in future. If this were not the interpretation of sub-r. (6), another curious result would follow inasmuch as a lecturer could be appointed a college professor for which a second class Masters degree was not made the minimum qualification under sub-r. (1) but he could not be appointed a Principal on the interpretation pressed before us on behalf of the respondents. We should have thought that a good degree would be more necessary in the case of a professor whose main work is teaching than in the case of a principal whose main work is administrative. However that may be, we are of opinion that sub-r. (6) is meant for the protection of teachers who were appointed and confirmed before July 1, 1952, and it confers on them a qualification by its deeming provision and that must enure to their benefit for all time in future for the purpose of promotion or appointment to a higher grade in another college. 18. Another curious result would follow if the interpretation accepted by the High Court is correct. The High Court as we have pointed out above has held that sub-r. (6) gives equivalence only for the particular post held by a teacher appointed and confirmed before July 1, 1952. Suppose that a lecturer in one college who holds a third class Masters degree and is entitled to remain as lecturer in that college, for some reason is appointed to another college after the Statutes came into force.This would be a new appointment and such a lecturer could not be appointed in a new college because he would not have a second class Masters degree for the new appointment. It seems to us therefore that the intention of sub-r. (6) was not that for the purpose of the particular post actually held the equivalence would prevail but no more. We are of opinion that sub-r. (6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave the minimum qualification even though they may not actually have it. That minimum qualification must therefore remain with them always for the future, for nothing has been brought to our notice which takes away that minimum qualification deemed to be conferred on the teachers by sub-rule (6).We are therefore of opinion that the order dated February 18, 1963 passed by the Chancellor requiring the governing body of the Pandaul College to give the appellant a year or two to appear at an examination to enable him to obtain a second class Masters degree, otherwise his services might be terminated, is not valid, for the appellant must be deemed to have the minimum qualification of a second class Masters degree by virtue of sub-rule (6) of the Statutes and as such he was qualified for appointment as Principal of Pandual College. 19. | 1[ds]We are entitled to look into those reasons to see what was the state of affairs when S. 4 came to be passed and whether that state of affairs would justify making a special provision for teacher appointed, dismissed etc. between the two dates specified therein. The reason for these two dates appears to be that a bill for the establishment of the Commission which would have the effect of curtailing the powers of the governing bodies of affiliated colleges was on the anvil of the legislature. The report of the Joint Select Committee in that connection was made on November 27, 1961. Act II of l962 was passed after the report of the Joint Select Committee on January 19, 1962 and S. 48-A with respect to the Commission was actually put into force from March 1, 1962. The statement of objects and reasons also shows that irregularities had been brought to the notice of the Government as to appointments, dismissals etc. during this period and that led to the enactment of S. 4 of the Act by the legislature. In these circumstances it cannot be said that these dates in S. 4 are arbitrary. Taking the circumstances as they were when S. 4 came to be enacted and enforced, it cannot be said that teachers appointed etc. between these two dates did not form a class that would have nexus with the object to be achieved. In these circumstances we must hold that S. 4 cannot be struck down on the ground that it has fixed two arbitrary dates and has visited teachers appointed dismissed etc. between these two dates with a differential treatment as compared to teachers appointed before November 27, 1961We are of opinion that S. 4 must be read down and if we read it down there is no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor. It seems to us that the intention of the legislature was that all appointments, dismissals, etc. made between the two dates should be scrutinised and the scrutiny must be for the purpose of seeing that the appointments, dismissals etc. were in accordance with the University Act and the Statutes. Ordinances, Regulations and Rules framed thereunder, both in the matter of qualifications, and in the matter of procedure prescribed for these purposes. We do not think that the legislature intended more than that when it gave power to the Chancellor to scrutinise the appointments, dismissals, etc., made between these two dates. We have therefore no hesitation in reading down the Section and hold that it only authorises the Chancellor to scrutinise appointments, dismissals etc. made between these two dates for the purpose of satisfying himself that these appointments, dismissals etc., were in accordance with the University Act and the Statutes, Ordinances, Regulations or Rules made thereunder, both as to the substantive and procedural aspect thereof. If the appointments etc. were in accordance with the University Act etc., the Chancellor would uphold them, and if the were not, the Chancellor would pass such orders as he deemed fit. Read down this way, S. 4 does not confer uncanalised power on the Chancellor, as such it is not liable to be struck down as discriminatory under Art. 14It seems to us reasonable to hold that the Commission before making the recommendation would hear the teacher concerned, according to the rules of natural justice. This to our mind is implicit in the Section when it provides that the Commission has to make a recommendation, to the Chancellor on which the Chancellor will pass necessary orders. If an order is passed under S. 4 even though on the recommendation of the Commission but without complying with the principles of natural justice, that order would be bad and liable to be struck down as was done by the Patna High Court in AIR 1964 Pat 41 .But we have no difficulty in reading S. 4 as requiring that the Commission before it makes its recommendation must hear the teacher concerned according to principles of natural justice. Reading the Section therefore in this way - and that is the only way in which it can be read - we are of opinion that it cannot be struck down under Art. 14 of the Constitution as discriminatoryWe are of opinion that S. 4 was enacted to meet a particular situation as we have already indicated above, and in that situation the approval by the University of the Chancellors order would be quite out of place. Section 4 cannot be struck down as discriminatory on this groundWe therefore read S. 4 in the manner indicated above both as to the limit of the Chancellors power while passing an order thereunder and as to the necessity of the Commission giving a hearing to the teacher concerned before making the recommendation, and so read we are of opinion that S. 4 cannot be held to be discriminatory and as such liable to be struck down under Art. 14 of the Constitution. It is true that the subsequent proceedings were in form as if they were for the review or modification of the order of August 18, 1962-and it is doubtful whether S. 4 provides for review of an order once passed.It seems to us that in substance what happened was that the order of August 18, 1962 was not given effect to when it was realised that it might be illegal and thereafter action was taken to give notice to the appellant and a hearing before passing an order under S. 4. Here again the order of February 18, 1963 is in form an order modifying the order of August 18, 1962, but in substance it should be taken as a fresh order under S. 4 after giving opportunity to the appellant to represent his case before the Commission. The order made on February 18, 1963 therefore cannot be said to suffer from the defect that it was passed without observing the principles of natural justice. As for the order of August 18, 1962, it must be taken to have fallen when action was taken to give notice to the appellant on November 8, l962 and pass a fresh order on February 18, 1963 after giving a proper hearing. In the circumstances it is not necessary to quash the order of August 18, 1962, for it fell when further proceedings were taken after notice to the appellant. Further as to the order of February 18, 1963 it must be treated to be a fresh order and as it is not defective on the ground that the principles of natural justice had been violated, it cannot be struck down on that groundTherefore, it must be held that from the date the sub-rule came into force, the appellant, though he actually had a third class Masters degree, must be deemed to have a second class Masters degree, which was the minimum qualification for the lecturers grade. Nothing has been pointed out to us in the Statutes which would take away this deemed qualification thereafter.We cannot therefore agree with the High Court that when sub-r. (6) says that a teacher appointed and confirmed before July 1, 1952 would be deemed to have the minimum qualification-though in fact he does not have it-it only provides for this deeming so long as he held the particular post he was holding on the date the Statutes came into force. That in our opinion is not the effect of the words "the post he holds", for these words are only descriptive and have to be there because the provision in R (1) (1) referred to three categories, namely, lecturers, professors and principals. We may in this connection refer to sub-r. (5) which shows that even if in future candidates with minimum qualification are not available, the Syndicate can relax the minimum qualification, thus indicating that the minimum qualifications are not absolutely rigid. But apart from this it appears to us that sub-r. (6) was made for the protection of teachers who were appointed and confirmed before July l, 1952, and by this deeming provision gave them the minimum qualifications and if that was so that must be for all purposes in future. If this were not the interpretation of sub-r. (6), another curious result would follow inasmuch as a lecturer could be appointed a college professor for which a second class Masters degree was not made the minimum qualification under sub-r. (1) but he could not be appointed a Principal on the interpretation pressed before us on behalf of the respondents. We should have thought that a good degree would be more necessary in the case of a professor whose main work is teaching than in the case of a principal whose main work is administrative. However that may be, we are of opinion that sub-r. (6) is meant for the protection of teachers who were appointed and confirmed before July 1, 1952, and it confers on them a qualification by its deeming provision and that must enure to their benefit for all time in future for the purpose of promotion or appointment to a higher grade in another collegeAnother curious result would follow if the interpretation accepted by the High Court is correct. The High Court as we have pointed out above has held that sub-r. (6) gives equivalence only for the particular post held by a teacher appointed and confirmed before July 1, 1952. Suppose that a lecturer in one college who holds a third class Masters degree and is entitled to remain as lecturer in that college, for some reason is appointed to another college after the Statutes came into force.This would be a new appointment and such a lecturer could not be appointed in a new college because he would not have a second class Masters degree for the new appointment. It seems to us therefore that the intention of sub-r. (6) was not that for the purpose of the particular post actually held the equivalence would prevail but no more. We are of opinion that sub-r. (6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave the minimum qualification even though they may not actually have it. That minimum qualification must therefore remain with them always for the future, for nothing has been brought to our notice which takes away that minimum qualification deemed to be conferred on the teachers by sub-rule (6).We are therefore of opinion that the order dated February 18, 1963 passed by the Chancellor requiring the governing body of the Pandaul College to give the appellant a year or two to appear at an examination to enable him to obtain a second class Masters degree, otherwise his services might be terminated, is not valid, for the appellant must be deemed to have the minimum qualification of a second class Masters degree by virtue of sub-rule (6) of the Statutes and as such he was qualified for appointment as Principal of Pandual College. | 1 | 5,107 | 2,006 | ### Instruction:
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be the actual qualification of the teacher appointed and confirmed before July 1, 1952 that qualification will be considered to be equal to the minimum qualification for the post he holds. The words "for the post he holds" are only descriptive and mean that if a person holds the post of a lecturer, his actual qualification will be considered to be equal to the minimum qualification of the lecturer; if he happens to hold the post of a Principal, his actual qualification will be considered to be equal to the minimum qualification required for the post of the Principal, even though in either of these cases the actual qualification is less than the minimum qualification. The obvious intention behind sub-r. (6) was to safeguard the interest of teachers already appointed and confirmed before July l, 1952, and that is why we find language which lays down that even though the actual qualification may be less than the minimum, that will be considered equivalent to the minimum. Once that equivalence is established by sub-r. (6), and it is held that even though the actual qualification was less, it was equal to the minimum qualification as provided by sub-r. (1), we fail to see how that deemed qualification can be given a go -by in the case of further promotion or appointment. 17. The appellant was a lecturer in Ramakrishna College, and though he had only a third class Masters degree, sub-r. (6) provided that that third class Masters degree must be treated as equivalent to the minimum qualification necessary for the lecturers post i. e. a second class Masters degree. Therefore, it must be held that from the date the sub-rule came into force, the appellant, though he actually had a third class Masters degree, must be deemed to have a second class Masters degree, which was the minimum qualification for the lecturers grade. Nothing has been pointed out to us in the Statutes which would take away this deemed qualification thereafter.We cannot therefore agree with the High Court that when sub-r. (6) says that a teacher appointed and confirmed before July 1, 1952 would be deemed to have the minimum qualification-though in fact he does not have it-it only provides for this deeming so long as he held the particular post he was holding on the date the Statutes came into force. That in our opinion is not the effect of the words "the post he holds", for these words are only descriptive and have to be there because the provision in R (1) (1) referred to three categories, namely, lecturers, professors and principals. We may in this connection refer to sub-r. (5) which shows that even if in future candidates with minimum qualification are not available, the Syndicate can relax the minimum qualification, thus indicating that the minimum qualifications are not absolutely rigid. But apart from this it appears to us that sub-r. (6) was made for the protection of teachers who were appointed and confirmed before July l, 1952, and by this deeming provision gave them the minimum qualifications and if that was so that must be for all purposes in future. If this were not the interpretation of sub-r. (6), another curious result would follow inasmuch as a lecturer could be appointed a college professor for which a second class Masters degree was not made the minimum qualification under sub-r. (1) but he could not be appointed a Principal on the interpretation pressed before us on behalf of the respondents. We should have thought that a good degree would be more necessary in the case of a professor whose main work is teaching than in the case of a principal whose main work is administrative. However that may be, we are of opinion that sub-r. (6) is meant for the protection of teachers who were appointed and confirmed before July 1, 1952, and it confers on them a qualification by its deeming provision and that must enure to their benefit for all time in future for the purpose of promotion or appointment to a higher grade in another college. 18. Another curious result would follow if the interpretation accepted by the High Court is correct. The High Court as we have pointed out above has held that sub-r. (6) gives equivalence only for the particular post held by a teacher appointed and confirmed before July 1, 1952. Suppose that a lecturer in one college who holds a third class Masters degree and is entitled to remain as lecturer in that college, for some reason is appointed to another college after the Statutes came into force.This would be a new appointment and such a lecturer could not be appointed in a new college because he would not have a second class Masters degree for the new appointment. It seems to us therefore that the intention of sub-r. (6) was not that for the purpose of the particular post actually held the equivalence would prevail but no more. We are of opinion that sub-r. (6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave the minimum qualification even though they may not actually have it. That minimum qualification must therefore remain with them always for the future, for nothing has been brought to our notice which takes away that minimum qualification deemed to be conferred on the teachers by sub-rule (6).We are therefore of opinion that the order dated February 18, 1963 passed by the Chancellor requiring the governing body of the Pandaul College to give the appellant a year or two to appear at an examination to enable him to obtain a second class Masters degree, otherwise his services might be terminated, is not valid, for the appellant must be deemed to have the minimum qualification of a second class Masters degree by virtue of sub-rule (6) of the Statutes and as such he was qualified for appointment as Principal of Pandual College. 19.
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were in form as if they were for the review or modification of the order of August 18, 1962-and it is doubtful whether S. 4 provides for review of an order once passed.It seems to us that in substance what happened was that the order of August 18, 1962 was not given effect to when it was realised that it might be illegal and thereafter action was taken to give notice to the appellant and a hearing before passing an order under S. 4. Here again the order of February 18, 1963 is in form an order modifying the order of August 18, 1962, but in substance it should be taken as a fresh order under S. 4 after giving opportunity to the appellant to represent his case before the Commission. The order made on February 18, 1963 therefore cannot be said to suffer from the defect that it was passed without observing the principles of natural justice. As for the order of August 18, 1962, it must be taken to have fallen when action was taken to give notice to the appellant on November 8, l962 and pass a fresh order on February 18, 1963 after giving a proper hearing. In the circumstances it is not necessary to quash the order of August 18, 1962, for it fell when further proceedings were taken after notice to the appellant. Further as to the order of February 18, 1963 it must be treated to be a fresh order and as it is not defective on the ground that the principles of natural justice had been violated, it cannot be struck down on that groundTherefore, it must be held that from the date the sub-rule came into force, the appellant, though he actually had a third class Masters degree, must be deemed to have a second class Masters degree, which was the minimum qualification for the lecturers grade. Nothing has been pointed out to us in the Statutes which would take away this deemed qualification thereafter.We cannot therefore agree with the High Court that when sub-r. (6) says that a teacher appointed and confirmed before July 1, 1952 would be deemed to have the minimum qualification-though in fact he does not have it-it only provides for this deeming so long as he held the particular post he was holding on the date the Statutes came into force. That in our opinion is not the effect of the words "the post he holds", for these words are only descriptive and have to be there because the provision in R (1) (1) referred to three categories, namely, lecturers, professors and principals. We may in this connection refer to sub-r. (5) which shows that even if in future candidates with minimum qualification are not available, the Syndicate can relax the minimum qualification, thus indicating that the minimum qualifications are not absolutely rigid. But apart from this it appears to us that sub-r. (6) was made for the protection of teachers who were appointed and confirmed before July l, 1952, and by this deeming provision gave them the minimum qualifications and if that was so that must be for all purposes in future. If this were not the interpretation of sub-r. (6), another curious result would follow inasmuch as a lecturer could be appointed a college professor for which a second class Masters degree was not made the minimum qualification under sub-r. (1) but he could not be appointed a Principal on the interpretation pressed before us on behalf of the respondents. We should have thought that a good degree would be more necessary in the case of a professor whose main work is teaching than in the case of a principal whose main work is administrative. However that may be, we are of opinion that sub-r. (6) is meant for the protection of teachers who were appointed and confirmed before July 1, 1952, and it confers on them a qualification by its deeming provision and that must enure to their benefit for all time in future for the purpose of promotion or appointment to a higher grade in another collegeAnother curious result would follow if the interpretation accepted by the High Court is correct. The High Court as we have pointed out above has held that sub-r. (6) gives equivalence only for the particular post held by a teacher appointed and confirmed before July 1, 1952. Suppose that a lecturer in one college who holds a third class Masters degree and is entitled to remain as lecturer in that college, for some reason is appointed to another college after the Statutes came into force.This would be a new appointment and such a lecturer could not be appointed in a new college because he would not have a second class Masters degree for the new appointment. It seems to us therefore that the intention of sub-r. (6) was not that for the purpose of the particular post actually held the equivalence would prevail but no more. We are of opinion that sub-r. (6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave the minimum qualification even though they may not actually have it. That minimum qualification must therefore remain with them always for the future, for nothing has been brought to our notice which takes away that minimum qualification deemed to be conferred on the teachers by sub-rule (6).We are therefore of opinion that the order dated February 18, 1963 passed by the Chancellor requiring the governing body of the Pandaul College to give the appellant a year or two to appear at an examination to enable him to obtain a second class Masters degree, otherwise his services might be terminated, is not valid, for the appellant must be deemed to have the minimum qualification of a second class Masters degree by virtue of sub-rule (6) of the Statutes and as such he was qualified for appointment as Principal of Pandual College.
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Russa H. Mehta Trust, Bombay Vs. Commissioner Of Income-Tax, Bombay City I | the territories of the merged States. It is contended that by paragraph 4 it was intended not only to give the benefit of the State rate of taxation to residents of the former Indian States which were merged with the Provinces under the States Merger (Governors Provinces) Order, 1949, but also to preserve the benefit which was conferred by S. 14 (2)(c) of the Income-tax Act to residents of the territories of British India before August 15, 1947 in respect of income arising or accruing to them within the territory of the merged States. It is said that by the application of Act 67 of 1949 all residents in the taxable territory became liable to pay tax at Indian rates, but with a view to maintain the status quo ante, it was intended by the Taxation Concessions Order, 1949 to restore the State rates of taxation to residents in the former Indian States and also to continue the exemption in respect of the income of the former British Indian residents arising or accruing in the territory of the merged States within the limits prescribed by S. 14 (2) (c). But paragraph 4 of the Taxation Concessions Order 1949, is not susceptible of any such interpretation. Paragraph 4 of the Order, and Ss. 3,4,4-A, 4-B and S. 14 (2) (c) of the Income-tax Act must be read together. The Indian States specified in the Schedule to the States Merger Order on their merger with the provinces of British India ceased to be separate entities and became part of British India, and by the application of Act 67 of 1949 the Indian Income-tax Act was applied to the territories comprised within British India. Section 14 (2) (c) undoubtedly remained in force even after the merger of the Indian States effected by the States Merger Order, but its operation was restricted. After the merger of the States, income arising or accruing within the territory of such merged State, could not be deemed to be income arising or accruing within an Indian State for the State had ceased to exist, and the income was for the purpose of S. 4 of the Income-tax Act income arising or accruing to a person resident within the taxable territories. There is nothing in paragraph 4 of the Concessions Order which seeks to grant exemption from liability to tax in respect of income which prior to merger of the States was not liable to tax by virtue of S. 14 (2) (c) but has since the application of the Income-tax Act become so liable.6. The claim that paragraph 4 applies to income of residents of former British India which was exempt from taxation under Section 14 (2) (c) is belied by the plain words of the Order. Paragraph 4 does not substantively grant any exemption, it merely designates income to which the provisions of the Order granting exemption will apply. It applies to income which would, if Act 67 of 1949 had not passed, have been regarded as accruing or arising in an Indian State and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under S. 14 (2) (c). The use of the expression “had he been a resident" implies that the benefit is not to ensure to persons who were before the merger entitled to the exemption under S. 14 (2) (c).7. The Order provides that paragraphs 5,6,9,10 and 11 apply to a slice of income and not to the entire income of an assessee, and by the express terms it is that slice of the income, as would, had the assessee been resident in the taxable territories, have been exempt under Cl. (c) of sub-s. (2) of S. 14 of the Indian Income-tax Act, if the Taxation Laws Act, 1949, had not been passed. In terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.8. It is true that by this interpretation of paragraph 4, British Indian residents are denied the benefit of the exemption under S. 14 (2) (c) in respect of income arising or accruing in the territories of the former merged States. But that denial is the result of merger of the States into British India. The operation of S. 14 (2) (c) had become restricted by the modification of the definition of British India. Since that amendment, income accruing or arising after the merger in Indian States outside British India alone would be exempt under S. 14 (2) (c). There is nothing in the Concessions Order which suggests that it was intended to ensure continuance of the exemption under S. 14 (2) (c) to residents of British India as it was before merger, as if the merger had not taken place. The use of the expression "had he been resident in the taxable territories" introduces a fiction; it grants the benefit of S. 14 (2) (c), though on the express terms it is not available to a person who was not before the merger covered thereby, and in respect of income which would have been if the Merger Act had not been passed, exempt from taxation in his hands, if he had been resident in British India. In our view, Chagla C. J., was right in observing in Mrs. Kusumben D. Mahadevias case. I. T. Ref. No. 28 of 1955, dated 20-2-1956 (Bom - unrep.) that:"A person resident in a Merged State, whose income accrued to him there, could out possibly claim exemption under Section 14 (2)(c). Such an exemption could only be claimed by a person resident in the taxable territories. In order to give this particular concession to a resident in a merged State this paragraph was enacted, and the particular language which we find in this paragraph was used."9. In the view we have taken on the first question, it is unnecessary to record an answer on the second question.10 | 0[ds]6. The claim that paragraph 4 applies to income of residents of former British India which was exempt from taxation under Section 14 (2) (c) is belied by the plain words of the Order. Paragraph 4 does not substantively grant any exemption, it merely designates income to which the provisions of the Order granting exemption will apply. It applies to income which would, if Act 67 of 1949 had not passed, have been regarded as accruing or arising in an Indian State and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under S. 14 (2) (c). The use of the expressionhe been a resident" implies that the benefit is not to ensure to persons who were before the merger entitled to the exemption under S. 14 (2) (c).7. The Order provides that paragraphs 5,6,9,10 and 11 apply to a slice of income and not to the entire income of an assessee, and by the express terms it is that slice of the income, as would, had the assessee been resident in the taxable territories, have been exempt under Cl. (c) of sub-s. (2) of S. 14 of the Indian Income-tax Act, if the Taxation Laws Act, 1949, had not been passed. In terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.8. It is true that by this interpretation of paragraph 4, British Indian residents are denied the benefit of the exemption under S. 14 (2) (c) in respect of income arising or accruing in the territories of the former merged States. But that denial is the result of merger of the States into British India. The operation of S. 14 (2) (c) had become restricted by the modification of the definition of British India. Since that amendment, income accruing or arising after the merger in Indian States outside British India alone would be exempt under S. 14 (2) (c). There is nothing in the Concessions Order which suggests that it was intended to ensure continuance of the exemption under S. 14 (2) (c) to residents of British India as it was before merger, as if the merger had not taken place. The use of the expression "had he been resident in the taxable territories" introduces a fiction; it grants the benefit of S. 14 (2) (c), though on the express terms it is not available to a person who was not before the merger covered thereby, and in respect of income which would have been if the Merger Act had not been passed, exempt from taxation in his hands, if he had been resident in British India. In our view, Chagla C. J., was right in observing in Mrs. Kusumben D. Mahadevias case. I. T. Ref. No. 28 of 1955, dated 20-2-1956 (Bom - unrep.)person resident in a Merged State, whose income accrued to him there, could out possibly claim exemption under Section 14 (2)(c). Such an exemption could only be claimed by a person resident in the taxable territories. In order to give this particular concession to a resident in a merged State this paragraph was enacted, and the particular language which we find in this paragraph was used." | 0 | 3,620 | 651 | ### Instruction:
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the territories of the merged States. It is contended that by paragraph 4 it was intended not only to give the benefit of the State rate of taxation to residents of the former Indian States which were merged with the Provinces under the States Merger (Governors Provinces) Order, 1949, but also to preserve the benefit which was conferred by S. 14 (2)(c) of the Income-tax Act to residents of the territories of British India before August 15, 1947 in respect of income arising or accruing to them within the territory of the merged States. It is said that by the application of Act 67 of 1949 all residents in the taxable territory became liable to pay tax at Indian rates, but with a view to maintain the status quo ante, it was intended by the Taxation Concessions Order, 1949 to restore the State rates of taxation to residents in the former Indian States and also to continue the exemption in respect of the income of the former British Indian residents arising or accruing in the territory of the merged States within the limits prescribed by S. 14 (2) (c). But paragraph 4 of the Taxation Concessions Order 1949, is not susceptible of any such interpretation. Paragraph 4 of the Order, and Ss. 3,4,4-A, 4-B and S. 14 (2) (c) of the Income-tax Act must be read together. The Indian States specified in the Schedule to the States Merger Order on their merger with the provinces of British India ceased to be separate entities and became part of British India, and by the application of Act 67 of 1949 the Indian Income-tax Act was applied to the territories comprised within British India. Section 14 (2) (c) undoubtedly remained in force even after the merger of the Indian States effected by the States Merger Order, but its operation was restricted. After the merger of the States, income arising or accruing within the territory of such merged State, could not be deemed to be income arising or accruing within an Indian State for the State had ceased to exist, and the income was for the purpose of S. 4 of the Income-tax Act income arising or accruing to a person resident within the taxable territories. There is nothing in paragraph 4 of the Concessions Order which seeks to grant exemption from liability to tax in respect of income which prior to merger of the States was not liable to tax by virtue of S. 14 (2) (c) but has since the application of the Income-tax Act become so liable.6. The claim that paragraph 4 applies to income of residents of former British India which was exempt from taxation under Section 14 (2) (c) is belied by the plain words of the Order. Paragraph 4 does not substantively grant any exemption, it merely designates income to which the provisions of the Order granting exemption will apply. It applies to income which would, if Act 67 of 1949 had not passed, have been regarded as accruing or arising in an Indian State and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under S. 14 (2) (c). The use of the expression “had he been a resident" implies that the benefit is not to ensure to persons who were before the merger entitled to the exemption under S. 14 (2) (c).7. The Order provides that paragraphs 5,6,9,10 and 11 apply to a slice of income and not to the entire income of an assessee, and by the express terms it is that slice of the income, as would, had the assessee been resident in the taxable territories, have been exempt under Cl. (c) of sub-s. (2) of S. 14 of the Indian Income-tax Act, if the Taxation Laws Act, 1949, had not been passed. In terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.8. It is true that by this interpretation of paragraph 4, British Indian residents are denied the benefit of the exemption under S. 14 (2) (c) in respect of income arising or accruing in the territories of the former merged States. But that denial is the result of merger of the States into British India. The operation of S. 14 (2) (c) had become restricted by the modification of the definition of British India. Since that amendment, income accruing or arising after the merger in Indian States outside British India alone would be exempt under S. 14 (2) (c). There is nothing in the Concessions Order which suggests that it was intended to ensure continuance of the exemption under S. 14 (2) (c) to residents of British India as it was before merger, as if the merger had not taken place. The use of the expression "had he been resident in the taxable territories" introduces a fiction; it grants the benefit of S. 14 (2) (c), though on the express terms it is not available to a person who was not before the merger covered thereby, and in respect of income which would have been if the Merger Act had not been passed, exempt from taxation in his hands, if he had been resident in British India. In our view, Chagla C. J., was right in observing in Mrs. Kusumben D. Mahadevias case. I. T. Ref. No. 28 of 1955, dated 20-2-1956 (Bom - unrep.) that:"A person resident in a Merged State, whose income accrued to him there, could out possibly claim exemption under Section 14 (2)(c). Such an exemption could only be claimed by a person resident in the taxable territories. In order to give this particular concession to a resident in a merged State this paragraph was enacted, and the particular language which we find in this paragraph was used."9. In the view we have taken on the first question, it is unnecessary to record an answer on the second question.10
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6. The claim that paragraph 4 applies to income of residents of former British India which was exempt from taxation under Section 14 (2) (c) is belied by the plain words of the Order. Paragraph 4 does not substantively grant any exemption, it merely designates income to which the provisions of the Order granting exemption will apply. It applies to income which would, if Act 67 of 1949 had not passed, have been regarded as accruing or arising in an Indian State and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under S. 14 (2) (c). The use of the expressionhe been a resident" implies that the benefit is not to ensure to persons who were before the merger entitled to the exemption under S. 14 (2) (c).7. The Order provides that paragraphs 5,6,9,10 and 11 apply to a slice of income and not to the entire income of an assessee, and by the express terms it is that slice of the income, as would, had the assessee been resident in the taxable territories, have been exempt under Cl. (c) of sub-s. (2) of S. 14 of the Indian Income-tax Act, if the Taxation Laws Act, 1949, had not been passed. In terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.8. It is true that by this interpretation of paragraph 4, British Indian residents are denied the benefit of the exemption under S. 14 (2) (c) in respect of income arising or accruing in the territories of the former merged States. But that denial is the result of merger of the States into British India. The operation of S. 14 (2) (c) had become restricted by the modification of the definition of British India. Since that amendment, income accruing or arising after the merger in Indian States outside British India alone would be exempt under S. 14 (2) (c). There is nothing in the Concessions Order which suggests that it was intended to ensure continuance of the exemption under S. 14 (2) (c) to residents of British India as it was before merger, as if the merger had not taken place. The use of the expression "had he been resident in the taxable territories" introduces a fiction; it grants the benefit of S. 14 (2) (c), though on the express terms it is not available to a person who was not before the merger covered thereby, and in respect of income which would have been if the Merger Act had not been passed, exempt from taxation in his hands, if he had been resident in British India. In our view, Chagla C. J., was right in observing in Mrs. Kusumben D. Mahadevias case. I. T. Ref. No. 28 of 1955, dated 20-2-1956 (Bom - unrep.)person resident in a Merged State, whose income accrued to him there, could out possibly claim exemption under Section 14 (2)(c). Such an exemption could only be claimed by a person resident in the taxable territories. In order to give this particular concession to a resident in a merged State this paragraph was enacted, and the particular language which we find in this paragraph was used."
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Air India Ltd. Vs. Vishal Capoor | writ petitioners are senior in the list and seniority over and above respondents 4 to 9" was in the circumstances narrated, factually wrong. But assuming the conclusion was correct, nevertheless, having regard to the decisions of this Court earlier noted, it is still open for the Adhikari group to challenge the the 1998 Settlement on the ground of lack of bonafides, arbitrariness, fraud etc. Such a challenge to the 1998 Settlement cannot of course be decided in a writ proceeding as has been already held by the High Court. W.P.2930 of 1999. 40. According to the appellants and the Adhikari group, the 1998 Settlement cannot in any event be termed to be a final settlement under Section 18(3) of the Industrial Disputes Act, 1947 because of Clause (16) to the 1998 Settlement which provided:- "16. Both the parties agree that this settlement will be filed before the Honble National Indistrial Tribunal, in the pending reference No.NTB-1 of 1990 and Consent Award will be obtained accordingly." 41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act. 42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 1999. 43. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 . 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal. 45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training. 46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal. 47. | 1[ds]31. In our opinion the High Court erred in rejecting the preliminary objection of the respondents 7 to 12 viz. that the writ petitioners should have been left to pursue their grievance relating to the breach of Clause 7 (C) of the 1998 settlement before the appropriate forum under the Industrial Disputes Act, 1947. There was a serious factual controversy as was noted by the High Court itself in paragraph 22 of its judgment. It had been contended by the Adhikari group that the 1998 Settlement was vitiated by fraud and malafides on the part of the office bearers of the Guild and some Officers of the first appellant. The claim of the Adhikari group which has been reiterated before us is that senior officers of the Guild and the first appellant fraudulently agreed to clause 7(C) of the 1998 settlement so that their sons and daughters who were CPL holders were given undue benefit in deviation from the established requirements and practice of the first appellant. Such allegations if proved would be sufficient to set aside the 1998 Settlement in so far as it affected seniority of the Adhikari group. There is a long line of authority insupport of this proposition (See for example Herbertsons Ltd. vs. The Workmen of Herbertsones Ltd. & Anr. (1976) 4 SCC 736 , 742; KCP Ltd. vs. Presiding Officer (1996) 10 SCC 446 and National Engineering Industries Ltd. vs. State of Rajasthan (2000) 1 SCC 371 , 393). This was also the finding of the High Court in W.P.No.2930 of 1999. Sufficient particulars in support of these allegations had been given. The Conciliation Officer, the Committee set up by the Chairman of Air India, and the Chairman himself had founded that an injustice had been done to the Adhikari group. The opinions expressed have not been held by the High Court to be without substance. Indeed the High Court did not consider any of this because it was held, incorrectly as we have held later in our opinion, that the issues raised had been concluded by the earlier decision of coordinate Benches in W.P.(L) No.1615 of 1997 and WP (c) No. 2930 of 199932. A disputed question of fact will normally arise when a petitioner puts forward a case on facts which are controverted by the respondents. This is naturally so, as it cannot be expected that the petitioner will of his, her or its own say that the facts forming the basis of the claim are disputed. Although it may happen that the Court on a scrutiny of the nature of the claim made in the petition may come to a conclusion that the factual issues raised are ex facie controversial and decline, in limine, to exercise jurisdiction under Art. 226, nevertheless the controversy usually surfaces after the respondents have had an opportunity of giving their version of the matter. That was what happened in the present case. The writ petitioners rested their case on clause 7(C) read with Annexure D to the 1998 settlement. The respondents pleaded that the settlement was vitiated by fraud. Obviously, the burden of proving this would be on the respondents. No court or tribunal has tested the allegations made by the Adhikari group on merits till today. The High Court shut out the allegations altogether for two reasons. The first reason was that it would amount to entertaining a separate cause of action. The conclusion was erroneous as it was based on a confusion between onus of proof and cause of action35. Although the view expressed in W.P.(L) No.1615 of 1997 is erroneous, nevertheless, the question whether the 1989 settlement can found an enforceable right in the respondents 7 to 12 is concluded against them. But the decision would not debar the raising of a dispute that the 1998 settlement was vitiated by fraud, corruption as the settlement was entered into after those proceedings were concluded before the High court. Furthermore, although the decision precludes the Adhikari group from claiming a right under the 1989 settlement, they can certainly rely upon it as evidencing a continuation of an established practice and requirement. It would also be open to the Adhikari group to rely on all other factors in support of their claim for seniority over the CPL holders36. By the decision in W.P. No.2930 of 1999, however, the High Court had not held that one clause in the Settlement cannot be challenged in isolation. A doubt had merely been expressed but no firm conclusion had been arrived. Nor had the Court decided the merits of the Adhikari groups grievance at all. What the High Court had in fact decided was that the issues of fraud etc. raised could not be decided in exercise of the Courts jurisdiction under Article 226.It expressly left the issues to be decided on a deeper consideration by the Industrial Tribunal. This is abundantly clear from the passages from the judgment dated 14th November, 2000 quoted by us37. Another error in the decision impugned before us was the refusal to allow the respondents 7 to 12 to raise their claim regarding their seniority because they had withdrawn their complaint under Section 33A of the Industrial Disputes Act 1947. It is nobodys case that the complaint of the Adhikari group under Section 33A was legally maintainable in Reference No. NTB 1 of 1990. In fact both the first appellant and the Guild had opposed the complaint on this ground. Section 33A allows a complaint to be filed in a pending reference where an employer contravenes the provisions of Section 33 of the 1947 Act during the pendency of proceedings pursuant to a reference under Section 10(1) of the 1947 Act. The relevant portion in Section 33(1)(a) prohibits an employer from altering, to the prejudice of the "workmen concerned in such dispute", the conditions of service applicable to them immediately before the commencement of the proceeding. There was no pending proceeding relating to any dispute between Air India and its workmen in which the Adhikari group could have filed a complaint under Section 33A. The dispute which was pending before the Tribunal in Reference No.NTB-1 of 1990 did not relate to a dispute between the first appellant and its workmen. It related to a dispute between Indian Airlines and its workmen basically on the question whether the latter were entitled to the same terms and conditions of service as the employees of the first appellant. The award which has since been made on the reference by the Tribunal also records:"This reference cannot cover any industrial dispute between Air India and its workmen as the order of the Central Govt. is confined to dispute between (Indian) Airlines and its workmen"41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 199943. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal | 1 | 8,094 | 2,138 | ### 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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writ petitioners are senior in the list and seniority over and above respondents 4 to 9" was in the circumstances narrated, factually wrong. But assuming the conclusion was correct, nevertheless, having regard to the decisions of this Court earlier noted, it is still open for the Adhikari group to challenge the the 1998 Settlement on the ground of lack of bonafides, arbitrariness, fraud etc. Such a challenge to the 1998 Settlement cannot of course be decided in a writ proceeding as has been already held by the High Court. W.P.2930 of 1999. 40. According to the appellants and the Adhikari group, the 1998 Settlement cannot in any event be termed to be a final settlement under Section 18(3) of the Industrial Disputes Act, 1947 because of Clause (16) to the 1998 Settlement which provided:- "16. Both the parties agree that this settlement will be filed before the Honble National Indistrial Tribunal, in the pending reference No.NTB-1 of 1990 and Consent Award will be obtained accordingly." 41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act. 42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 1999. 43. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 . 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal. 45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training. 46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal. 47.
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of the 1947 Act. The relevant portion in Section 33(1)(a) prohibits an employer from altering, to the prejudice of the "workmen concerned in such dispute", the conditions of service applicable to them immediately before the commencement of the proceeding. There was no pending proceeding relating to any dispute between Air India and its workmen in which the Adhikari group could have filed a complaint under Section 33A. The dispute which was pending before the Tribunal in Reference No.NTB-1 of 1990 did not relate to a dispute between the first appellant and its workmen. It related to a dispute between Indian Airlines and its workmen basically on the question whether the latter were entitled to the same terms and conditions of service as the employees of the first appellant. The award which has since been made on the reference by the Tribunal also records:"This reference cannot cover any industrial dispute between Air India and its workmen as the order of the Central Govt. is confined to dispute between (Indian) Airlines and its workmen"41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 199943. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal
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Ouchterloney Valley Estates Limited Vs. State of Kerala | that condition has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such purchased or accepted, but to take into account the substance of these conditions. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the Prompt Day, or 24 hours before removal of goods, whichever event happens earlier. The Prompt Day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.m. on the fifth day after the Prompt Day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5P.M. on the fifth day after the Prompt Day or until removal by the buyer if removed earlier (condition No. 23). Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed on inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot male a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof. Condition 13 is also important. It reads thus "Each chest comprised in a lot shall be treated as the subject of a separate contract of sale; but this condition shall not entitle the buyer to require the seller to give part delivery of less than the full number of chests sold; and in the event of the buyer claiming to reject the lot purchased by him, the Arbitrators or Umpire, if satisfied that the lot was not a good tender, shall be entitled to award rejection of the entire lot, and not only the particular chests found on examination to be defective". It would be noticed that the first part of condition 13 corresponds to s. 64(1) of the Act. It, however, adds that though each chest shall be treated as the subject-matter of a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good. tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction.7. Condition 13 makes it clear that in case the buyer finds a substantial defect in the quality of the goods -sold to him, he cannot reject the contract of his own; all he can do is to make a claim in that behalf before the Arbitrator; and this condition is consistent only with the view that the goods have already been purchased by the buyer and the claim which he is allowed to make is as a result of the breach of the contract of sale.Mr. Menon attempted to argue that condition 13 merely en- able the buyer to move the Arbitrator. According to him, the buyer can reject the contract of his own, or file a claim for damages in a civil court without having recourse to arbitration. In our opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the arbitrator for appropriate relief. Condition 15 is also relevant. It reads thus:- "If the Buyer shall fail to pay for the tea or any part thereof on the due date for payment, the goods may be resold. either by auction or private sale, at the option of the seller. Any loss arising on such resale, together with interest at 6 per cent per annum from the due date and all charges incurred, shall be paid by the buyer to the seller, and the buyer shall not be entitled to any profit, which may accrue from such -resale". This condition is consistent with the provisions of s. 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.8. Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.9. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under s. 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot. in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales-tax authorities were justified in imposing sales-tax against the appellants in regard to the transactions which have given rise to the present appeals.Th | 1[ds]Condition 13 makes it clear that in case the buyer finds a substantial defect in the quality of the goods -sold to him, he cannot reject the contract of his own; all he can do is to make a claim in that behalf before the Arbitrator; and this condition is consistent only with the view that the goods have already been purchased by the buyer and the claim which he is allowed to make is as a result of the breach of the contract of sale.Mr. Menon attempted to argue that condition 13 merely en- able the buyer to move the Arbitrator. According to him, the buyer can reject the contract of his own, or file a claim for damages in a civil court without having recourse to arbitration. In our opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the arbitrator for appropriate relief. Condition 15 is also relevant. It reads thus:- "If the Buyer shall fail to pay for the tea or any part thereof on the due date for payment, the goods may be resold. either by auction or private sale, at the option of the seller. Any loss arising on such resale, together with interest at 6 per cent per annum from the due date and all charges incurred, shall be paid by the buyer to the seller, and the buyer shall not be entitled to any profit, which may accrue from such -resale". This condition is consistent with the provisions of s. 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and thehave carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under s. 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot. in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales-tax authorities were justified in imposing sales-tax against the appellants in regard to the transactions which have given rise to the presentthe decision of the Kerala High Court in the case of A. V. Thomas & Co.( I.L.R. 11960] Kerala. 1395) was reversed by this Court when the matter came before it in appeal in A. V. Thomas & Co. Ltd. v . Deputy Commissioner of Agricultural Income Tax and Sales Tax, Trivendrum. ([1963] Supp. 2 S.C.R. 608.) In that case, this Court has held that the explanation to Art. 286 (1) creates a fiction as between two States, one where the goods are delivered for consumption in that State , and the other where the title in the goods passed and the former is treated as the situs of the taxable event to the exclusion of the latter. In regard to sales of teas in lots by public auction, this Court held that the property in teas passed to the buyer under S. 54 of the Act as soon as the offer was accepted on fall of the hammer at Fort Cochin in the State of Madras and, therefore, the only State which could have power to levy a tax on such sale would be the State of Madras and so far as thewas concerned, the sale would be an outside sale. The same view has been expressed by this Court in a subsequent decision coming from Kerala in Malayalam Plantations Ltd., Quilon v. The Deputy Commissioner of Agriculturalx, South Zone, Quilon. ( A.I.R. 1965. S.C. 161.) The result is that the decision of the Kerala High Court in the case of A. V. Thomas & Co.() on which the salestax authorities and the High Court of Kerala have decided the dispute between the appellants and the respondent State in the present proceedings is no longer good law, and that would inevitably mean that the appellants must succeed on the ground that the sales of tea having taken place in the same manner as the sales of tea which had come before this Court in the two decisions to which we have just referred, they are "outside sales" so far as the respondent State is concerned and cannot be legitimately assessed to tax under the relevant provisions of the Sales Taxis common ground that if the sales are. held to be inside sales so far as the respondent State is concerned, the view taken by the High Court would have to be confirmed and the appellants would have to pay theas ordered by thet appears that in the two decisions of this Court to which we have just referred, this point has not beenhave accordingly heard Mr. Menon on this point and we propose to decide it on the merits.When those appeals were heard by us first on the 10th September, 1964, the procedure followed in conducting the sales in question was placed before us in the form of a summary which we have quoted at the beginning of this judgment.We, however, thought that since we were deciding the question as to where the title in the goods passed, it would be more satisfactory to have before us all the Rules of the Tea Trade Association of Cochin which prescribed the procedure for these sales. Accordingly, the matter was adjourned to enable the parties to produce the saidsaid Rules have since then been produced before us and we have heard both Mr. Setalvad and Mr. Menon fully on the points raised by Mr. Menon that the sales in question are inside sales so far as the respondent State isposition in regard to the relevant provisions of the Act bearing on the question as to when title in the goods sold passes, is not in doubt. If the contract of sale is for ascertained goods which are actually described in the list prepared before the sales are held and it appears that all material particulars about the goods are shown in the list, then the question as to when title passes would depend essentially upon the intention of the parties expressed in the terms of thething is clear in the present case viz., that the goods in question were not unascertained goods, nor were they not in existence; goods were clearly in existence, they had been graded, weighed and packed in numbered chests and a list was prepared in respect of the contents of these chests separately. It is true that what the buyers are shown at the time of sale by public auction are samples and the rules authorise the buyers to inspect the goods; but that is not to say that the sale is a sale of unascertained or nonexisting goods.Let us, therefore, consider the relevant and material terms and conditions of the rules under which the sales take place, for it is these terms which will decide as to when title passes to theNo. 7 of the Rules provides that subject to the reserved or upset price, the highest bidder shall be the buyer, and it lays, down that until the fall of the hammer or until the registration of the sale as provided in clause 5, any bidder may retract his bid. Under condition No. 8, the auctioneer has to declare the name of the highest bidder before the lot is knocked down. Under condition 11, the buyer is entitled to open the chests purchased by him and examine the contents thereof to ascertain the actual state and condition of the tea. Such examination has to take place before the expiration of the time allowed for submission of claims as provided in condition 12 or in the event of earlier removal of the tea, before the date of actual removal. This condition refers to the chests purchased by the buyer and contemplates that as a result of the examination of the goods, the buyer can make claims within the time specified by condition 12. Condition 12 is material. and so, it is necessary to read it. It reads thus:"All claims on the ground of difference or inferiority in quality, description, deterioration, damage, defect in packing or any other ground whatsoever must be submitted to the selling broker in writing not later than 5 p.m. on the third day before Prompt Day. Prompt Day shall be the tenth day after date of sale. In the case of teas removed before Prompt Day, such claims must be submitted at least 24 hours before removal of tea. In the absence of any claim submitted in strict accordance with this condition, the tea shall be deemed to have complied with the contract in all respects and to have been accepted by the buyer, who shall not be entitled to reject the tea or to claim any allowance or damages in respectdo not think that much importance can be attached to the expression "to have been accepted by the buyer" on which Mr. Menon rests his argument. We have already seen that condition has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such purchased or accepted, but to take into account the substance of these conditions. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the Prompt Day, or 24 hours before removal of goods, whichever event happens earlier. The Prompt Day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.m. on the fifth day after the Prompt Day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5P.M. on the fifth day after the Prompt Day or until removal by the buyer if removed earlier (condition No. 23). Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed on inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot male a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof. Condition 13 is alsowould be noticed that the first part of condition 13 corresponds to s. 64(1) of the Act. It, however, adds that though each chest shall be treated as theof a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good. tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction. | 1 | 5,348 | 2,225 | ### 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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that condition has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such purchased or accepted, but to take into account the substance of these conditions. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the Prompt Day, or 24 hours before removal of goods, whichever event happens earlier. The Prompt Day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.m. on the fifth day after the Prompt Day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5P.M. on the fifth day after the Prompt Day or until removal by the buyer if removed earlier (condition No. 23). Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed on inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot male a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof. Condition 13 is also important. It reads thus "Each chest comprised in a lot shall be treated as the subject of a separate contract of sale; but this condition shall not entitle the buyer to require the seller to give part delivery of less than the full number of chests sold; and in the event of the buyer claiming to reject the lot purchased by him, the Arbitrators or Umpire, if satisfied that the lot was not a good tender, shall be entitled to award rejection of the entire lot, and not only the particular chests found on examination to be defective". It would be noticed that the first part of condition 13 corresponds to s. 64(1) of the Act. It, however, adds that though each chest shall be treated as the subject-matter of a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good. tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction.7. Condition 13 makes it clear that in case the buyer finds a substantial defect in the quality of the goods -sold to him, he cannot reject the contract of his own; all he can do is to make a claim in that behalf before the Arbitrator; and this condition is consistent only with the view that the goods have already been purchased by the buyer and the claim which he is allowed to make is as a result of the breach of the contract of sale.Mr. Menon attempted to argue that condition 13 merely en- able the buyer to move the Arbitrator. According to him, the buyer can reject the contract of his own, or file a claim for damages in a civil court without having recourse to arbitration. In our opinion, condition 13 is not merely an enabling condition; it is an obligatory condition and it gives the buyer only one remedy, and that is to move the arbitrator for appropriate relief. Condition 15 is also relevant. It reads thus:- "If the Buyer shall fail to pay for the tea or any part thereof on the due date for payment, the goods may be resold. either by auction or private sale, at the option of the seller. Any loss arising on such resale, together with interest at 6 per cent per annum from the due date and all charges incurred, shall be paid by the buyer to the seller, and the buyer shall not be entitled to any profit, which may accrue from such -resale". This condition is consistent with the provisions of s. 64(2) of the Act, and it cannot be said to support Mr. Menons contention that the title in the goods does not pass to the buyer until he has inspected them and indicated his acceptance.8. Condition 16 is a general condition as to arbitration and it provides that any disputes or differences which may arise between the parties shall be referred to arbitration as therein indicated. Reading conditions 13 and 16 together, there can be no doubt that all claims which the buyer is entitled to make must be made to the arbitrators and it is the decision of the arbitrators that will determine the dispute between the buyer and the seller.9. We have carefully considered all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under s. 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot. in our opinion, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales-tax authorities were justified in imposing sales-tax against the appellants in regard to the transactions which have given rise to the present appeals.Th
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of the Tea Trade Association of Cochin which prescribed the procedure for these sales. Accordingly, the matter was adjourned to enable the parties to produce the saidsaid Rules have since then been produced before us and we have heard both Mr. Setalvad and Mr. Menon fully on the points raised by Mr. Menon that the sales in question are inside sales so far as the respondent State isposition in regard to the relevant provisions of the Act bearing on the question as to when title in the goods sold passes, is not in doubt. If the contract of sale is for ascertained goods which are actually described in the list prepared before the sales are held and it appears that all material particulars about the goods are shown in the list, then the question as to when title passes would depend essentially upon the intention of the parties expressed in the terms of thething is clear in the present case viz., that the goods in question were not unascertained goods, nor were they not in existence; goods were clearly in existence, they had been graded, weighed and packed in numbered chests and a list was prepared in respect of the contents of these chests separately. It is true that what the buyers are shown at the time of sale by public auction are samples and the rules authorise the buyers to inspect the goods; but that is not to say that the sale is a sale of unascertained or nonexisting goods.Let us, therefore, consider the relevant and material terms and conditions of the rules under which the sales take place, for it is these terms which will decide as to when title passes to theNo. 7 of the Rules provides that subject to the reserved or upset price, the highest bidder shall be the buyer, and it lays, down that until the fall of the hammer or until the registration of the sale as provided in clause 5, any bidder may retract his bid. Under condition No. 8, the auctioneer has to declare the name of the highest bidder before the lot is knocked down. Under condition 11, the buyer is entitled to open the chests purchased by him and examine the contents thereof to ascertain the actual state and condition of the tea. Such examination has to take place before the expiration of the time allowed for submission of claims as provided in condition 12 or in the event of earlier removal of the tea, before the date of actual removal. This condition refers to the chests purchased by the buyer and contemplates that as a result of the examination of the goods, the buyer can make claims within the time specified by condition 12. Condition 12 is material. and so, it is necessary to read it. It reads thus:"All claims on the ground of difference or inferiority in quality, description, deterioration, damage, defect in packing or any other ground whatsoever must be submitted to the selling broker in writing not later than 5 p.m. on the third day before Prompt Day. Prompt Day shall be the tenth day after date of sale. In the case of teas removed before Prompt Day, such claims must be submitted at least 24 hours before removal of tea. In the absence of any claim submitted in strict accordance with this condition, the tea shall be deemed to have complied with the contract in all respects and to have been accepted by the buyer, who shall not be entitled to reject the tea or to claim any allowance or damages in respectdo not think that much importance can be attached to the expression "to have been accepted by the buyer" on which Mr. Menon rests his argument. We have already seen that condition has referred to the chests as having been purchased by the buyer; and that would be clearly against Mr. Menons case. So, it would be reasonable not to base our decision principally on the words used by the conditions, such purchased or accepted, but to take into account the substance of these conditions. It may be stated at this stage that after the public auction takes place, claims have to be made by the buyer not later than the third day before the Prompt Day, or 24 hours before removal of goods, whichever event happens earlier. The Prompt Day is the 10th day on or before which payment has to be made by the buyer, and possession has to be taken by him before 5 P.m. on the fifth day after the Prompt Day (condition No. 22). The goods continue to be at the sellers risk to the extent of the sale price only until 5P.M. on the fifth day after the Prompt Day or until removal by the buyer if removed earlier (condition No. 23). Condition 12 clearly shows that the buyer has a right to make claims either on the ground of difference or inferiority in quality disclosed on inspection, or as a result of a defect in packing or any other ground whatsoever. After the time specified by this condition has expired, the buyer cannot male a claim to reject the goods, nor can he ask for any allowance or damages in respect thereof. Condition 13 is alsowould be noticed that the first part of condition 13 corresponds to s. 64(1) of the Act. It, however, adds that though each chest shall be treated as theof a separate contract of sale, the buyer cannot claim delivery of less than the full number of chests sold. If the buyer makes a claim for rejecting the contract, the Arbitrators or Umpire may, if satisfied that the lot was not a good. tender, hold that the buyer is entitled to reject either the entire lot or in a proper case even particular specified chests constituting the lot. Like the word "accepted" in condition 12, the word "tender" in condition 13 cannot, however, materially affect the nature of the transaction.
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T.V.L. Nilsin Industries Vs. State of Tamil Nadu | the Calcutta High Court in M/s. Nilsin Company vs. Collector o f Central Excise, 1984 ECR 928. The issue before the Calcutta High Court was whether ultramarine blue was a pigment for the purposes of assessment under item 14 (1) (5) The learned Judge said: "(13). The respondents in paragraph 17 of the affidavit-in-opposition have averred that in paints like emulsion paints or water paints, pigment finishes for leather, printing ink, textile printing, Ultramarine Blue is compounded in larger proportion. The y have also set out in paragraph 18 of their expression pigment given in various Coating by Paul Nylen and Edward Sunderland, `pigment as the `internationally accepted term for the powdered material intended to be production of paints, printing inks, plastic materials, rubbers, vitrine enamels. In the said book Ultramarine Blue has been classified as a synthetic and inorganic pigment. The respondents have also relied upon Websters 3rd International Dictionary, 1968, page 1714 which describes `pigment, inter alia as a natural or synthetic inorganic or organic substance that imparts a colour including black or white to other materials especially, a powder or easily powdered substance mixed soluble and used in making paints, enamels and other coating materials, inks, plastic, rubber and also for imparting opacity and other desirable properties as well as colour.(14) After the hearing was concluded, the learned Advocate for the petitioner placed before me the Condensed Chemical Dictionary. 10th Edn. revised by Gessner G. Hawley, published by Van Nostrant Reinhold Co. Incidentally, the respondents in paragraph 17 of their affidavit- in-opposition had relied upon he 1953 edition of Van Nostrands Chemical Dictionary f or the definition of `pigment as a colouring substance. The said Condensed Chemical Dictionary Claims to contain three distinct types of information, namely, (i) technical descriptions (ii) extended definition, and (iii) descriptions or identifications of wide range of trade mark products. The said Dictionary, in my view, does not support he claim laid by the petitioner. Thus at page 1068 of the said Dictionary the properties of Ultramarine Blue have been, inter alia, described as "Inorganic pigment ; blue powder ; good alkali and heat resistance..." 11. The said Dictionary mentions the following uses of Ultramarine Blue : "Colorant for machinery and toy enamels ; white baking enamels, printing inks, rubber products, soaps and laundry blues, cosmetics, textile printing." "Note: Used in very low percentage to intensify whiteness of white enamels rubber compounds, laundered clothing etc. by offsetting yellowish undertones ; gives a `blue rather than a `yellow white". According to the same Dictionary, the expression "Colorant" means any substance that imparts colour to another material or mixture". Colourants are either dyes or pigments" (vide page 267 of the book). I may also refer to the definition of `pigment given at page 817 of the said Condensed Chemical Dictionary:- "Any substance, usually in the form of a dry powder, that imparts colour in another substance or mixture, Most pigments are insoluble in inorganic solvents and water... To qualify as a pigment, a material must have positive colorant value." * 12. The definition given in the said book excludes certain substances including whiting. Mr. Bhattacharyya is not correct in contending that Ultramarine Blue is whiting because, according to the said dictionary, whiting is entirely a distinct product consisting of finely ground, naturally occurring calcium carbonate derived form chalk, limestone, etc. and used as filter, putty, etc. One of the properties of Ultramarine Blue is that it is a whitener, i.e. a white pigment or colorant used in the paper and textile industries (vide Condensed Chemical Dictionary, page 1096). 13. Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is a pigment. 14. Ultramarine Blue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as a colorant. 15. It is used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule to the Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment. 16. | 0[ds]Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is aBlue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as ais used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule tothe Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment. | 0 | 2,779 | 452 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the Calcutta High Court in M/s. Nilsin Company vs. Collector o f Central Excise, 1984 ECR 928. The issue before the Calcutta High Court was whether ultramarine blue was a pigment for the purposes of assessment under item 14 (1) (5) The learned Judge said: "(13). The respondents in paragraph 17 of the affidavit-in-opposition have averred that in paints like emulsion paints or water paints, pigment finishes for leather, printing ink, textile printing, Ultramarine Blue is compounded in larger proportion. The y have also set out in paragraph 18 of their expression pigment given in various Coating by Paul Nylen and Edward Sunderland, `pigment as the `internationally accepted term for the powdered material intended to be production of paints, printing inks, plastic materials, rubbers, vitrine enamels. In the said book Ultramarine Blue has been classified as a synthetic and inorganic pigment. The respondents have also relied upon Websters 3rd International Dictionary, 1968, page 1714 which describes `pigment, inter alia as a natural or synthetic inorganic or organic substance that imparts a colour including black or white to other materials especially, a powder or easily powdered substance mixed soluble and used in making paints, enamels and other coating materials, inks, plastic, rubber and also for imparting opacity and other desirable properties as well as colour.(14) After the hearing was concluded, the learned Advocate for the petitioner placed before me the Condensed Chemical Dictionary. 10th Edn. revised by Gessner G. Hawley, published by Van Nostrant Reinhold Co. Incidentally, the respondents in paragraph 17 of their affidavit- in-opposition had relied upon he 1953 edition of Van Nostrands Chemical Dictionary f or the definition of `pigment as a colouring substance. The said Condensed Chemical Dictionary Claims to contain three distinct types of information, namely, (i) technical descriptions (ii) extended definition, and (iii) descriptions or identifications of wide range of trade mark products. The said Dictionary, in my view, does not support he claim laid by the petitioner. Thus at page 1068 of the said Dictionary the properties of Ultramarine Blue have been, inter alia, described as "Inorganic pigment ; blue powder ; good alkali and heat resistance..." 11. The said Dictionary mentions the following uses of Ultramarine Blue : "Colorant for machinery and toy enamels ; white baking enamels, printing inks, rubber products, soaps and laundry blues, cosmetics, textile printing." "Note: Used in very low percentage to intensify whiteness of white enamels rubber compounds, laundered clothing etc. by offsetting yellowish undertones ; gives a `blue rather than a `yellow white". According to the same Dictionary, the expression "Colorant" means any substance that imparts colour to another material or mixture". Colourants are either dyes or pigments" (vide page 267 of the book). I may also refer to the definition of `pigment given at page 817 of the said Condensed Chemical Dictionary:- "Any substance, usually in the form of a dry powder, that imparts colour in another substance or mixture, Most pigments are insoluble in inorganic solvents and water... To qualify as a pigment, a material must have positive colorant value." * 12. The definition given in the said book excludes certain substances including whiting. Mr. Bhattacharyya is not correct in contending that Ultramarine Blue is whiting because, according to the said dictionary, whiting is entirely a distinct product consisting of finely ground, naturally occurring calcium carbonate derived form chalk, limestone, etc. and used as filter, putty, etc. One of the properties of Ultramarine Blue is that it is a whitener, i.e. a white pigment or colorant used in the paper and textile industries (vide Condensed Chemical Dictionary, page 1096). 13. Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is a pigment. 14. Ultramarine Blue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as a colorant. 15. It is used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule to the Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment. 16.
### Response:
0
### Explanation:
Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is aBlue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as ais used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule tothe Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment.
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M/S MANGILAL VISHNOI Vs. NATIONAL INSURANCE COMPANY LIMITED & ORS | HEMANT GUPTA, J. 1. Leave granted. 2. The employer is in appeal against an order passed by the High Court of Judicature for Rajasthan at Jodhpur on 25.9.2019 whereby the appeal of the Insurance Company under Section 30 of the Employees Compensation Act, 1923 (For short, the Act) was allowed. 3. Tej Singh, deceased was engaged by the appellant as a Helper who died in the course of employment of the appellant on his borewell vehicle No. RJ-06-J2725 on 11.10.2002 due to collapse of soil surrounding the well. The petition was filed before the Employees Commissioner (For short, the Commissioner) under the Act for grant of compensation. The learned Commissioner passed an award dated 2.12.2005 awarding a sum of Rs.3,27,555/- along with Rs.2,500/- as expenses for the last rites. The legal heirs of deceased were also granted interest @18% p.a. from the date of accident. 4. The insurance company filed an appeal under Section 30 of the Act before the High Court. The High Court accepted the appeal holding that the deceased was a Helper though the policy covered Cleaner or Driver of the Vehicle in question. The High Court reduced the interest to 12% p.a. Since the insurance company has paid the amount, liberty was granted to it to recover the sum from the present appellant. 5. Learned counsel for the appellant submits that there is not much difference between the duties of a Cleaner and a Helper. It is a nomenclature which is used interchangeably by all the employers. Still further, reliance is placed upon insurance policy which indemnifies the owner in respect of two drivers, one cleaner and other employees for which extra premium has been paid by the owner. The premium paid by the owner was Rs.45/- i.e. Rs.15 each for two drivers and a Cleaner and Rs.75/- for other employees. 6. Learned counsel also refers to India Motor Tariff 17 (IMT 17) issued under the provisions of the Insurance Act, 1938. As per such endorsement, the insurance company has agreed to indemnify any claim of personal injury to any paid driver or cleaner or persons employed in loading or unloading but in any case, not exceeding seven in number including driver and cleaner while engaged in service of the insured. The relevant clause reads as under: IMT- 17 legal liability to person employed in connection with the operation and or maintain and / or unloading of goods carrying commercial vehicle in consideration of payment of an additional premium it is hereby under stood and agreed that notwithstanding anything contained herein to the contrary the company shall indemnify the insured against his legal liability under the workmens compensation act, 1923 and subsequent amendment of that act prior to the date of this endorsement the fatal accident act 1855 or at common law in respect of personal injury to any paid driver or cleaner of persons employed in loading/ or unloading but it any case not exceeding seven in number including driver and cleaner whilst engaged in the service of the insured in such occupation in connection with the goods carrying commercia! vehicle and will in addition be responsible for ail cost and expenses incurred with its written consent. 7. On the other hand, learned counsel for the Insurance Company contended that the deceased was working as a Helper and not asa Cleaner. He was not engaged in the loading or unloading either. Therefore, the deceased was not covered by the Endorsement IMT 17. However, he could not point out any distinction between the duties of Cleaner or Helper. It was contended that it was for the employer to prove the nature of work assigned to the deceased. 8. We have heard learned counsel for the parties and find that the High Court has accepted appeal on a make-believe argument that Cleaner or Helper engaged by the employer are engaged in two different duties and that a Helper is not covered by the insurance policy. The High Court has recorded a finding that admittedly deceased was a Helper. In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. Additionally, the employer sought indemnification of five other employees engaged in loading or unloading activities by paying extra premium. It was for the insurance company to cross examine the witnesses produced by the claimant or by the owner to prove the fact that deceased was not engaged in loading or unloading activities. We find that the High Court has drawn a distinction between Helper and a Cleaner when none existed. | 1[ds]8. We have heard learned counsel for the parties and find that the High Court has accepted appeal on a make-believe argument that Cleaner or Helper engaged by the employer are engaged in two different duties and that a Helper is not covered by the insurance policy. The High Court has recorded a finding that admittedly deceased was a Helper. In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. Additionally, the employer sought indemnification of five other employees engaged in loading or unloading activities by paying extra premium. It was for the insurance company to cross examine the witnesses produced by the claimant or by the owner to prove the fact that deceased was not engaged in loading or unloading activities. We find that the High Court has drawn a distinction between Helper and a Cleaner when none existed. | 1 | 857 | 191 | ### 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:
HEMANT GUPTA, J. 1. Leave granted. 2. The employer is in appeal against an order passed by the High Court of Judicature for Rajasthan at Jodhpur on 25.9.2019 whereby the appeal of the Insurance Company under Section 30 of the Employees Compensation Act, 1923 (For short, the Act) was allowed. 3. Tej Singh, deceased was engaged by the appellant as a Helper who died in the course of employment of the appellant on his borewell vehicle No. RJ-06-J2725 on 11.10.2002 due to collapse of soil surrounding the well. The petition was filed before the Employees Commissioner (For short, the Commissioner) under the Act for grant of compensation. The learned Commissioner passed an award dated 2.12.2005 awarding a sum of Rs.3,27,555/- along with Rs.2,500/- as expenses for the last rites. The legal heirs of deceased were also granted interest @18% p.a. from the date of accident. 4. The insurance company filed an appeal under Section 30 of the Act before the High Court. The High Court accepted the appeal holding that the deceased was a Helper though the policy covered Cleaner or Driver of the Vehicle in question. The High Court reduced the interest to 12% p.a. Since the insurance company has paid the amount, liberty was granted to it to recover the sum from the present appellant. 5. Learned counsel for the appellant submits that there is not much difference between the duties of a Cleaner and a Helper. It is a nomenclature which is used interchangeably by all the employers. Still further, reliance is placed upon insurance policy which indemnifies the owner in respect of two drivers, one cleaner and other employees for which extra premium has been paid by the owner. The premium paid by the owner was Rs.45/- i.e. Rs.15 each for two drivers and a Cleaner and Rs.75/- for other employees. 6. Learned counsel also refers to India Motor Tariff 17 (IMT 17) issued under the provisions of the Insurance Act, 1938. As per such endorsement, the insurance company has agreed to indemnify any claim of personal injury to any paid driver or cleaner or persons employed in loading or unloading but in any case, not exceeding seven in number including driver and cleaner while engaged in service of the insured. The relevant clause reads as under: IMT- 17 legal liability to person employed in connection with the operation and or maintain and / or unloading of goods carrying commercial vehicle in consideration of payment of an additional premium it is hereby under stood and agreed that notwithstanding anything contained herein to the contrary the company shall indemnify the insured against his legal liability under the workmens compensation act, 1923 and subsequent amendment of that act prior to the date of this endorsement the fatal accident act 1855 or at common law in respect of personal injury to any paid driver or cleaner of persons employed in loading/ or unloading but it any case not exceeding seven in number including driver and cleaner whilst engaged in the service of the insured in such occupation in connection with the goods carrying commercia! vehicle and will in addition be responsible for ail cost and expenses incurred with its written consent. 7. On the other hand, learned counsel for the Insurance Company contended that the deceased was working as a Helper and not asa Cleaner. He was not engaged in the loading or unloading either. Therefore, the deceased was not covered by the Endorsement IMT 17. However, he could not point out any distinction between the duties of Cleaner or Helper. It was contended that it was for the employer to prove the nature of work assigned to the deceased. 8. We have heard learned counsel for the parties and find that the High Court has accepted appeal on a make-believe argument that Cleaner or Helper engaged by the employer are engaged in two different duties and that a Helper is not covered by the insurance policy. The High Court has recorded a finding that admittedly deceased was a Helper. In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. Additionally, the employer sought indemnification of five other employees engaged in loading or unloading activities by paying extra premium. It was for the insurance company to cross examine the witnesses produced by the claimant or by the owner to prove the fact that deceased was not engaged in loading or unloading activities. We find that the High Court has drawn a distinction between Helper and a Cleaner when none existed.
### Response:
1
### Explanation:
8. We have heard learned counsel for the parties and find that the High Court has accepted appeal on a make-believe argument that Cleaner or Helper engaged by the employer are engaged in two different duties and that a Helper is not covered by the insurance policy. The High Court has recorded a finding that admittedly deceased was a Helper. In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. Additionally, the employer sought indemnification of five other employees engaged in loading or unloading activities by paying extra premium. It was for the insurance company to cross examine the witnesses produced by the claimant or by the owner to prove the fact that deceased was not engaged in loading or unloading activities. We find that the High Court has drawn a distinction between Helper and a Cleaner when none existed.
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Uttam Chand Vs. State of Maharashtra and Another | his return filed before the Deputy Collector, the appellant had shown the total lands to be 370 acres and 34 gunthas. It was however alleged by the appellant that some time in the year 1956, there was a partition between the appellant and his nephews as a result of which his family got 202 acres of land. The appellant had sold 51 acres of land to other persons before the Act came into force. The appellant further alleged that he gave some lands to his adopted son in lieu of the latters share. The adopted son Nemichand thereafter gave 93.25 acres of land to his mother under a civil Court decree. All these transactions took place some time in the year 1956. The Collector after examining the return found that the total land owned by the appellant was 118 acres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act. Against the order of the Deputy Collector, the Commissioner appears to have called for the records and interfered suo moto and after making some enquiry, he held that the land declared by the appellant in his return far-exceeded the ceiling limit. In computing the total lands owned by the appellant, the Commissioner appears to have taken into account even that land which had been given by Nemichand to his mother, the wife of the appellant. Against this order of Commissioner, the appellant filed a writ petition before the High Court which was dismissed as a result of which an application was filed for grant of certificate for appeal to this Court which was granted. Hence this Appeal.The short point taken by Mr. V. M. Tarkunde, learned counsel for the appellant is that under the provisions of the Act, land which was received by his wife from the adopted son was her personal property and could not be included in the ceiling of the appellant and that the Commissioner therefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set said the order of the Deputy Collector. The High Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted so n, was held to be collusive as also the decree. There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer of Nemichand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is to say, five years before the Act came into force. Even the Act clearly exempts lands which may have been acquired or transferred prior to 4-8-1959. Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4-8-1959. As both the transfers mentioned above were prior to 4-8-1959, it is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.Mr. Bhandare, learned Counsel appearing for the respondent submitted that the word person defined in Sec. 2(22) of the Act includes family and that family as defined in Sec. 2(11) of the Act includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage are joint in estate or possession or residence. Reliance was also placed on Section 6 of the Act which runs thus:"Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area."3. These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with land of owner or his family. To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged to such a person or persons having different shares in that property. That is why all transfers made prior to 1 959 were expressly exempted from the operation of the Act. The arguments advanced by the respondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the more important fact to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4-8-1959. If the transfer was prior to 4- 8-1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his m other should be included in the total area of the land owned by the appellant. | 1[ds]These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with land of owner or his family. To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged to such a person or persons having different shares in that property. That is why all transfers made prior to 1 959 were expressly exempted from the operation of the Act. The arguments advanced by the respondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the more important fact to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4-8-1959. If the transfer was prior to 4- 8-1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his m other should be included in the total area of the land owned by theHigh Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted so n, was held to be collusive as also the decree. There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer of Nemichand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is to say, five years before the Act came into force. Even the Act clearly exempts lands which may have been acquired or transferred prior toSs. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or afterAs both the transfers mentioned above were prior toit is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court. | 1 | 1,190 | 512 | ### 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:
his return filed before the Deputy Collector, the appellant had shown the total lands to be 370 acres and 34 gunthas. It was however alleged by the appellant that some time in the year 1956, there was a partition between the appellant and his nephews as a result of which his family got 202 acres of land. The appellant had sold 51 acres of land to other persons before the Act came into force. The appellant further alleged that he gave some lands to his adopted son in lieu of the latters share. The adopted son Nemichand thereafter gave 93.25 acres of land to his mother under a civil Court decree. All these transactions took place some time in the year 1956. The Collector after examining the return found that the total land owned by the appellant was 118 acres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act. Against the order of the Deputy Collector, the Commissioner appears to have called for the records and interfered suo moto and after making some enquiry, he held that the land declared by the appellant in his return far-exceeded the ceiling limit. In computing the total lands owned by the appellant, the Commissioner appears to have taken into account even that land which had been given by Nemichand to his mother, the wife of the appellant. Against this order of Commissioner, the appellant filed a writ petition before the High Court which was dismissed as a result of which an application was filed for grant of certificate for appeal to this Court which was granted. Hence this Appeal.The short point taken by Mr. V. M. Tarkunde, learned counsel for the appellant is that under the provisions of the Act, land which was received by his wife from the adopted son was her personal property and could not be included in the ceiling of the appellant and that the Commissioner therefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set said the order of the Deputy Collector. The High Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted so n, was held to be collusive as also the decree. There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer of Nemichand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is to say, five years before the Act came into force. Even the Act clearly exempts lands which may have been acquired or transferred prior to 4-8-1959. Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4-8-1959. As both the transfers mentioned above were prior to 4-8-1959, it is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.Mr. Bhandare, learned Counsel appearing for the respondent submitted that the word person defined in Sec. 2(22) of the Act includes family and that family as defined in Sec. 2(11) of the Act includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage are joint in estate or possession or residence. Reliance was also placed on Section 6 of the Act which runs thus:"Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area."3. These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with land of owner or his family. To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged to such a person or persons having different shares in that property. That is why all transfers made prior to 1 959 were expressly exempted from the operation of the Act. The arguments advanced by the respondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the more important fact to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4-8-1959. If the transfer was prior to 4- 8-1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his m other should be included in the total area of the land owned by the appellant.
### Response:
1
### Explanation:
These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with land of owner or his family. To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged to such a person or persons having different shares in that property. That is why all transfers made prior to 1 959 were expressly exempted from the operation of the Act. The arguments advanced by the respondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the more important fact to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4-8-1959. If the transfer was prior to 4- 8-1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his m other should be included in the total area of the land owned by theHigh Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted so n, was held to be collusive as also the decree. There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer of Nemichand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is to say, five years before the Act came into force. Even the Act clearly exempts lands which may have been acquired or transferred prior toSs. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or afterAs both the transfers mentioned above were prior toit is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.
|
Sukhram Singh And Another Vs. Smt. Harbheji | suit. Section 229-B provides that any person claiming to be an Asami of the whole or a part of it may sue the landlord for a declaration of his rights as Asami. Sub-section (3) of the same Section provided that the provisions are to apply mutatis mutandis to a suit by a person claiming to be sirdar (Adhivasi). Section 234-A then provides that the provisions of Section 229-B mentioned above shall apply to an Adhivasi as if he were an Asami. Schedule II to the Land Reforms Act in Item 34 appoints the Assistant Collector, Ist Class, as competent Court for the trial of suits for declaration of rights under Section 229-B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal.11. In the present case the Compensation Officer who passed the order on October 25, 1956 was also Assistant Collector, Ist Class, but he did not refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer.12. We will now come to the question whether Section 157 also operates retrospectively with Section 21. The latter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result is reached.13.Now a law is undoubtedly retrospective if the law says so expressly but it is not always necessary to say so expressly to make the law retrospective. There are occasions when a law be held to be retrospective in operation. Retrospection is not to be presumed for the presumption is the other-way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of course, only open if it is necessary. In the words of Lord Selborne in Main v. Stark, (1890) 15 AC 384 at p. 388 there might be something in the context of an Act or be collected from its language, which might give to words prima facie prospective a larger operation.More retrospectively is not to be given than what can be gathered from expressed or clearly implied intention of the legislature.14. Applying these tests to the statute we have in hand, we are clear that Section 157 (1) (a) must be read to apply retrospectively. It is clear that Section 21 (h) mentioned only one of the clauses viz., clause (e) as furnishing a ground for declaration. After the amendment of cl. (h) one or more of the clauses of Section 157 (1) are to be taken into account. Now there would be no point in making the amendment of Section 21 (h) retrospective if the other clauses were to apply prospectively for then the force of the retrospectivity of clause (h) of Section 21 is made neutral. Therefore, if the new Section 21 (h) is to be read retrospectively from the commencement of Land Reforms Act, the amendment of Section 157 (1) which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any given moment of time from the commencement of the Land Reforms Act all the clauses or one or more of them and not clause (e) alone were to be taken note of.The amendment of clause (h) speaks of one or more clauses and when we read the clauses of Section 157 (1) we find them altered also. Therefore the new clauses must be read and not the old clauses. The High Court was thus right in its conclusion that the clauses of Section 157 (1) as amended also operate retrospectively. This disposes of the first point.15. The next point is about the finality of the order of October 25, 1956 passed by the Compensation Officer. We cannot refer that order to his capacity as the Assistant Collector. An act would, no doubt be referable to a capacity which would give it validity. But the law required the compensation officer to frame an issue and refer it to the competent Court. He could not decide the matter without doing so. One of the parties was before it and he ought to have asked that party to prove its case. He did nothing.It is, therefore, not wrong for the Settlement Officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under Section 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did not have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus no finality. | 0[ds]7. The difference between the two Sections material for our purposes lies in the mention of all clauses of Section157, sub-section (1) after the amendment whereas before the amendment only cl. (e) of sub-section (1) of Section157 was mentioned. Section157 also was amended. Again for the purposes of this case it is not necessary to reproduce the whole of the Section. The difference here is that a lease by a woman although married was possible if her husband was suffering from insanity or idiocy or was a person incapable of cultivating by reason of blindness or other physical infirmity. Smt. Harbheji in her applications wished to take advantage of the amendments of Sections 21 and 157 on the ground that her husband was suffering from sinus and hence from physical infirmity and was incapable of cultivating the land. The difficulty arises because the Legislature while making the amendment made the amendment in cl. (h) of Section 21 retrospective from the date of the passing of the Abolition Act but in Section 157 it did not expressly state that the amendments were retrospective. The sham question that arises is whether Section157 when read with Section 27 (21?) also becomes retrospective notwithstanding that there are no express words of retrospectivity.10. The second point is concerned with the addition of Chapter IX-A which is headed Conferment of Sirdari Rights on Adhivasis. The grounds on which the ejectment of an Adhivasi could be made were contained in Section 234 of the Land Reforms Act but none of the grounds applies here. Thus if Sukhram Singh and Laiq Singh were Adhivasis they could not be ejected by Smt. Harbheji but if they were only asamis then the ejectment could take place because they were only tenants from year to year. Chapter IX-A added Sections 240-A to 240-N. It provides that the Government may by a notification declare that the rights, title and interest of the land-holders in the land held by Adhivasis shall cease and vest in the State and also provides for payment of compensation to the landlord whose rights, title or interest in the land are acquired. The compensation statement is required to be published under Section 240-F and Section 240-G gives a right to any person interested to file objections. Section 240-H deals with the procedure for disposal of the objections under Section 240-G. It provides that the Compensation Officer shall frame an issue regarding it and refer it for disposal to the Court which has jurisdiction to decide a suit under Section 229-B read with Section 234-A and that thereupon all the provisions relating to the hearing and disposal of such suit shall apply to his reference as if it were a suit. Section 229-B provides that any person claiming to be an Asami of the whole or a part of it may sue the landlord for a declaration of his rights as Asami. Sub-section (3) of the same Section provided that the provisions are to apply mutatis mutandis to a suit by a person claiming to be sirdar (Adhivasi). Section 234-A then provides that the provisions of Section 229-B mentioned above shall apply to an Adhivasi as if he were an Asami. Schedule II to the Land Reforms Act in Item 34 appoints the Assistant Collector, Ist Class, as competent Court for the trial of suits for declaration of rights under Section 229-B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal.11. In the present case the Compensation Officer who passed the order on October 25, 1956 was also Assistant Collector, Ist Class, but he did not refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer.12.We will now come to the question whether Section 157 also operates retrospectively with Section 21.The latter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result is reached.13.Now a law is undoubtedly retrospective if the law says so expressly but it is not always necessary to say so expressly to make the law retrospective. There are occasions when a law be held to be retrospective in operation. Retrospection is not to be presumed for the presumption is the other-way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of course, only open if it is necessary. In the words of Lord Selborne inMain v. Stark, (1890) 15 AC 384 at p. 388there might be something in the context of an Act or be collected from its language, which might give to words prima facie prospective a larger operation.More retrospectively is not to be given than what can be gathered from expressed or clearly implied intention of thethese tests to the statute we have in hand, we are clear that Section 157 (1) (a) must be read to apply retrospectively. It is clear that Section 21 (h) mentioned only one of the clauses viz., clause (e) as furnishing a ground for declaration. After the amendment of cl. (h) one or more of the clauses of Section 157 (1) are to be taken into account. Now there would be no point in making the amendment of Section 21 (h) retrospective if the other clauses were to apply prospectively for then the force of the retrospectivity of clause (h) of Section 21 is made neutral. Therefore, if the new Section 21 (h) is to be read retrospectively from the commencement of Land Reforms Act, the amendment of Section 157 (1) which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any given moment of time from the commencement of the Land Reforms Act all the clauses or one or more of them and not clause (e) alone were to be taken note of.The amendment of clause (h) speaks of one or more clauses and when we read the clauses of Section 157 (1) we find them altered also. Therefore the new clauses must be read and not the old clauses. The High Court was thus right in its conclusion that the clauses of Section 157 (1) as amended also operate retrospectively. This disposes of the firstlatter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result iscannot refer that order to his capacity as the Assistant Collector. An act would, no doubt be referable to a capacity which would give it validity. But the law required the compensation officer to frame an issue and refer it to the competent Court. He could not decide the matter without doing so. One of the parties was before it and he ought to have asked that party to prove its case. He did nothing.It is, therefore, not wrong for the Settlement Officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under Section 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did not have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus no finality. | 0 | 3,338 | 1,670 | ### 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:
suit. Section 229-B provides that any person claiming to be an Asami of the whole or a part of it may sue the landlord for a declaration of his rights as Asami. Sub-section (3) of the same Section provided that the provisions are to apply mutatis mutandis to a suit by a person claiming to be sirdar (Adhivasi). Section 234-A then provides that the provisions of Section 229-B mentioned above shall apply to an Adhivasi as if he were an Asami. Schedule II to the Land Reforms Act in Item 34 appoints the Assistant Collector, Ist Class, as competent Court for the trial of suits for declaration of rights under Section 229-B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal.11. In the present case the Compensation Officer who passed the order on October 25, 1956 was also Assistant Collector, Ist Class, but he did not refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer.12. We will now come to the question whether Section 157 also operates retrospectively with Section 21. The latter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result is reached.13.Now a law is undoubtedly retrospective if the law says so expressly but it is not always necessary to say so expressly to make the law retrospective. There are occasions when a law be held to be retrospective in operation. Retrospection is not to be presumed for the presumption is the other-way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of course, only open if it is necessary. In the words of Lord Selborne in Main v. Stark, (1890) 15 AC 384 at p. 388 there might be something in the context of an Act or be collected from its language, which might give to words prima facie prospective a larger operation.More retrospectively is not to be given than what can be gathered from expressed or clearly implied intention of the legislature.14. Applying these tests to the statute we have in hand, we are clear that Section 157 (1) (a) must be read to apply retrospectively. It is clear that Section 21 (h) mentioned only one of the clauses viz., clause (e) as furnishing a ground for declaration. After the amendment of cl. (h) one or more of the clauses of Section 157 (1) are to be taken into account. Now there would be no point in making the amendment of Section 21 (h) retrospective if the other clauses were to apply prospectively for then the force of the retrospectivity of clause (h) of Section 21 is made neutral. Therefore, if the new Section 21 (h) is to be read retrospectively from the commencement of Land Reforms Act, the amendment of Section 157 (1) which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any given moment of time from the commencement of the Land Reforms Act all the clauses or one or more of them and not clause (e) alone were to be taken note of.The amendment of clause (h) speaks of one or more clauses and when we read the clauses of Section 157 (1) we find them altered also. Therefore the new clauses must be read and not the old clauses. The High Court was thus right in its conclusion that the clauses of Section 157 (1) as amended also operate retrospectively. This disposes of the first point.15. The next point is about the finality of the order of October 25, 1956 passed by the Compensation Officer. We cannot refer that order to his capacity as the Assistant Collector. An act would, no doubt be referable to a capacity which would give it validity. But the law required the compensation officer to frame an issue and refer it to the competent Court. He could not decide the matter without doing so. One of the parties was before it and he ought to have asked that party to prove its case. He did nothing.It is, therefore, not wrong for the Settlement Officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under Section 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did not have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus no finality.
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0
### Explanation:
in Item 34 appoints the Assistant Collector, Ist Class, as competent Court for the trial of suits for declaration of rights under Section 229-B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal.11. In the present case the Compensation Officer who passed the order on October 25, 1956 was also Assistant Collector, Ist Class, but he did not refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer.12.We will now come to the question whether Section 157 also operates retrospectively with Section 21.The latter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result is reached.13.Now a law is undoubtedly retrospective if the law says so expressly but it is not always necessary to say so expressly to make the law retrospective. There are occasions when a law be held to be retrospective in operation. Retrospection is not to be presumed for the presumption is the other-way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of course, only open if it is necessary. In the words of Lord Selborne inMain v. Stark, (1890) 15 AC 384 at p. 388there might be something in the context of an Act or be collected from its language, which might give to words prima facie prospective a larger operation.More retrospectively is not to be given than what can be gathered from expressed or clearly implied intention of thethese tests to the statute we have in hand, we are clear that Section 157 (1) (a) must be read to apply retrospectively. It is clear that Section 21 (h) mentioned only one of the clauses viz., clause (e) as furnishing a ground for declaration. After the amendment of cl. (h) one or more of the clauses of Section 157 (1) are to be taken into account. Now there would be no point in making the amendment of Section 21 (h) retrospective if the other clauses were to apply prospectively for then the force of the retrospectivity of clause (h) of Section 21 is made neutral. Therefore, if the new Section 21 (h) is to be read retrospectively from the commencement of Land Reforms Act, the amendment of Section 157 (1) which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any given moment of time from the commencement of the Land Reforms Act all the clauses or one or more of them and not clause (e) alone were to be taken note of.The amendment of clause (h) speaks of one or more clauses and when we read the clauses of Section 157 (1) we find them altered also. Therefore the new clauses must be read and not the old clauses. The High Court was thus right in its conclusion that the clauses of Section 157 (1) as amended also operate retrospectively. This disposes of the firstlatter was made retrospective expressly. The High Court in the Division Bench decision held that Section 157 was also retrospective by implication. The contention of the appellants is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir land because her husband was suffering from an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended Section then under Section 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what Section 21 enacts. If the unamended Section is to be read with Section 21 then the contrary result iscannot refer that order to his capacity as the Assistant Collector. An act would, no doubt be referable to a capacity which would give it validity. But the law required the compensation officer to frame an issue and refer it to the competent Court. He could not decide the matter without doing so. One of the parties was before it and he ought to have asked that party to prove its case. He did nothing.It is, therefore, not wrong for the Settlement Officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under Section 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did not have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus no finality.
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National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore & Others | the use (including the loading and/or unloading) of the motor vehicle. " The Schedule to the policy indicates the limits of liability and the amount of premium paid. The limits of liability are indicated as herein below : " Limits of liability :Limit of the amount of the companys Such amount as is necessary to meetliability under section II-1(1) in respect of the requirements of the Motor Vehiclesany one accident Act, 1939Limit of the amount of the companysliability under section II-1(11) in respect ofany one claim or series of claims arisingout of one event Rs. 20, 000. " The premium paid on the other hand is shown as below : Rs. P. " Premium 415.00Add 1/2% on I.E.V. 200.00Add for 53 passengers at Rs. 2.50 132.50Add for driver and conductor 10, 00757.50" 4. A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death of, or bodily injury to, any person caused by or arising out of the use (including the loading and or unloading) of the motor vehicle falling under section 11(1)(i) has been confined to " such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. " This liability, as is apparent from clause (b) of sub-section (2) of section 95 of the Act, was at the relevant time Rs. 20, 000 only. The details of the premium also indicate that no additional premium with regard to a case falling under section 11(1)(i) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insureds estimate of value including accessories (I.E.V.) thereof having been shown as Rs. 40, 000. In this view of the matter, the submission made by learned counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub-section (2) of section 95 of the Act, namely, Rs. 20, 000. An award against the appellant could not, therefore, have been made in excess of the said statutory liability.Learned counsel for the appellant then urged, relying on the decision of this court in British India General Insurance Co. Ltd. v. Captain Itbar Singh [1959] 29 Comp Cas (Ins) 60 ; AIR 1959 SC 1331 , threat in view of sub-section (6) of section 96 of the Act, no insurer, to whom the notice referred to in sub-section (2) thereof has been given, is entitled " to avoid his liability " to any person entitled to the benefit of any such judgment as is referred to in sub-section (1) thereof otherwise than in the manner provided for in sub-section (2). On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs. 20, 000 only inasmuch as this is not one of the defences specified in sub-section (2) of section 96 of the Act. We find it difficult to agree with this submission either. Firstly, in paragraph 12 of the report of this very case, it has been held that sub-section (2) of section 96 in fact deals with defences other than those based on the conditions of a policy. Secondly, from the words " to avoid his liability " used in sub-section (6) of section 96, it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub-section (2) of section 96 are applicable to a case where the insurer wants to avoid his liability. In the instant case, the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provision contained in this behalf in clause (b) of sub-section (2) of section 95 of the Act. In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised. 5. | 1[ds]In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised. | 1 | 2,653 | 360 | ### 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:
the use (including the loading and/or unloading) of the motor vehicle. " The Schedule to the policy indicates the limits of liability and the amount of premium paid. The limits of liability are indicated as herein below : " Limits of liability :Limit of the amount of the companys Such amount as is necessary to meetliability under section II-1(1) in respect of the requirements of the Motor Vehiclesany one accident Act, 1939Limit of the amount of the companysliability under section II-1(11) in respect ofany one claim or series of claims arisingout of one event Rs. 20, 000. " The premium paid on the other hand is shown as below : Rs. P. " Premium 415.00Add 1/2% on I.E.V. 200.00Add for 53 passengers at Rs. 2.50 132.50Add for driver and conductor 10, 00757.50" 4. A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death of, or bodily injury to, any person caused by or arising out of the use (including the loading and or unloading) of the motor vehicle falling under section 11(1)(i) has been confined to " such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. " This liability, as is apparent from clause (b) of sub-section (2) of section 95 of the Act, was at the relevant time Rs. 20, 000 only. The details of the premium also indicate that no additional premium with regard to a case falling under section 11(1)(i) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insureds estimate of value including accessories (I.E.V.) thereof having been shown as Rs. 40, 000. In this view of the matter, the submission made by learned counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub-section (2) of section 95 of the Act, namely, Rs. 20, 000. An award against the appellant could not, therefore, have been made in excess of the said statutory liability.Learned counsel for the appellant then urged, relying on the decision of this court in British India General Insurance Co. Ltd. v. Captain Itbar Singh [1959] 29 Comp Cas (Ins) 60 ; AIR 1959 SC 1331 , threat in view of sub-section (6) of section 96 of the Act, no insurer, to whom the notice referred to in sub-section (2) thereof has been given, is entitled " to avoid his liability " to any person entitled to the benefit of any such judgment as is referred to in sub-section (1) thereof otherwise than in the manner provided for in sub-section (2). On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs. 20, 000 only inasmuch as this is not one of the defences specified in sub-section (2) of section 96 of the Act. We find it difficult to agree with this submission either. Firstly, in paragraph 12 of the report of this very case, it has been held that sub-section (2) of section 96 in fact deals with defences other than those based on the conditions of a policy. Secondly, from the words " to avoid his liability " used in sub-section (6) of section 96, it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub-section (2) of section 96 are applicable to a case where the insurer wants to avoid his liability. In the instant case, the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provision contained in this behalf in clause (b) of sub-section (2) of section 95 of the Act. In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised. 5.
### Response:
1
### Explanation:
In the instant case, since, as seen above, the appellant did not undertake in the policy any liability in excess of the statutory liability, the award against it could be only in accordance with the said statutory liability.Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. In this connection, what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle, for reasons known to him, does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage, the necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.
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Krishna Prasad And Others Vs. Gauri Kumari Devi | terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act. 18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or not. 19. in Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 , the Full Bench of the High Court had occasion to consider whether a mortgagee decree-holder of the interest of the proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such a case. the mortgagee cannot be forced to seek his remedy under S. 14 and to satisfy his mortgage debt out of the compensation payable under the Act. It appears that the Full Bench was inclined to take the view that the interest of the judgment-debtor in the bakasht lands was one of the interests saved by S. 6 and that, in consequence, the bakasht lands continued to remain in the possession of the ex-proprietor not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the security offered by the mortgage-deed, the decree-holder was entitled o proceed against them without taking his remedy under Section 14 of the Act. This conclusion was based on the view that the effect of S. 4 (d) read with Sections 3 and 6 of the Act was not to destroy the mortgage in its entirety but only with respect to that part of the estate which had vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure-holder. It is conceded by Mr. Jha that this decision also proceeds on the assumption that the mortgage security consists of an estate which as vested in the State and of bakasht lands which did not, in substance, vest in the State but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits of the conclusion reached by the Full Bench in this case. It may, however, be not out of place to add incidentally that Mr. Sarjoo Prasad for the respondent has suggested that the assumption made by the Full Bench about the character of the bakasht lands by virtue of the provisions of S. 6 is inconsistent with the decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1981 SC 1790. His argument is that the provisions of Section 6 of the Act correspond to the provisions of S.18 of the U. P. Zamindari Abolition and Land Reforms Act (I of 1951) and that what this Court has said about the effect of the provisions of S. 18, has shaken the validity of the conclusion of the Full Bench in regard to the effect of Sec. 6 of the Act. We do not think, it necessary to consider this point as well in the present appeal. In any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal. | 0[ds]In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained in Section 16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under Section 3. Therefore, in construing S. 4(d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act. Mr. Jha fairly conceded that if the words used in S. 4(d) are literally construed and they are given their natural grammatical meaning, it would not be easy to limit the operation of S. 4(d) to execution proceedings where relief is claimed against the properties which have vested in the State. The relevant clause in S. 4(d) provides that all suits and proceeding for the recovery of any such money which may be pending on the date of the vesting shall be dropped; and these words are wide enough to include within their sweep execution proceedings, even though the recovery of the amount due may have been claimed by the decree-holder from properties other than those which have vested in the State. The only limitation imposed by the clause is that the execution proceedings should be for the recovery of any such money---meaning any money due from the proprietor on the strength of a mortgage executed by him in respect of an estate. We have already emphasised that in the present case, the whole of the mortgaged property is an estate and, therefore, it is unnecessary for us to consider what would be the effect of the provisions of S. 4(d) in cases where part of the mortgaged property is an estate and part is not. It is also unnecessary to consider whether Section 4(d) would create a bar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree-holders claim even to the extent of the amounts scaled down under S. 16We do not see how this principle can assist Mr. Jha in the present case. The scheme of the relevant provisions of the Act to which we have already referred unambiguously suggests that where the whole of the mortgaged property is an estate, certain consequences follow. The decree-holder has to make a claim; the claim has to be enquired into by the Claims Officer; the amount due to the decree-holder has to be determined by the Claims Officer and the amount so determined has to be paid to the decree-holder from out of the compensation money payable to the judgment-debtor. Having regard to the said scheme, it is difficult to confine the application of S. 4(d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment-debtor. That being so, we are satisfied that on the facts of this case, the High Court was right in holding that the application made by the appellants to execute the decree against the respondent by proceeding against her non-mortgaged properties is incompetent at the present stage. The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to execute the personal decree17. This conclusion follows even on the terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or notIn any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal. | 0 | 5,719 | 1,296 | ### 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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terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act. 18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or not. 19. in Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 , the Full Bench of the High Court had occasion to consider whether a mortgagee decree-holder of the interest of the proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such a case. the mortgagee cannot be forced to seek his remedy under S. 14 and to satisfy his mortgage debt out of the compensation payable under the Act. It appears that the Full Bench was inclined to take the view that the interest of the judgment-debtor in the bakasht lands was one of the interests saved by S. 6 and that, in consequence, the bakasht lands continued to remain in the possession of the ex-proprietor not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the security offered by the mortgage-deed, the decree-holder was entitled o proceed against them without taking his remedy under Section 14 of the Act. This conclusion was based on the view that the effect of S. 4 (d) read with Sections 3 and 6 of the Act was not to destroy the mortgage in its entirety but only with respect to that part of the estate which had vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure-holder. It is conceded by Mr. Jha that this decision also proceeds on the assumption that the mortgage security consists of an estate which as vested in the State and of bakasht lands which did not, in substance, vest in the State but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits of the conclusion reached by the Full Bench in this case. It may, however, be not out of place to add incidentally that Mr. Sarjoo Prasad for the respondent has suggested that the assumption made by the Full Bench about the character of the bakasht lands by virtue of the provisions of S. 6 is inconsistent with the decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1981 SC 1790. His argument is that the provisions of Section 6 of the Act correspond to the provisions of S.18 of the U. P. Zamindari Abolition and Land Reforms Act (I of 1951) and that what this Court has said about the effect of the provisions of S. 18, has shaken the validity of the conclusion of the Full Bench in regard to the effect of Sec. 6 of the Act. We do not think, it necessary to consider this point as well in the present appeal. In any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal.
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0
### Explanation:
have vested in the State. The relevant clause in S. 4(d) provides that all suits and proceeding for the recovery of any such money which may be pending on the date of the vesting shall be dropped; and these words are wide enough to include within their sweep execution proceedings, even though the recovery of the amount due may have been claimed by the decree-holder from properties other than those which have vested in the State. The only limitation imposed by the clause is that the execution proceedings should be for the recovery of any such money---meaning any money due from the proprietor on the strength of a mortgage executed by him in respect of an estate. We have already emphasised that in the present case, the whole of the mortgaged property is an estate and, therefore, it is unnecessary for us to consider what would be the effect of the provisions of S. 4(d) in cases where part of the mortgaged property is an estate and part is not. It is also unnecessary to consider whether Section 4(d) would create a bar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree-holders claim even to the extent of the amounts scaled down under S. 16We do not see how this principle can assist Mr. Jha in the present case. The scheme of the relevant provisions of the Act to which we have already referred unambiguously suggests that where the whole of the mortgaged property is an estate, certain consequences follow. The decree-holder has to make a claim; the claim has to be enquired into by the Claims Officer; the amount due to the decree-holder has to be determined by the Claims Officer and the amount so determined has to be paid to the decree-holder from out of the compensation money payable to the judgment-debtor. Having regard to the said scheme, it is difficult to confine the application of S. 4(d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment-debtor. That being so, we are satisfied that on the facts of this case, the High Court was right in holding that the application made by the appellants to execute the decree against the respondent by proceeding against her non-mortgaged properties is incompetent at the present stage. The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to execute the personal decree17. This conclusion follows even on the terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or notIn any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal.
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Esthuri Aswathiah Vs. Commissioner Of Income-Tax, Mysore | Calender months. Under S. 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf and the period so determined may be more or less than 12 months. Under S. 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of S. 2(11) (i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercise this option, the meaning of the expression "previous year" as applicable to him is determined, and be cannot exercises this option again "so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose."If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the previous year for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the Revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogether. 7. Mr. Srinivasan submitted that the Income-tax Officer could grant the sanction on condition that the assessee should have two previous years, one consisting of a period of nine months from July 1 up to March 31 and the other of a period of 12 months form April 1 to the next succeeding March 31. This is an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under S. 3 for any assessment year is in respect of the income of the previous year.The concept of two previous years in relation to the same assessment year is repugnant to S. 3.In Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 at p. 404; (AIR 1959 SC 219 at p. 222), this Court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that S. 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the usual assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessment in the same assessment year in respect of two previous years. 8. Mr. Srinivasan alternatively submitted that the Income-tax Officer could accord sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months. This again is an impossible contention. The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By S. 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July 1, 1950 and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year, 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act. | 0[ds]6. A combined reading of the several clauses of S. 2(11) shows that the length of a previous year need not necessarily be 12 Calender months. Under S. 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf and the period so determined may be more or less than 12 months. Under S. 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of S. 2(11) (i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercise this option, the meaning of the expression "previous year" as applicable to him is determined, and be cannot exercises this option again "so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose."If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the previous year for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the Revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogetherThere cannot be two previous years in respect of the same assessment year. The charge under S. 3 for any assessment year is in respect of the income of the previous year.The concept of two previous years in relation to the same assessment year is repugnant to S. 3.In Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 at p. 404; (AIR 1959 SC 219 at p. 222), this Court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that S. 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the usual assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessment in the same assessment year in respect of two previous yearsThe Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By S. 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July 1, 1950 and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year, 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act. | 0 | 2,467 | 1,025 | ### 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:
Calender months. Under S. 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf and the period so determined may be more or less than 12 months. Under S. 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of S. 2(11) (i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercise this option, the meaning of the expression "previous year" as applicable to him is determined, and be cannot exercises this option again "so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose."If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the previous year for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the Revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogether. 7. Mr. Srinivasan submitted that the Income-tax Officer could grant the sanction on condition that the assessee should have two previous years, one consisting of a period of nine months from July 1 up to March 31 and the other of a period of 12 months form April 1 to the next succeeding March 31. This is an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under S. 3 for any assessment year is in respect of the income of the previous year.The concept of two previous years in relation to the same assessment year is repugnant to S. 3.In Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 at p. 404; (AIR 1959 SC 219 at p. 222), this Court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that S. 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the usual assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessment in the same assessment year in respect of two previous years. 8. Mr. Srinivasan alternatively submitted that the Income-tax Officer could accord sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months. This again is an impossible contention. The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By S. 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July 1, 1950 and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year, 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act.
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6. A combined reading of the several clauses of S. 2(11) shows that the length of a previous year need not necessarily be 12 Calender months. Under S. 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf and the period so determined may be more or less than 12 months. Under S. 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of S. 2(11) (i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercise this option, the meaning of the expression "previous year" as applicable to him is determined, and be cannot exercises this option again "so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose."If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the previous year for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the Revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogetherThere cannot be two previous years in respect of the same assessment year. The charge under S. 3 for any assessment year is in respect of the income of the previous year.The concept of two previous years in relation to the same assessment year is repugnant to S. 3.In Dhandhania Kedia and Co. v. Commr. of Income-tax, (1959) 35 ITR 400 at p. 404; (AIR 1959 SC 219 at p. 222), this Court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that S. 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the usual assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessment in the same assessment year in respect of two previous yearsThe Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By S. 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July 1, 1950 and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year, 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act.
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P.V.K.Distillery Ltd Vs. Mahendra Ram | one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any. 15) In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. [Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal, 1978 Lab IC 179 (SC).] 16) In Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 , this Court has held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law. 17) In the case of Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 , this Court has observed that the plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief. 18) In Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 , this Court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. 19) In Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193 , the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retrial benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages." 20) In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in terms of work, production etc. 21) Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The notice was issued with a view that the appellants factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. The workman has not entered appearance to justify the award passed by the Labour Court. Therefore, in our view, it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellants factory had been declared sick and remained closed for many years and has been assigned to a new management led by its Chief Executive Director, Sri M.K. Pilania in order to rehabilitate/reconstruct it. 22) In view of the above discussion, we are of the opinion that it would be fair and reasonable to direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court. 23) Accordingly, the judgment and order of the Labour Court and the High Court are set aside and it is declared that the respondent herein shall be entitled to 50% of the total back wages payable during the aforesaid period in terms of Section 6-N of the U.P. Industrial Disputes Act. | 1[ds]U.P. Industrial Disputes | 1 | 2,643 | 8 | ### 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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one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any. 15) In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. [Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal, 1978 Lab IC 179 (SC).] 16) In Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 , this Court has held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law. 17) In the case of Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 , this Court has observed that the plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief. 18) In Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 , this Court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. 19) In Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193 , the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retrial benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages." 20) In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in terms of work, production etc. 21) Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The notice was issued with a view that the appellants factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. The workman has not entered appearance to justify the award passed by the Labour Court. Therefore, in our view, it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellants factory had been declared sick and remained closed for many years and has been assigned to a new management led by its Chief Executive Director, Sri M.K. Pilania in order to rehabilitate/reconstruct it. 22) In view of the above discussion, we are of the opinion that it would be fair and reasonable to direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court. 23) Accordingly, the judgment and order of the Labour Court and the High Court are set aside and it is declared that the respondent herein shall be entitled to 50% of the total back wages payable during the aforesaid period in terms of Section 6-N of the U.P. Industrial Disputes Act.
### Response:
1
### Explanation:
U.P. Industrial Disputes
|
Jasjit Singh Vs. Foreign Exchange Regulation Appellate Board | (l) (d) of the Foreign Exchange Regulation Act, 1973. The said order was confirmed by the appellate tribunal and therefore this appeal under section 54 of the Foreign Exchange regulations Act, 1973 is preferred. ( 2 ) THE facts in the present matter are not disputed, namely, one Mr. Hansen who was a Danish national came to India sometime in 1950 and married an Indian lady and stayed in India till 1975. Mr. Hansen left India along with his family members which included Indian lady who was his wife, in the year 1975. While Mr. Hansen was in India, he was staying in a rented premises known as "grey Dawn" Gambers Estate, s. V. Road, Mumbai, at the rate of Rs. 800/- per month inclusive of the furniture in said bungalow. While leaving India in June-1975, Mr. Hansen entered into an agreement of care taker with appellant Company. Therefore, the appellant company continued to make payment of Rs. 800/- per month to landlord Mr. Mascarenhas till 1st February 1978 when the premises were handed over by the appellants to Mr. Marcarenhas- landlord of the said premises. Thus, it is admitted position that from 13. 6. 1975 to September 1976 rent of the premises known as "gray Dawn" was paid by the appellants to Mr. Marcarehas landlord for and on behalf of the Mr. Hansen, a Danish national. Taking into cosideration these facts, the penalty was imposed by the director of Enforcement under section 9 (1) (a) and 9 (l) (d) of the said Act which was confirmed by the appellant Tribunal.( 3 ) LEARNED Counsel appearing on behalf of the appellant submitted that the definition of a "person resident in India" as available from Clause (p) of section 2 of the said act has been misconstrued by the authorities to hold that Mr. Hansen is a "resident outside India" and the payment for and on behalf of a foreign national has been made by the appellants. In order to scrutinize this aspect, the relevant portion of the definition clause (p) for our consideration is Clause (iii), which is as follows: (p) "person resident in India" means - (iii) a person, not being a citizen of India, who has come to, or stays in India, in either case - (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for staying with his or her spouse, such spouse being a person resident in India, or (d) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period : explanation.-A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub-clause (iii) been resident in India, shall, during any period in which he is outside India, be deemed to be not resident in India;( 4 ) FROM the facts it appears that from 1950 to 1975,. e. , till June when Mr. Hansen left for Denmark, he was employed in India. Therefore, he was a person resident in India. However, the day one he left India he is no more covered under Clause (iii) (a) of definition Clause (p ). ( 5 ) IT is further to be noted that he has married with an Indian lady. Therefore, if he is residing or staying with his spouse, such a spouse being a resident in India, he can be treated as a person resident of India. However, it is pertinent to note that he left India in 1975 along with his wife. Therefore, he was not staying in India so as to reside along with his spouse. Since both of them, namely, Mr. Hansen and his wife had left India in 1975, thereafter it is not possible to hold that Mr. Hansen was a person residing in India. ( 6 ) LOOKING from any point of view, on the facts which are admitted, it is not possible to hold that Mr. Hansen was residing in India from June 1975 till February 1978 when the payments were made by the caretaker appellants for and on behalf of Mr. Hansen to Mr. Marcarenhas-landlord of the premises "gray Dawn". Result is that provisions of section 9 (1) Clauses (a) and (d) are attracted which are as follows:"9. Restrictions on payments:- (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India shall - (a) make any payment to or for the credit of any person resident outside India; (b ). . . . (c ). . . . (d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;"( 7 ) THEREFORE, what we find that the payments which were made by the appellants were for and on behalf of a foreign national, without having appropriate permission from the Reserve Bank of India and there was a breach of section 9 (1) Clauses (a) and (d) of the Foreign Exchange Regulation Act, 1973, as has been rightly observed by the authorities. The matter is without any merit.( 8 ) IT is submitted by the learned Counsel appearing on behalf of the appellant that all the claims were settled by the appellant with the landlord and therefore it was not a case of a payment on behalf of the foreign national. The submission is recorded only for the purpose of rejection because it carries no merit because it is an admitted fact that the payments which were made by the appellant were being made as a caretaker of the premises of Mr. Hansen as per the agreement dated 13. 6. 1975. Therefore, the submission that the claims of the landlord were settled by the appellants in their individual capacities, is without any merit and is hereby rejected. | 0[ds]( 6 ) LOOKING from any point of view, on the facts which are admitted, it is not possible to hold that Mr. Hansen was residing in India from June 1975 till February 1978 when the payments were made by the caretaker appellants for and on behalf of Mr. Hansen to Mr.of the premises "gray Dawn". Result is that provisions of section 9 (1) Clauses (a) and (d) are attracted which are as follows:"9. Restrictions on payments:(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of thiswhich may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India shall(a) make any payment to or for the credit of any person resident outside India; (b ). . . . (c ). . . . (d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;"( 7 ) THEREFORE, what we find that the payments which were made by the appellants were for and on behalf of a foreign national, without having appropriate permission from the Reserve Bank of India and there was a breach of section 9 (1) Clauses (a) and (d) of the Foreign Exchange Regulation Act, 1973, as has been rightly observed by the authorities. The matter is without anysubmission is recorded only for the purpose of rejection because it carries no merit because it is an admitted fact that the payments which were made by the appellant were being made as a caretaker of the premises of Mr. Hansen as per the agreement dated 13. 6. 1975. Therefore, the submission that the claims of the landlord were settled by the appellants in their individual capacities, is without any merit and is hereby rejected. | 0 | 1,361 | 360 | ### 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:
(l) (d) of the Foreign Exchange Regulation Act, 1973. The said order was confirmed by the appellate tribunal and therefore this appeal under section 54 of the Foreign Exchange regulations Act, 1973 is preferred. ( 2 ) THE facts in the present matter are not disputed, namely, one Mr. Hansen who was a Danish national came to India sometime in 1950 and married an Indian lady and stayed in India till 1975. Mr. Hansen left India along with his family members which included Indian lady who was his wife, in the year 1975. While Mr. Hansen was in India, he was staying in a rented premises known as "grey Dawn" Gambers Estate, s. V. Road, Mumbai, at the rate of Rs. 800/- per month inclusive of the furniture in said bungalow. While leaving India in June-1975, Mr. Hansen entered into an agreement of care taker with appellant Company. Therefore, the appellant company continued to make payment of Rs. 800/- per month to landlord Mr. Mascarenhas till 1st February 1978 when the premises were handed over by the appellants to Mr. Marcarenhas- landlord of the said premises. Thus, it is admitted position that from 13. 6. 1975 to September 1976 rent of the premises known as "gray Dawn" was paid by the appellants to Mr. Marcarehas landlord for and on behalf of the Mr. Hansen, a Danish national. Taking into cosideration these facts, the penalty was imposed by the director of Enforcement under section 9 (1) (a) and 9 (l) (d) of the said Act which was confirmed by the appellant Tribunal.( 3 ) LEARNED Counsel appearing on behalf of the appellant submitted that the definition of a "person resident in India" as available from Clause (p) of section 2 of the said act has been misconstrued by the authorities to hold that Mr. Hansen is a "resident outside India" and the payment for and on behalf of a foreign national has been made by the appellants. In order to scrutinize this aspect, the relevant portion of the definition clause (p) for our consideration is Clause (iii), which is as follows: (p) "person resident in India" means - (iii) a person, not being a citizen of India, who has come to, or stays in India, in either case - (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for staying with his or her spouse, such spouse being a person resident in India, or (d) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period : explanation.-A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub-clause (iii) been resident in India, shall, during any period in which he is outside India, be deemed to be not resident in India;( 4 ) FROM the facts it appears that from 1950 to 1975,. e. , till June when Mr. Hansen left for Denmark, he was employed in India. Therefore, he was a person resident in India. However, the day one he left India he is no more covered under Clause (iii) (a) of definition Clause (p ). ( 5 ) IT is further to be noted that he has married with an Indian lady. Therefore, if he is residing or staying with his spouse, such a spouse being a resident in India, he can be treated as a person resident of India. However, it is pertinent to note that he left India in 1975 along with his wife. Therefore, he was not staying in India so as to reside along with his spouse. Since both of them, namely, Mr. Hansen and his wife had left India in 1975, thereafter it is not possible to hold that Mr. Hansen was a person residing in India. ( 6 ) LOOKING from any point of view, on the facts which are admitted, it is not possible to hold that Mr. Hansen was residing in India from June 1975 till February 1978 when the payments were made by the caretaker appellants for and on behalf of Mr. Hansen to Mr. Marcarenhas-landlord of the premises "gray Dawn". Result is that provisions of section 9 (1) Clauses (a) and (d) are attracted which are as follows:"9. Restrictions on payments:- (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India shall - (a) make any payment to or for the credit of any person resident outside India; (b ). . . . (c ). . . . (d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;"( 7 ) THEREFORE, what we find that the payments which were made by the appellants were for and on behalf of a foreign national, without having appropriate permission from the Reserve Bank of India and there was a breach of section 9 (1) Clauses (a) and (d) of the Foreign Exchange Regulation Act, 1973, as has been rightly observed by the authorities. The matter is without any merit.( 8 ) IT is submitted by the learned Counsel appearing on behalf of the appellant that all the claims were settled by the appellant with the landlord and therefore it was not a case of a payment on behalf of the foreign national. The submission is recorded only for the purpose of rejection because it carries no merit because it is an admitted fact that the payments which were made by the appellant were being made as a caretaker of the premises of Mr. Hansen as per the agreement dated 13. 6. 1975. Therefore, the submission that the claims of the landlord were settled by the appellants in their individual capacities, is without any merit and is hereby rejected.
### Response:
0
### Explanation:
( 6 ) LOOKING from any point of view, on the facts which are admitted, it is not possible to hold that Mr. Hansen was residing in India from June 1975 till February 1978 when the payments were made by the caretaker appellants for and on behalf of Mr. Hansen to Mr.of the premises "gray Dawn". Result is that provisions of section 9 (1) Clauses (a) and (d) are attracted which are as follows:"9. Restrictions on payments:(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of thiswhich may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India shall(a) make any payment to or for the credit of any person resident outside India; (b ). . . . (c ). . . . (d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;"( 7 ) THEREFORE, what we find that the payments which were made by the appellants were for and on behalf of a foreign national, without having appropriate permission from the Reserve Bank of India and there was a breach of section 9 (1) Clauses (a) and (d) of the Foreign Exchange Regulation Act, 1973, as has been rightly observed by the authorities. The matter is without anysubmission is recorded only for the purpose of rejection because it carries no merit because it is an admitted fact that the payments which were made by the appellant were being made as a caretaker of the premises of Mr. Hansen as per the agreement dated 13. 6. 1975. Therefore, the submission that the claims of the landlord were settled by the appellants in their individual capacities, is without any merit and is hereby rejected.
|
Mohd. Jamal Vs. Union Of India | it has been given a supervisory function to ensure proper distribution of petrol and petroleum products. Mr. Malhotra urged that anything which was not in public interest, but was likely to affect the public interest, cannot be retained and has to be quashed. As will be evident from the submissions made on behalf of the respective parties, the case of the Appellants and the Writ Petitioners, in most of the cases, is based on the doctrine of promissory estoppel on the basis of a promise apparently made by the Respondents to the land owners that they would be granted dealerships in lieu of the lands offered by them for setting up of the retail outlets. From the facts as disclosed, there is sufficient evidence to indicate that initially negotiations had been conducted by the Oil Companies with aspiring land owners that in lieu of the lease to be granted they would be provided with dealerships. The applications made pursuant to the advertisement published by the Oil Companies were also duly processed and were acted upon. However, it is only the suspension of the Policy dated 8.10.2002, which prevented such dealerships for being given to the various applicants. 56. Upon deregularisation of the distribution of petroleum products, the Oil Companies issued guidelines dealing with the procedure for locations outside the marketing plans. It was also stipulated that for the purpose of selection, the dealerships would be categorised as indicated in the guidelines and all retail outlets would be developed only on A/C sites basis, which finds place in Clause (2) of the guidelines. 57. The said guidelines referred to grant of dealership which is completely different from the grant of long-term leases by the land owners to the Oil Companies upon the condition that the same could be used by the lessees in any way they liked, which included the right to sublet the demised plot. The concept of Company Owned and Company Operated outlets was sought to be introduced on 6.9.2003, in supersession of Policy No.MDPM- 319/02 dated 8.10.2002 and the two cannot be co-related unless a link can be established by the Appellants that they had entered into the lease agreements with the Oil Companies upon the understanding that once the earlier policy was restored, the land owners would be given the option of having the COCO units converted into regular retail outlets. 58. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only the day-to-day operation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.59. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General. | 0[ds]58. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only theoperation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.59. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General. | 0 | 10,688 | 666 | ### 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:
it has been given a supervisory function to ensure proper distribution of petrol and petroleum products. Mr. Malhotra urged that anything which was not in public interest, but was likely to affect the public interest, cannot be retained and has to be quashed. As will be evident from the submissions made on behalf of the respective parties, the case of the Appellants and the Writ Petitioners, in most of the cases, is based on the doctrine of promissory estoppel on the basis of a promise apparently made by the Respondents to the land owners that they would be granted dealerships in lieu of the lands offered by them for setting up of the retail outlets. From the facts as disclosed, there is sufficient evidence to indicate that initially negotiations had been conducted by the Oil Companies with aspiring land owners that in lieu of the lease to be granted they would be provided with dealerships. The applications made pursuant to the advertisement published by the Oil Companies were also duly processed and were acted upon. However, it is only the suspension of the Policy dated 8.10.2002, which prevented such dealerships for being given to the various applicants. 56. Upon deregularisation of the distribution of petroleum products, the Oil Companies issued guidelines dealing with the procedure for locations outside the marketing plans. It was also stipulated that for the purpose of selection, the dealerships would be categorised as indicated in the guidelines and all retail outlets would be developed only on A/C sites basis, which finds place in Clause (2) of the guidelines. 57. The said guidelines referred to grant of dealership which is completely different from the grant of long-term leases by the land owners to the Oil Companies upon the condition that the same could be used by the lessees in any way they liked, which included the right to sublet the demised plot. The concept of Company Owned and Company Operated outlets was sought to be introduced on 6.9.2003, in supersession of Policy No.MDPM- 319/02 dated 8.10.2002 and the two cannot be co-related unless a link can be established by the Appellants that they had entered into the lease agreements with the Oil Companies upon the understanding that once the earlier policy was restored, the land owners would be given the option of having the COCO units converted into regular retail outlets. 58. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only the day-to-day operation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.59. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General.
### Response:
0
### Explanation:
58. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only theoperation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.59. We are inclined to hold that the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. The decisions cited on behalf of the Appellants/Petitioners, are not, therefore, relevant for a decision in these cases. Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General.
|
Ramachander Shiv Narayan Vs. Commissioner Of Income Tax,Andhra Pradesh, Hyderabad | [1968] 68 ITR 120 (All) , money entrusted to an employee for being deposited in the bank but lost in the way by robbery was held to be deductible. To the same effect is the view expressed by the Allahabad High Court in the case of Commissioner of Income-tax v. Sarya Sugar Mills (P.) Ltd. [1968] 70 ITR 109 , by the Madras High Court in Commissioner of Income-tax v. K.T.M.S. Mahmood [1969] 74 ITR 100 , by the Madhya Pradesh High Court in Commissioner of Income-tax v. Ganesh Rice Mill [1970] 77 ITR 889 and the Rajasthan High Court in Chhotulal Ajitsingh v. Commissioner of Income-tax [1973] 89 ITR 178. The contrary view expressed in the case of Bansidhar Onkarmal v. Commissioner of Income-tax [1949] 17 ITR 247 (Orissa) and in the Madras Full Bench case of Chettiars AIR 1930 Mad 808 [FB] is no longer good law. The ratio of Dagas case [1958] 34 ITR 10 (SC) does not seem to have been correctly applied by the Punjab High Court in Ram Gopal Ram Sarup v. Commissioner of Income-tax [1963] 47 ITR 611Now, we proceed to point out the persistently wrong application of the law laid down by this court by the Andhra Pradesh High Court in two earlier decisions followed in the decision under appeal also. They are : Commissioner of Income-tax v. Chakka Narayana [1961] 43 ITR 249 (AP) and Maduri Rajeswar v. Commissioner of Income-tax [1964] 51 ITR 213 (AP) . In Chakka Narayanas case [1961] 43 ITR 249 (AP) the assessee, who was a dealer in cloth and Government securities, encashed Government securities worth about Rs. 20, 000. He went to the Madras railway station for taking the cash to his place of business but lost the money on account of theft committed. The High Court referred to Badridas Dagas case [1958] 34 ITR 10 (SC), but yet distinguished it and preferred to follow the majority decision of the Full Bench of the Madras High Court in Ramaswami Chettiars case AIR 1930 Mad 808 [FB], which, as we have already pointed out, was not approved by this court in Nainital Banks case [1965] 55 ITR 707 (SC). The High Court enunciated the law correctly, but committed in error in applying the same to the facts of that case when it said--See [1961] 43 ITR 249 , 251 (AP) :"It could not be posited that it was absolutely necessary for the assessee to cash the cheque issued and to carry the the money on has person. It is only when it could be posited that it was part of his business to take money with him that it could be said that the loss was incidental to his business."12. We do not approve of this distinction. Similarly, the Andhra Pradesh High Court took a narrow view in Maduri Rajeshwars case [1964] 51 ITR 213 also. There, a stranger came to the assessees shop during business hours and, when the assessee had gone into another room to talk on the telephone, the stranger removed the cash box and disappeared. Chandra Reddy C.J., who had delivered the leading judgment in the earlier case as also in this case, if we may point out with respect, committed the same mistake when he said at page 216"It cannot be postulated that the loss sustained by the assessee resulting from the theft committed by the stranger springs directly from his business or is incidental to the carrying on of it. The only connection that could be established in this case is that at the time theft was committed money was in the business premises and it was during business hours. There is no other connection between the theft of the money and the business of the assessee."13. It is to be remembered that the direct and proximate connection and nexus must be between the business operation and the loss. It goes without saying that a businessman has to keep money either when he gets it as sale proceeds of the stock-in-trade or for disbursement to meet the business expenses or for purchasing stock-in-trade and if he loses such money in the ordinary course of business, the loss is a deductible trading loss. It is immaterial whether the money is a part of the stock-in-trade, such as, of a banking company or a money-lender, or is directly connected with the other business operations. The risk is inherent in the carrying on of the business and is either directly connected with it or incidental to it.14. In the judgment under appeal the High Court, to our mind, has taken the same erroneous view and given the answer against the assessee in spite of the fact that it has noticed a catena of cases of the various High Courts already alluded to by us also. Distinguishing the preponderance of the view expressed in the various decisions in favour of the assessee, the High Court, in our opinion, wrongly chose to stick to its earlier narrow view.15. In the light of the conspectus of the law, as discussed above, let us see whether on the facts found by the Tribunal the loss of Rs. 30, 000 was allowable as a trading loss. The assessee had borrowed a sum of Rs. 50, 000 from some creditor. The money was brought in cash to Rajahmundry by its employee. Such a mode of business operation is very common and wellknown. Out of the said sum of Rs. 50, 000 which was meant for purchase of Government securities a sum of Rs. 30, 000 was lost by theft. It is immaterial whether Government, securities were purchased by the remaining sum of Rs. 20,000 or not. The loss was, however, directly connected with the business operation and was incidental to the carrying on of the business of purchase of Government securities to earn profit. In such a situation it was a part of the trading loss and deductible as such in arriving at the true profits of the assessee | 1[ds]But we shall presently show that the Andhra Pradesh High Court persisted and has done so even in the judgment under appeal in taking, rather, a narrow view of the matter and not correctly applying the ratio decidendi of Badridas Dagas case [1958] 34 ITR 10 (SC) and Nainital Banks case [1965] 55 ITR 707 terms no specific provision is to be found in either of the two Acts for allowing deduction of a trading loss of the kind we are concerned with in this case. But it has been uniformly laid down that a trading loss not being a capital loss has got to be taken into account while arriving at the true figures of the assessees income in the commercial sense. The list of permissible deductions in either of the Acts is notIn our Acts there is no such express provision because the corresponding provision used the term "expenditure" and notprinciple applicable in India is more or less the same. If there is a direct and proximate nexus between the business operation and the loss or it is incidental to it, then the loss is deductible, as, without the business operation and doing all that is incidental to it, no profit can be earned. It is in that sense that from a commercial standard such a loss is considered to be a trading one and becomes deductible from the total income, although, in terms neither in the 1922 Act nor in the 1961 Act, there is a provision like section 51(1) of the Australian ActThe contrary view expressed in the case of Bansidhar Onkarmal v. Commissioner of Income-tax [1949] 17 ITR 247 (Orissa) and in the Madras Full Bench case of Chettiars AIR 1930 Mad 808 [FB] is no longer good law. The ratio of Dagas case [1958] 34 ITR 10 (SC) does not seem to have been correctly applied by the Punjab High Court in Ram Gopal Ram Sarup v. Commissioner of Income-tax [1963] 47 ITRNow, we proceed to point out the persistently wrong application of the law laid down by this court by the Andhra Pradesh High Court in two earlier decisions followed in the decision under appealHigh Court referred to Badridas Dagas case [1958] 34 ITR 10 (SC), but yet distinguished it and preferred to follow the majority decision of the Full Bench of the Madras High Court in Ramaswami Chettiars case AIR 1930 Mad 808 [FB], which, as we have already pointed out, was not approved by this court in Nainital Banks case [1965] 55 ITR 707 (SC). The High Court enunciated the law correctly, but committed in error in applying the same to the facts of that case when itcould not be posited that it was absolutely necessary for the assessee to cash the cheque issued and to carry the the money on has person. It is only when it could be posited that it was part of his business to take money with him that it could be said that the loss was incidental to hisdo not approve of this distinction. Similarly, the Andhra Pradesh High Court took a narrow view in Maduri Rajeshwars case [1964] 51 ITR 213 also.is to be remembered that the direct and proximate connection and nexus must be between the business operation and the loss. It goes without saying that a businessman has to keep money either when he gets it as sale proceeds of the stock-in-trade or for disbursement to meet the business expenses or for purchasing stock-in-trade and if he loses such money in the ordinary course of business, the loss is a deductible trading loss. It is immaterial whether the money is a part of the stock-in-trade, such as, of a banking company or a money-lender, or is directly connected with the other business operations. The risk is inherent in the carrying on of the business and is either directly connected with it or incidental tothe judgment under appeal the High Court, to our mind, has taken the same erroneous view and given the answer against the assessee in spite of the fact that it has noticed a catena of cases of the various High Courts already alluded to by us also. Distinguishing the preponderance of the view expressed in the various decisions in favour of the assessee, the High Court, in our opinion, wrongly chose to stick to its earlier narrowassessee had borrowed a sum of Rs. 50, 000 from some creditor. The money was brought in cash to Rajahmundry by its employee. Such a mode of business operation is very common and wellknown. Out of the said sum of Rs. 50, 000 which was meant for purchase of Government securities a sum of Rs. 30, 000 was lost by theft. It is immaterial whether Government, securities were purchased by the remaining sum of Rs. 20,000 or not. The loss was, however, directly connected with the business operation and was incidental to the carrying on of the business of purchase of Government securities to earn profit. In such a situation it was a part of the trading loss and deductible as such in arriving at the true profits of the assessee | 1 | 3,892 | 950 | ### 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:
[1968] 68 ITR 120 (All) , money entrusted to an employee for being deposited in the bank but lost in the way by robbery was held to be deductible. To the same effect is the view expressed by the Allahabad High Court in the case of Commissioner of Income-tax v. Sarya Sugar Mills (P.) Ltd. [1968] 70 ITR 109 , by the Madras High Court in Commissioner of Income-tax v. K.T.M.S. Mahmood [1969] 74 ITR 100 , by the Madhya Pradesh High Court in Commissioner of Income-tax v. Ganesh Rice Mill [1970] 77 ITR 889 and the Rajasthan High Court in Chhotulal Ajitsingh v. Commissioner of Income-tax [1973] 89 ITR 178. The contrary view expressed in the case of Bansidhar Onkarmal v. Commissioner of Income-tax [1949] 17 ITR 247 (Orissa) and in the Madras Full Bench case of Chettiars AIR 1930 Mad 808 [FB] is no longer good law. The ratio of Dagas case [1958] 34 ITR 10 (SC) does not seem to have been correctly applied by the Punjab High Court in Ram Gopal Ram Sarup v. Commissioner of Income-tax [1963] 47 ITR 611Now, we proceed to point out the persistently wrong application of the law laid down by this court by the Andhra Pradesh High Court in two earlier decisions followed in the decision under appeal also. They are : Commissioner of Income-tax v. Chakka Narayana [1961] 43 ITR 249 (AP) and Maduri Rajeswar v. Commissioner of Income-tax [1964] 51 ITR 213 (AP) . In Chakka Narayanas case [1961] 43 ITR 249 (AP) the assessee, who was a dealer in cloth and Government securities, encashed Government securities worth about Rs. 20, 000. He went to the Madras railway station for taking the cash to his place of business but lost the money on account of theft committed. The High Court referred to Badridas Dagas case [1958] 34 ITR 10 (SC), but yet distinguished it and preferred to follow the majority decision of the Full Bench of the Madras High Court in Ramaswami Chettiars case AIR 1930 Mad 808 [FB], which, as we have already pointed out, was not approved by this court in Nainital Banks case [1965] 55 ITR 707 (SC). The High Court enunciated the law correctly, but committed in error in applying the same to the facts of that case when it said--See [1961] 43 ITR 249 , 251 (AP) :"It could not be posited that it was absolutely necessary for the assessee to cash the cheque issued and to carry the the money on has person. It is only when it could be posited that it was part of his business to take money with him that it could be said that the loss was incidental to his business."12. We do not approve of this distinction. Similarly, the Andhra Pradesh High Court took a narrow view in Maduri Rajeshwars case [1964] 51 ITR 213 also. There, a stranger came to the assessees shop during business hours and, when the assessee had gone into another room to talk on the telephone, the stranger removed the cash box and disappeared. Chandra Reddy C.J., who had delivered the leading judgment in the earlier case as also in this case, if we may point out with respect, committed the same mistake when he said at page 216"It cannot be postulated that the loss sustained by the assessee resulting from the theft committed by the stranger springs directly from his business or is incidental to the carrying on of it. The only connection that could be established in this case is that at the time theft was committed money was in the business premises and it was during business hours. There is no other connection between the theft of the money and the business of the assessee."13. It is to be remembered that the direct and proximate connection and nexus must be between the business operation and the loss. It goes without saying that a businessman has to keep money either when he gets it as sale proceeds of the stock-in-trade or for disbursement to meet the business expenses or for purchasing stock-in-trade and if he loses such money in the ordinary course of business, the loss is a deductible trading loss. It is immaterial whether the money is a part of the stock-in-trade, such as, of a banking company or a money-lender, or is directly connected with the other business operations. The risk is inherent in the carrying on of the business and is either directly connected with it or incidental to it.14. In the judgment under appeal the High Court, to our mind, has taken the same erroneous view and given the answer against the assessee in spite of the fact that it has noticed a catena of cases of the various High Courts already alluded to by us also. Distinguishing the preponderance of the view expressed in the various decisions in favour of the assessee, the High Court, in our opinion, wrongly chose to stick to its earlier narrow view.15. In the light of the conspectus of the law, as discussed above, let us see whether on the facts found by the Tribunal the loss of Rs. 30, 000 was allowable as a trading loss. The assessee had borrowed a sum of Rs. 50, 000 from some creditor. The money was brought in cash to Rajahmundry by its employee. Such a mode of business operation is very common and wellknown. Out of the said sum of Rs. 50, 000 which was meant for purchase of Government securities a sum of Rs. 30, 000 was lost by theft. It is immaterial whether Government, securities were purchased by the remaining sum of Rs. 20,000 or not. The loss was, however, directly connected with the business operation and was incidental to the carrying on of the business of purchase of Government securities to earn profit. In such a situation it was a part of the trading loss and deductible as such in arriving at the true profits of the assessee
### Response:
1
### Explanation:
But we shall presently show that the Andhra Pradesh High Court persisted and has done so even in the judgment under appeal in taking, rather, a narrow view of the matter and not correctly applying the ratio decidendi of Badridas Dagas case [1958] 34 ITR 10 (SC) and Nainital Banks case [1965] 55 ITR 707 terms no specific provision is to be found in either of the two Acts for allowing deduction of a trading loss of the kind we are concerned with in this case. But it has been uniformly laid down that a trading loss not being a capital loss has got to be taken into account while arriving at the true figures of the assessees income in the commercial sense. The list of permissible deductions in either of the Acts is notIn our Acts there is no such express provision because the corresponding provision used the term "expenditure" and notprinciple applicable in India is more or less the same. If there is a direct and proximate nexus between the business operation and the loss or it is incidental to it, then the loss is deductible, as, without the business operation and doing all that is incidental to it, no profit can be earned. It is in that sense that from a commercial standard such a loss is considered to be a trading one and becomes deductible from the total income, although, in terms neither in the 1922 Act nor in the 1961 Act, there is a provision like section 51(1) of the Australian ActThe contrary view expressed in the case of Bansidhar Onkarmal v. Commissioner of Income-tax [1949] 17 ITR 247 (Orissa) and in the Madras Full Bench case of Chettiars AIR 1930 Mad 808 [FB] is no longer good law. The ratio of Dagas case [1958] 34 ITR 10 (SC) does not seem to have been correctly applied by the Punjab High Court in Ram Gopal Ram Sarup v. Commissioner of Income-tax [1963] 47 ITRNow, we proceed to point out the persistently wrong application of the law laid down by this court by the Andhra Pradesh High Court in two earlier decisions followed in the decision under appealHigh Court referred to Badridas Dagas case [1958] 34 ITR 10 (SC), but yet distinguished it and preferred to follow the majority decision of the Full Bench of the Madras High Court in Ramaswami Chettiars case AIR 1930 Mad 808 [FB], which, as we have already pointed out, was not approved by this court in Nainital Banks case [1965] 55 ITR 707 (SC). The High Court enunciated the law correctly, but committed in error in applying the same to the facts of that case when itcould not be posited that it was absolutely necessary for the assessee to cash the cheque issued and to carry the the money on has person. It is only when it could be posited that it was part of his business to take money with him that it could be said that the loss was incidental to hisdo not approve of this distinction. Similarly, the Andhra Pradesh High Court took a narrow view in Maduri Rajeshwars case [1964] 51 ITR 213 also.is to be remembered that the direct and proximate connection and nexus must be between the business operation and the loss. It goes without saying that a businessman has to keep money either when he gets it as sale proceeds of the stock-in-trade or for disbursement to meet the business expenses or for purchasing stock-in-trade and if he loses such money in the ordinary course of business, the loss is a deductible trading loss. It is immaterial whether the money is a part of the stock-in-trade, such as, of a banking company or a money-lender, or is directly connected with the other business operations. The risk is inherent in the carrying on of the business and is either directly connected with it or incidental tothe judgment under appeal the High Court, to our mind, has taken the same erroneous view and given the answer against the assessee in spite of the fact that it has noticed a catena of cases of the various High Courts already alluded to by us also. Distinguishing the preponderance of the view expressed in the various decisions in favour of the assessee, the High Court, in our opinion, wrongly chose to stick to its earlier narrowassessee had borrowed a sum of Rs. 50, 000 from some creditor. The money was brought in cash to Rajahmundry by its employee. Such a mode of business operation is very common and wellknown. Out of the said sum of Rs. 50, 000 which was meant for purchase of Government securities a sum of Rs. 30, 000 was lost by theft. It is immaterial whether Government, securities were purchased by the remaining sum of Rs. 20,000 or not. The loss was, however, directly connected with the business operation and was incidental to the carrying on of the business of purchase of Government securities to earn profit. In such a situation it was a part of the trading loss and deductible as such in arriving at the true profits of the assessee
|
M/s. Business Link Vs. A.S. Advertising Company & Others | 1. Heard the learned counsel for the parties. 2. Leave is granted. 3. The order of the High Court of Judicature at Allahabad passed in Civil Miscellaneous Writ Petition No. 970 of 2000, dated December 01, 2000 is brought under challenge in this appeal. 4. The appellant and respondents 1 and 2 are competitors in advertisement business. On June 16, 2000, the third respondent, Meerut Nagar Nigam, proposed to auction the hoarding rights for purposes of advertisement, but the proposal was withdrawn. At that time, respondents 1 and 2 were licensees. Thereafter, the Meerut Nagar Nigam appointed a committee to supervise the proposed auction in respect of the hoarding rights. It appears that on July 13, 2000 and July 14, 2000, two advertisements were made inviting tenders for granting of hoarding rights. The advertisements were published in "Meerut Samachar" and "Dainik Hira Times". Twelve persons are said to have responded to the said advertisement out of which four persons fulfilled the pre condition and participated in the auction. The appellant was found to be the highest bidder and in his favour an agreement was executed by the Nagar Nigam for a period of three years on July 27, 2000. Respondents 1 and 2 challenged the award of contract by the Nagar Nigam in favour of the appellant in Writ Petition No. 970 of 2000 before the High Court of Judicature at Allahabad. By the impugned order, the High Court set aside the award of contract and allowed the writ petition. It is against that order that the present appeal is filed.5. Mr. V. R. Reddy, the learned Senior Counsel appearing for the appellant, contends that the basis on which the High Court set aside the contract is untenable and, therefore, the order under challenge needs to be set aside. Mr. Anil Kumar Sangal, the learned counsel appearing for the contesting respondents, on the other hand, submits that there was no publication of advertisement regarding auction of hoarding rights in the said papers and even if there was any such advertisement, those two papers did not have any circulation, therefore, the High Court was right in setting aside the award of contract in favour of the appellant. 6. A perusal of the order under challenge shows that the High Court, on the basis of the contentions raised before it, recorded the following two findings : (1) "We are not satisfied that Meerut Samachar and Dainik Heera Times are well known newspapers having wide circulation."(2) "In our opinion, advertisement in an unknown newspaper stands on the same footing as no advertisement at all since the purpose of the advertisement is that there should be wide publicity otherwise Art.14 of the Constitution will be violated. 7. The real controversy is : whether the said two newspapers had enough circulation so as to justify the publication of the advertisement therein by the Meerut Nagar Nigam.8. It appears that along with the written submissions, the parties have filed certain documents. Our attention is invited to page 32 of the SLP paper book. It is a letter written by the Circulation Officer to the Publisher, Meerut Samachar (Hindi Dainik) with regard to circulation of the said paper. A perusal of the letter shows that the said paper had a circulation of about 39,600 copies per day. With regard to the other newspaper, Hira times (Hindi Dainik), a letter dated May 19, 1997 was filed to show that the said paper had a circulation of about 30,000 copies per day. We may also note that the first mentioned newspaper, Meerut Samachar, has been in circulation for about half a century though the second mentioned newspaper, Hira Times, has been in circulation for about eleven years. Be that as it may, we are unable to find any support for the finding recorded by the High Court that the Meerut Samachar and Dainik Hira Times are not well known newspapers having wide circulation. The High Court did not advert to the material placed before it. The first finding recorded by the High Court might as well adversely affect the newspapers so it ought not to have been recorded without relying upon sufficient material to justify the finding. The material to which we have adverted to above rebuts the finding so recorded. Further, the very fact that twelve persons responded to the advertisement suggests that the said two newspapers had wide circulation in Meerut City. Therefore, that fact militate against the first finding recorded by the High Court. If the first finding goes, the second finding cannot stand on its own.9. Having regard to the fact that the contract was awarded for a period of three years and more than two and half years have already elapsed, it would not be appropriate for this Court to remit the matter to the High Court for fresh disposal.10. Mr. Sangal has also urged that awarding of contract for three years is illegal. This point was not raised in the writ petition nor was it urged at the time of hearing of the writ petition. Inasmuch as it is a pure question of law, we permitted the learned counsel to raise the point before us but, he has not been able to place before us the relevant provisions of the Act and the Rules which prohibit award of contract for three years. We make it clear that we have not pronounced on this point and leave the question open. | 1[ds]8. It appears that along with the written submissions, the parties have filed certain documents. Our attention is invited to page 32 of the SLP paper book. It is a letter written by the Circulation Officer to the Publisher, Meerut Samachar (Hindi Dainik) with regard to circulation of the said paper. A perusal of the letter shows that the said paper had a circulation of about 39,600 copies per day. With regard to the other newspaper, Hira times (Hindi Dainik), a letter dated May 19, 1997 was filed to show that the said paper had a circulation of about 30,000 copies per day. We may also note that the first mentioned newspaper, Meerut Samachar, has been in circulation for about half a century though the second mentioned newspaper, Hira Times, has been in circulation for about eleven years. Be that as it may, we are unable to find any support for the finding recorded by the High Court that the Meerut Samachar and Dainik Hira Times are not well known newspapers having wide circulation. The High Court did not advert to the material placed before it. The first finding recorded by the High Court might as well adversely affect the newspapers so it ought not to have been recorded without relying upon sufficient material to justify the finding. The material to which we have adverted to above rebuts the finding so recorded. Further, the very fact that twelve persons responded to the advertisement suggests that the said two newspapers had wide circulation in Meerut City. Therefore, that fact militate against the first finding recorded by the High Court. If the first finding goes, the second finding cannot stand on its own.9. Having regard to the fact that the contract was awarded for a period of three years and more than two and half years have already elapsed, it would not be appropriate for this Court to remit the matter to the High Court for fresh disposal.10. Mr. Sangal has also urged that awarding of contract for three years is illegal. This point was not raised in the writ petition nor was it urged at the time of hearing of the writ petition. Inasmuch as it is a pure question of law, we permitted the learned counsel to raise the point before us but, he has not been able to place before us the relevant provisions of the Act and the Rules which prohibit award of contract for three years. We make it clear that we have not pronounced on this point and leave the question open. | 1 | 1,011 | 470 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1. Heard the learned counsel for the parties. 2. Leave is granted. 3. The order of the High Court of Judicature at Allahabad passed in Civil Miscellaneous Writ Petition No. 970 of 2000, dated December 01, 2000 is brought under challenge in this appeal. 4. The appellant and respondents 1 and 2 are competitors in advertisement business. On June 16, 2000, the third respondent, Meerut Nagar Nigam, proposed to auction the hoarding rights for purposes of advertisement, but the proposal was withdrawn. At that time, respondents 1 and 2 were licensees. Thereafter, the Meerut Nagar Nigam appointed a committee to supervise the proposed auction in respect of the hoarding rights. It appears that on July 13, 2000 and July 14, 2000, two advertisements were made inviting tenders for granting of hoarding rights. The advertisements were published in "Meerut Samachar" and "Dainik Hira Times". Twelve persons are said to have responded to the said advertisement out of which four persons fulfilled the pre condition and participated in the auction. The appellant was found to be the highest bidder and in his favour an agreement was executed by the Nagar Nigam for a period of three years on July 27, 2000. Respondents 1 and 2 challenged the award of contract by the Nagar Nigam in favour of the appellant in Writ Petition No. 970 of 2000 before the High Court of Judicature at Allahabad. By the impugned order, the High Court set aside the award of contract and allowed the writ petition. It is against that order that the present appeal is filed.5. Mr. V. R. Reddy, the learned Senior Counsel appearing for the appellant, contends that the basis on which the High Court set aside the contract is untenable and, therefore, the order under challenge needs to be set aside. Mr. Anil Kumar Sangal, the learned counsel appearing for the contesting respondents, on the other hand, submits that there was no publication of advertisement regarding auction of hoarding rights in the said papers and even if there was any such advertisement, those two papers did not have any circulation, therefore, the High Court was right in setting aside the award of contract in favour of the appellant. 6. A perusal of the order under challenge shows that the High Court, on the basis of the contentions raised before it, recorded the following two findings : (1) "We are not satisfied that Meerut Samachar and Dainik Heera Times are well known newspapers having wide circulation."(2) "In our opinion, advertisement in an unknown newspaper stands on the same footing as no advertisement at all since the purpose of the advertisement is that there should be wide publicity otherwise Art.14 of the Constitution will be violated. 7. The real controversy is : whether the said two newspapers had enough circulation so as to justify the publication of the advertisement therein by the Meerut Nagar Nigam.8. It appears that along with the written submissions, the parties have filed certain documents. Our attention is invited to page 32 of the SLP paper book. It is a letter written by the Circulation Officer to the Publisher, Meerut Samachar (Hindi Dainik) with regard to circulation of the said paper. A perusal of the letter shows that the said paper had a circulation of about 39,600 copies per day. With regard to the other newspaper, Hira times (Hindi Dainik), a letter dated May 19, 1997 was filed to show that the said paper had a circulation of about 30,000 copies per day. We may also note that the first mentioned newspaper, Meerut Samachar, has been in circulation for about half a century though the second mentioned newspaper, Hira Times, has been in circulation for about eleven years. Be that as it may, we are unable to find any support for the finding recorded by the High Court that the Meerut Samachar and Dainik Hira Times are not well known newspapers having wide circulation. The High Court did not advert to the material placed before it. The first finding recorded by the High Court might as well adversely affect the newspapers so it ought not to have been recorded without relying upon sufficient material to justify the finding. The material to which we have adverted to above rebuts the finding so recorded. Further, the very fact that twelve persons responded to the advertisement suggests that the said two newspapers had wide circulation in Meerut City. Therefore, that fact militate against the first finding recorded by the High Court. If the first finding goes, the second finding cannot stand on its own.9. Having regard to the fact that the contract was awarded for a period of three years and more than two and half years have already elapsed, it would not be appropriate for this Court to remit the matter to the High Court for fresh disposal.10. Mr. Sangal has also urged that awarding of contract for three years is illegal. This point was not raised in the writ petition nor was it urged at the time of hearing of the writ petition. Inasmuch as it is a pure question of law, we permitted the learned counsel to raise the point before us but, he has not been able to place before us the relevant provisions of the Act and the Rules which prohibit award of contract for three years. We make it clear that we have not pronounced on this point and leave the question open.
### Response:
1
### Explanation:
8. It appears that along with the written submissions, the parties have filed certain documents. Our attention is invited to page 32 of the SLP paper book. It is a letter written by the Circulation Officer to the Publisher, Meerut Samachar (Hindi Dainik) with regard to circulation of the said paper. A perusal of the letter shows that the said paper had a circulation of about 39,600 copies per day. With regard to the other newspaper, Hira times (Hindi Dainik), a letter dated May 19, 1997 was filed to show that the said paper had a circulation of about 30,000 copies per day. We may also note that the first mentioned newspaper, Meerut Samachar, has been in circulation for about half a century though the second mentioned newspaper, Hira Times, has been in circulation for about eleven years. Be that as it may, we are unable to find any support for the finding recorded by the High Court that the Meerut Samachar and Dainik Hira Times are not well known newspapers having wide circulation. The High Court did not advert to the material placed before it. The first finding recorded by the High Court might as well adversely affect the newspapers so it ought not to have been recorded without relying upon sufficient material to justify the finding. The material to which we have adverted to above rebuts the finding so recorded. Further, the very fact that twelve persons responded to the advertisement suggests that the said two newspapers had wide circulation in Meerut City. Therefore, that fact militate against the first finding recorded by the High Court. If the first finding goes, the second finding cannot stand on its own.9. Having regard to the fact that the contract was awarded for a period of three years and more than two and half years have already elapsed, it would not be appropriate for this Court to remit the matter to the High Court for fresh disposal.10. Mr. Sangal has also urged that awarding of contract for three years is illegal. This point was not raised in the writ petition nor was it urged at the time of hearing of the writ petition. Inasmuch as it is a pure question of law, we permitted the learned counsel to raise the point before us but, he has not been able to place before us the relevant provisions of the Act and the Rules which prohibit award of contract for three years. We make it clear that we have not pronounced on this point and leave the question open.
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Regional Transport Officer Chittoor Etc Vs. Associated Transport, Madras Private Limited and Others | KRISHNA IYER, J.1. We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed. The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out. There were certain difficulties in the matter of levy of taxation on vehicles plying on inter-state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment. Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub-rules. On 19-6-1957 sub-rules (4) and (5) were added to that rule and sub-rule (5) ran thus:"The proviso to sub-rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub-rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept."2. This sub-rule enabled operators of Motor Vehicles on inter-state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States. It was, however, deleted along with sub-rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras. The ground of invalidity was stated to be that S. 4(1) did not confer on the State Government power to make rules with retrospective effect.3. Thus, the only question which engages our attention is as to whether S. 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules. The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law.4. The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under s. 4(2) does not indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over again. Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances. He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature. The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules. The second ground pressed before us by learned counsel for the appellant is that the rules had to be pl aced on the table of and approved by the legislature. This was sufficient indication, in his submission, for us to infer that retrospectively in the rule-making power was implicit. We cannot agree. The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India, (1) Mr. Justice Khanna speaking for the Bench observed:"The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act. It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying:(i) Laying without further procedure:(ii) Laying subject to negative resolution:(iii) Laying subject to affirmative resolution.The laying referred to in sub-section (3) of Section 40 is of the second category because the above sub-section contemplates that the rules would have effect unless modified or annulled by the House of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government."5. It is, therefore, plain that the authority of the State Government under the delegation does not empower it t o make retrospective rules. | 0[ds]The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under s. 4(2) does not indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over again.The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rulesWe cannot agree. The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India, (1) Mr. Justice Khanna speaking for the Bench observefact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of theis, therefore, plain that the authority of the State Government under the delegation does not empower it t o make retrospective rules. | 0 | 1,093 | 334 | ### 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:
KRISHNA IYER, J.1. We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed. The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out. There were certain difficulties in the matter of levy of taxation on vehicles plying on inter-state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment. Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub-rules. On 19-6-1957 sub-rules (4) and (5) were added to that rule and sub-rule (5) ran thus:"The proviso to sub-rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub-rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept."2. This sub-rule enabled operators of Motor Vehicles on inter-state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States. It was, however, deleted along with sub-rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras. The ground of invalidity was stated to be that S. 4(1) did not confer on the State Government power to make rules with retrospective effect.3. Thus, the only question which engages our attention is as to whether S. 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules. The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law.4. The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under s. 4(2) does not indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over again. Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances. He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature. The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules. The second ground pressed before us by learned counsel for the appellant is that the rules had to be pl aced on the table of and approved by the legislature. This was sufficient indication, in his submission, for us to infer that retrospectively in the rule-making power was implicit. We cannot agree. The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India, (1) Mr. Justice Khanna speaking for the Bench observed:"The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act. It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying:(i) Laying without further procedure:(ii) Laying subject to negative resolution:(iii) Laying subject to affirmative resolution.The laying referred to in sub-section (3) of Section 40 is of the second category because the above sub-section contemplates that the rules would have effect unless modified or annulled by the House of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government."5. It is, therefore, plain that the authority of the State Government under the delegation does not empower it t o make retrospective rules.
### Response:
0
### Explanation:
The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under s. 4(2) does not indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over again.The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rulesWe cannot agree. The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India, (1) Mr. Justice Khanna speaking for the Bench observefact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of theis, therefore, plain that the authority of the State Government under the delegation does not empower it t o make retrospective rules.
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J.K. Woollen Manufacturers Vs. Commissioner Of Income-Tax, U.P | 6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.4. We should make it clear that in this case we are not called upon to decide whether the Income Tax Officer could exercise the power he exercised under Section 10 (2) (x) of the Income Tax Act. The question referred by the Tribunal and answered by the High Court only deals with the claim of deduction of the amount paid to Shri J. P. Vaish under Section 10 (2) (xv) and not under Section 10 (2) (x) of the Act.5. The question as to whether an amount claimed as expenditure was laid out or expended wholly or exclusively for the purpose of business, profession or vocation as required under Section 10 (2) (xv) of the Income Tax Act has to be decided on the facts and in the light of the circumstances of each particular case.But as observed by this Court in Swadeshi Cotton Mills Co. Ltd. v. C. I. T., U. P., (1967) 63 ITR 57 (SC) the final conclusion on the admissibility of an allowance is one of law. In the present case, both the Appellate Assistant Commissioner and the Appellate Tribunal rejected the view of the Income Tax Officer that the rate of commission paid to Shri Vaish was not fixed on account of business considerations but there was some collateral reason. But considering the practice in similar business concerns, the Appellate Assistant Commissioner expressed the view that the rate of 12 1/2 % commission was reasonable and the allowance was therefore restricted to half of the amount claimed by the assessee. The view of the Appellate Assistant Commissioner has been affirmed by the Income Tax Appellate Tribunal. The case of the assessee, however, is that a higher rate of commission of 25% was fixed for Shri J. P. Vaish because the mill was old and dilapidated and it never made profit of even a lakh of rupees in the past and that the rate of 25% was fixed in order to create special interest of the General Manager for accomplishment of the task entrusted to him. In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in this case.As pointed out by this Court in C. I. T. Bombay v. Walchand and Co. Private Ltd., 1967-65 ITR 381 = (AIR 1967 SC 1435 ) in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Income Tax Department. It is, of course, open to the Appellate Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of trader or it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it. But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. It was also pointed out in that case that an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed and the special aptitude of the employee, future prospects of extension by the business and a host of other related circumstances. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that in the circumstances established by the assessee, the entire amount of Rs, 75,465 paid to the General Manager Shri J. P. Vaish was an amount laid out or expended wholly and exclusively for the purpose of the business of the assessee. | 1[ds]During the first 14 months the mills made no profits and Shri J. P. Vaish was paid nothing beyond his salary and car allowance. In the next 12 months he succeeded in securing an order for Lohis from Government and so the mill made some profit and the amount of the Managers commission was proportionately very small in terms of the agreement. The large profit in 1946-47 was made due to new design of civilian rugs Shri Vaish introduced for the first time in the mill after studying public tastes and the qualities and designs prevailing in the market. It was also said that Shri Vaish had a special aptitude to show in his work so far as the marketability of the goods was concerned. After the death of Shri Vaish in July 1947, the firm was converted into a company and the post of the General Manager was abolished and one of the Directors who managed the affairs of the company was given Rs. 18,000 per annum as remuneration and Rs. 6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.4. We should make it clear that in this case we are not called upon to decide whether the Income Tax Officer could exercise the power he exercised under Section 10 (2) (x) of the Income Tax Act. The question referred by the Tribunal and answered by the High Court only deals with the claim of deduction of the amount paid to Shri J. P. Vaish under Section 10 (2) (xv) and not under Section 10 (2) (x) of thethe present case, both the Appellate Assistant Commissioner and the Appellate Tribunal rejected the view of the Income Tax Officer that the rate of commission paid to Shri Vaish was not fixed on account of business considerations but there was some collateral reason. But considering the practice in similar business concerns, the Appellate Assistant Commissioner expressed the view that the rate of 12 1/2 % commission was reasonable and the allowance was therefore restricted to half of the amount claimed by the assessee. The view of the Appellate Assistant Commissioner has been affirmed by the Income Tax Appellate Tribunal. The case of the assessee, however, is that a higher rate of commission of 25% was fixed for Shri J. P. Vaish because the mill was old and dilapidated and it never made profit of even a lakh of rupees in the past and that the rate of 25% was fixed in order to create special interest of the General Manager for accomplishment of the task entrusted to him. In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in thisour opinion, the principle of this decision applies to the present case and it must accordingly be held that in the circumstances established by the assessee, the entire amount of Rs, 75,465 paid to the General Manager Shri J. P. Vaish was an amount laid out or expended wholly and exclusively for the purpose of the business of the assessee. | 1 | 2,137 | 925 | ### 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:
6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.4. We should make it clear that in this case we are not called upon to decide whether the Income Tax Officer could exercise the power he exercised under Section 10 (2) (x) of the Income Tax Act. The question referred by the Tribunal and answered by the High Court only deals with the claim of deduction of the amount paid to Shri J. P. Vaish under Section 10 (2) (xv) and not under Section 10 (2) (x) of the Act.5. The question as to whether an amount claimed as expenditure was laid out or expended wholly or exclusively for the purpose of business, profession or vocation as required under Section 10 (2) (xv) of the Income Tax Act has to be decided on the facts and in the light of the circumstances of each particular case.But as observed by this Court in Swadeshi Cotton Mills Co. Ltd. v. C. I. T., U. P., (1967) 63 ITR 57 (SC) the final conclusion on the admissibility of an allowance is one of law. In the present case, both the Appellate Assistant Commissioner and the Appellate Tribunal rejected the view of the Income Tax Officer that the rate of commission paid to Shri Vaish was not fixed on account of business considerations but there was some collateral reason. But considering the practice in similar business concerns, the Appellate Assistant Commissioner expressed the view that the rate of 12 1/2 % commission was reasonable and the allowance was therefore restricted to half of the amount claimed by the assessee. The view of the Appellate Assistant Commissioner has been affirmed by the Income Tax Appellate Tribunal. The case of the assessee, however, is that a higher rate of commission of 25% was fixed for Shri J. P. Vaish because the mill was old and dilapidated and it never made profit of even a lakh of rupees in the past and that the rate of 25% was fixed in order to create special interest of the General Manager for accomplishment of the task entrusted to him. In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in this case.As pointed out by this Court in C. I. T. Bombay v. Walchand and Co. Private Ltd., 1967-65 ITR 381 = (AIR 1967 SC 1435 ) in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Income Tax Department. It is, of course, open to the Appellate Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of trader or it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it. But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. It was also pointed out in that case that an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed and the special aptitude of the employee, future prospects of extension by the business and a host of other related circumstances. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that in the circumstances established by the assessee, the entire amount of Rs, 75,465 paid to the General Manager Shri J. P. Vaish was an amount laid out or expended wholly and exclusively for the purpose of the business of the assessee.
### Response:
1
### Explanation:
During the first 14 months the mills made no profits and Shri J. P. Vaish was paid nothing beyond his salary and car allowance. In the next 12 months he succeeded in securing an order for Lohis from Government and so the mill made some profit and the amount of the Managers commission was proportionately very small in terms of the agreement. The large profit in 1946-47 was made due to new design of civilian rugs Shri Vaish introduced for the first time in the mill after studying public tastes and the qualities and designs prevailing in the market. It was also said that Shri Vaish had a special aptitude to show in his work so far as the marketability of the goods was concerned. After the death of Shri Vaish in July 1947, the firm was converted into a company and the post of the General Manager was abolished and one of the Directors who managed the affairs of the company was given Rs. 18,000 per annum as remuneration and Rs. 6,000 per annum as allowance for the accounting year 1947-48. The Appellate Tribunal took the view that the post of General Manager carried the responsibility equal to that of the Director who was given the charge of the conduct of business after the death of Shri Vaish, the General Manager. This post carried a remuneration of Rs. 18,000 plus Rs. 6,000 i. e., a total remuneration of Rs. 24,000 per annum and therefore the commission paid to Shri Vaish in excess of this amount was not really paid wholly for the purpose of carrying on business. But it was pointed out on behalf of the assessee that Shri J. P. Vaish had taken over the mill at a time when it was old and dilapidated and in the first 14 months the mill made no profit and Shri Vaish was paid nothing beyond the salary and car allowance. In the succeeding year he was able to secure an order from the Government on account of which the mill made some profit. Shri Vaish introduced for the first time a new design of civilian rugs in the year 1946-47 during which a large profit was made. It was therefore contended on behalf of the assessee that the position of Shri Vaish who worked in the mill at the initial stage and of the Managing Director was not comparable and the Appellate Tribunal was wrong in taking this circumstance into consideration. Counsel for the assessee also pointed out that Shri Vaish was educated in a Public School of Dehradun and thereafter studied at the Benaras College and at the Engineering College of the Benaras Hindu University for Electrical and Mechanical Engineering and then joined the Commerce College at Delhi. After that he had training in the Aluminum Corporation of India Ltd., Lakshmi Rattan Cotton Mills Ltd. and the Road Products Ltd., Rampur. In view of the circumstances of the case it was urged on behalf of the assessee that the entire amount of Rs. 75,465 paid to Shri Vaish was an amount laid out wholly and exclusively for the purpose of the business of the assessee within the meaning of Section 10 (2) (xv) of the Income-tax Act, 1922.4. We should make it clear that in this case we are not called upon to decide whether the Income Tax Officer could exercise the power he exercised under Section 10 (2) (x) of the Income Tax Act. The question referred by the Tribunal and answered by the High Court only deals with the claim of deduction of the amount paid to Shri J. P. Vaish under Section 10 (2) (xv) and not under Section 10 (2) (x) of thethe present case, both the Appellate Assistant Commissioner and the Appellate Tribunal rejected the view of the Income Tax Officer that the rate of commission paid to Shri Vaish was not fixed on account of business considerations but there was some collateral reason. But considering the practice in similar business concerns, the Appellate Assistant Commissioner expressed the view that the rate of 12 1/2 % commission was reasonable and the allowance was therefore restricted to half of the amount claimed by the assessee. The view of the Appellate Assistant Commissioner has been affirmed by the Income Tax Appellate Tribunal. The case of the assessee, however, is that a higher rate of commission of 25% was fixed for Shri J. P. Vaish because the mill was old and dilapidated and it never made profit of even a lakh of rupees in the past and that the rate of 25% was fixed in order to create special interest of the General Manager for accomplishment of the task entrusted to him. In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in thisour opinion, the principle of this decision applies to the present case and it must accordingly be held that in the circumstances established by the assessee, the entire amount of Rs, 75,465 paid to the General Manager Shri J. P. Vaish was an amount laid out or expended wholly and exclusively for the purpose of the business of the assessee.
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Commissioner of Income Tax Vs. Rekha Bai | 1. We have heard the learned Counsel for the parties and perused the impugned order dated December 14, 20051, passed by the High Court of Judicature at Madras. The High Court has dismissed the appeal filed Under Section 260A of the Income-tax Act, 1961 on the ground that no substantial question of law arises. Learned Counsel appearing for the Appellant submitted that the full value of the pronotes seized at the time of survey should have been taken into account and there was no question of taking only 30 per cent of the face value as the amount representing is disclosed income.2. From the order of the first appellate authority, we find that the Assessing Officer had examined some of the borrowers mentioned in the pro-notes and they have categorically stated that the amount advanced is 50 per cent, or less which explanation has been accepted by the first appellate authority and confirmed by the Tribunal.3. The Department has failed to bring on record any material to the contrary except the seized documents which, in our considered opinion, could not absolve the Department or give any right to negate the view taken by the first appellate authority and the Tribunal. So far as the income divided among the family members of the Respondent-Assessee is concerned we find that all of them were carrying on same business from the same premises. Therefore, it is but natural that if any concealed income has been found at the time of search and survey, it has to be distributed among all the family members who were carrying on business. | 0[ds]2. From the order of the first appellate authority, we find that the Assessing Officer had examined some of the borrowers mentioned in the pro-notes and they have categorically stated that the amount advanced is 50 per cent, or less which explanation has been accepted by the first appellate authority and confirmed by the Tribunal3. The Department has failed to bring on record any material to the contrary except the seized documents which, in our considered opinion, could not absolve the Department or give any right to negate the view taken by the first appellate authority and the Tribunal. So far as the income divided among the family members of the Respondent-Assessee is concerned we find that all of them were carrying on same business from the same premises. Therefore, it is but natural that if any concealed income has been found at the time of search and survey, it has to be distributed among all the family members who were carrying on business. | 0 | 282 | 179 | ### Instruction:
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1. We have heard the learned Counsel for the parties and perused the impugned order dated December 14, 20051, passed by the High Court of Judicature at Madras. The High Court has dismissed the appeal filed Under Section 260A of the Income-tax Act, 1961 on the ground that no substantial question of law arises. Learned Counsel appearing for the Appellant submitted that the full value of the pronotes seized at the time of survey should have been taken into account and there was no question of taking only 30 per cent of the face value as the amount representing is disclosed income.2. From the order of the first appellate authority, we find that the Assessing Officer had examined some of the borrowers mentioned in the pro-notes and they have categorically stated that the amount advanced is 50 per cent, or less which explanation has been accepted by the first appellate authority and confirmed by the Tribunal.3. The Department has failed to bring on record any material to the contrary except the seized documents which, in our considered opinion, could not absolve the Department or give any right to negate the view taken by the first appellate authority and the Tribunal. So far as the income divided among the family members of the Respondent-Assessee is concerned we find that all of them were carrying on same business from the same premises. Therefore, it is but natural that if any concealed income has been found at the time of search and survey, it has to be distributed among all the family members who were carrying on business.
### Response:
0
### Explanation:
2. From the order of the first appellate authority, we find that the Assessing Officer had examined some of the borrowers mentioned in the pro-notes and they have categorically stated that the amount advanced is 50 per cent, or less which explanation has been accepted by the first appellate authority and confirmed by the Tribunal3. The Department has failed to bring on record any material to the contrary except the seized documents which, in our considered opinion, could not absolve the Department or give any right to negate the view taken by the first appellate authority and the Tribunal. So far as the income divided among the family members of the Respondent-Assessee is concerned we find that all of them were carrying on same business from the same premises. Therefore, it is but natural that if any concealed income has been found at the time of search and survey, it has to be distributed among all the family members who were carrying on business.
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Idea Mobile Communication Ltd Vs. C.C.E.& C.,Cochin | service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the "aspects" doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Assn. of India v. Union of India: (SCC pp. 652-53, paras 30-31) " `... subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power.* * *There might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects." 14. In paragraph 88 this Court observed that no one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction but that would not in any manner allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods. It was also held that for the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. Consequently, the Supreme Court after allowing the appeals filed by Bharat Sanchar Nigam Ltd and Escotel remanded the matter to the Sales Tax Authorities concerned for determination of the issue relating to SIM Cards in the light of the observations contained in that judgment. 15. As against the order passed by the adjudicating authority, the appellant assessee took up the matter in appeal before the Commissioner of Central Excise & Customs, Cochin. The appellate authority upheld the findings of the adjudicating authority. The assessee took up the matter before the CESTAT, Bangalore. The CESTAT vide its order dated 25.05.2006 held that the levy of service tax as demanded is not sustainable for the reason that the assessee had already paid the sales tax and therefore it follows that service tax is not leviable on the item on which sales tax has been collected. 16. Being aggrieved by the aforesaid order dated 25.05.2006, an appeal was filed before the Kerala High Court by the department, which was disposed of by the impugned order dated 04.09.2009. 17. The High Court has given cogent reasons for coming to the conclusion that service tax is payable inasmuch as SIM Card has no intrinsic sale value and it is supplied to the customers for providing mobile service to them. It should also be noted at this stage that after the remand of the matter by the Supreme Court to the Sales Tax authorities the assessing authority under the Sales Tax Act dropped the proceedings after conceding the position that SIM Card has no intrinsic sale value and it is supplied to the customers for providing telephone service to the customers. This aforesaid stand of the Sales Tax authority is practically the end of the matter and signifies the conclusion.18. The sales tax authorities have themselves conceded the position before the High Court that no assessment of sales tax would be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law as may be applicable. But we cannot accept a position in law that even if tax is wrongly remitted that would absolve the parties from paying the service tax if the same is otherwise found payable and a liability accrues on the assessee. The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card.19. There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction. 20. That being the position, | 0[ds]47. Conclusions:(a) The transaction of sale of SIM Card is without doubt exigible to sales tax under the KGST Act. The activation charges paid are in the nature of deferred payment of consideration for the original sale, or in the nature of value addition, and, therefore, also amount to parts of the sale and become exigible to sales tax under the KGST Act.(b) Both the selling of the SIM Card and the process of activation are "services" provided by the mobile cellular telephone companies to the subscriber, and squarely fall within the definition of "taxable service" as defined in section 65(72)(b) of the Finance Act. They are also exigible to service tax on the value of "taxable service" as defined in Section 67 of the Finance Act.The High Court has given cogent reasons for coming to the conclusion that service tax is payable inasmuch as SIM Card has no intrinsic sale value and it is supplied to the customers for providing mobile service to them. It should also be noted at this stage that after the remand of the matter by the Supreme Court to the Sales Tax authorities the assessing authority under the Sales Tax Act dropped the proceedings after conceding the position that SIM Card has no intrinsic sale value and it is supplied to the customers for providing telephone service to the customers. This aforesaid stand of the Sales Tax authority is practically the end of the matter and signifies the conclusion.18. The sales tax authorities have themselves conceded the position before the High Court that no assessment of sales tax would be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law as may be applicable. But we cannot accept a position in law that even if tax is wrongly remitted that would absolve the parties from paying the service tax if the same is otherwise found payable and a liability accrues on the assessee. The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card.19. There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction. | 0 | 3,116 | 722 | ### Instruction:
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service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the "aspects" doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Assn. of India v. Union of India: (SCC pp. 652-53, paras 30-31) " `... subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power.* * *There might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects." 14. In paragraph 88 this Court observed that no one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction but that would not in any manner allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods. It was also held that for the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. Consequently, the Supreme Court after allowing the appeals filed by Bharat Sanchar Nigam Ltd and Escotel remanded the matter to the Sales Tax Authorities concerned for determination of the issue relating to SIM Cards in the light of the observations contained in that judgment. 15. As against the order passed by the adjudicating authority, the appellant assessee took up the matter in appeal before the Commissioner of Central Excise & Customs, Cochin. The appellate authority upheld the findings of the adjudicating authority. The assessee took up the matter before the CESTAT, Bangalore. The CESTAT vide its order dated 25.05.2006 held that the levy of service tax as demanded is not sustainable for the reason that the assessee had already paid the sales tax and therefore it follows that service tax is not leviable on the item on which sales tax has been collected. 16. Being aggrieved by the aforesaid order dated 25.05.2006, an appeal was filed before the Kerala High Court by the department, which was disposed of by the impugned order dated 04.09.2009. 17. The High Court has given cogent reasons for coming to the conclusion that service tax is payable inasmuch as SIM Card has no intrinsic sale value and it is supplied to the customers for providing mobile service to them. It should also be noted at this stage that after the remand of the matter by the Supreme Court to the Sales Tax authorities the assessing authority under the Sales Tax Act dropped the proceedings after conceding the position that SIM Card has no intrinsic sale value and it is supplied to the customers for providing telephone service to the customers. This aforesaid stand of the Sales Tax authority is practically the end of the matter and signifies the conclusion.18. The sales tax authorities have themselves conceded the position before the High Court that no assessment of sales tax would be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law as may be applicable. But we cannot accept a position in law that even if tax is wrongly remitted that would absolve the parties from paying the service tax if the same is otherwise found payable and a liability accrues on the assessee. The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card.19. There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction. 20. That being the position,
### Response:
0
### Explanation:
47. Conclusions:(a) The transaction of sale of SIM Card is without doubt exigible to sales tax under the KGST Act. The activation charges paid are in the nature of deferred payment of consideration for the original sale, or in the nature of value addition, and, therefore, also amount to parts of the sale and become exigible to sales tax under the KGST Act.(b) Both the selling of the SIM Card and the process of activation are "services" provided by the mobile cellular telephone companies to the subscriber, and squarely fall within the definition of "taxable service" as defined in section 65(72)(b) of the Finance Act. They are also exigible to service tax on the value of "taxable service" as defined in Section 67 of the Finance Act.The High Court has given cogent reasons for coming to the conclusion that service tax is payable inasmuch as SIM Card has no intrinsic sale value and it is supplied to the customers for providing mobile service to them. It should also be noted at this stage that after the remand of the matter by the Supreme Court to the Sales Tax authorities the assessing authority under the Sales Tax Act dropped the proceedings after conceding the position that SIM Card has no intrinsic sale value and it is supplied to the customers for providing telephone service to the customers. This aforesaid stand of the Sales Tax authority is practically the end of the matter and signifies the conclusion.18. The sales tax authorities have themselves conceded the position before the High Court that no assessment of sales tax would be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law as may be applicable. But we cannot accept a position in law that even if tax is wrongly remitted that would absolve the parties from paying the service tax if the same is otherwise found payable and a liability accrues on the assessee. The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card.19. There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation. The appellant also accepts the position that activation is a taxable service. The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction.
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Kapore Chand Vs. Kadar Unnisa Begum And Others | exercise of the power of divorce. The Muslim concept of dower has no reference to the price that under some systems of law was paid to the father of the bride when she was given in marriage. On the other hand, it is considered a debt with consideration (for the submission of her person by the wife). The result of the above discussion is that dower is purely in the nature of a marriage settlement and is for consideration. It is a claim arising out of contract by the husband and as such has preference to bequests and inheritance, but on no principle of Mohammadan law it can have priority over other contractual debts. In our view, therefore, a dower debt cannot be given any priority over other debts on any equitable consideration or on the ground that there is something inherent in its very nature which entitles it to priority. 6. It is now convenient to examine the decided cases on this subject. In -Ameer Ammal v. Sankaranarayanan Chetty, 25 Mad 658 (A), a Bench of the Madras High Court held that a claim for unpaid dower constitutes a debt payable pari passu with the demands of other creditors and is not a preferential charge on the estate. In - Mt. Maina Bibi v. Chaudhri Vakil Ahmad, AIR 1925 PC 63 (B), it was held that where the widow is not in the position of a secured creditor and is otherwise in possession of the husbands estate with the consent of the heirs, she is entitled to retain possession of it until her dower debt is satisfied. Their Lordships observed that it was necessary to say whether the right of the widow in possession is a lien in the strict sense of the term. Whatever the right may be called, it appears to be founded on the power of a widow as a creditor for her dower to hold the property of her husband of which she has lawfully, and without force or fraud, obtained possession until her debt is satisfied. This decision does not place the widow on a higher footing than any other creditor. As against the heir all creditors are to be paid in priority before the estate can be distributed. In - Meer Meher Ally v. Mst. Amanee, 11 WR 212 (C), it was held that the lien of the widow over the property in her possession is not a lien in the ordinary legal sense of the term and that a claim for dower is in the same position as that of any other ordinary creditor and ranks pari passu with them and like other debts has to be paid before the heirs are entitled to take anything. In -Mt. Maina Bibi v. Wasi Ahmad AIR 1919 All 128 (D), it was held that she has no right of possession against the creditors, not being a secured creditor herself. At page 133, the following observation occurs : She cannot set up any such right of possession against creditors claiming to have the debts owing to them from the husband satisfied out of the estate. She is not a secured creditor : her claim for her dower debt ranks equally with the claims of other creditors of her husband. 7. In - Hamira Bibi v. Zubaida Bibi, AIR 1916 PC 46 (E), it was observed that dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor. Qua the heirs she has a creditors lien. In -Mt. Imtiaz Begam v. Abdul Karim Khan, AIR 1930 All 881 (F). the same view was expressed. In para 295 Mr. Mulla in his book on Muhammadan Law has adopted the view that dower ranks as a debt and that the widow is entitled along with other creditors to have it satisfied out of the estate and that her right is not greater than that of any other creditor. The learned counsel for the respondent relied on the decision in - Mt. Kulsum Bibi v. Shiam Sunder Lal, AIR 1936 All 600 (G), in which it was held that a widow in possession of her husbands estate is entitled as against the other heirs of her husband and in against the creditors to retain possession until her dower is satisfied. The same view had been taken earlier in Mt. Ghafooran v. Ram Chandra, AIR 1934 All 168 (H), by a single Judge. It was said that her possession could not be disturbed till her dower debt was satisfied. In - Mohamed Turabuddin v. Yasin Begum, 17 Deccan LR 224 (1), a Bench of the Hyderabad High Court held that the claim of a widow for dower was in the nature of a secured debt. There was no other creditor in that case which arose between the heirs and the widow. However, in - Wahidunnissa Begum v. Yasin Begum, 32 Deccan LR 421 (J), it was pointed out that the claim of the widow nor dower does not create any interest or charge on the property and that the position of a widow is not only that of a creditor where her dower remains unpaid but also of an heir. 8. The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus of authority is against the proposition that a widow as an unsecured creditor has any priority over the other unsecured creditors of her husband. In our opinion, the above mentioned two Allahabad decisions do lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). There is nothing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors. 9. | 1[ds]The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus of authority is against the proposition that a widow as an unsecured creditor has any priority over the other unsecured creditors of her husband. In our opinion, the above mentioned two Allahabad decisions do lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). There is nothing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors | 1 | 2,416 | 116 | ### Instruction:
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exercise of the power of divorce. The Muslim concept of dower has no reference to the price that under some systems of law was paid to the father of the bride when she was given in marriage. On the other hand, it is considered a debt with consideration (for the submission of her person by the wife). The result of the above discussion is that dower is purely in the nature of a marriage settlement and is for consideration. It is a claim arising out of contract by the husband and as such has preference to bequests and inheritance, but on no principle of Mohammadan law it can have priority over other contractual debts. In our view, therefore, a dower debt cannot be given any priority over other debts on any equitable consideration or on the ground that there is something inherent in its very nature which entitles it to priority. 6. It is now convenient to examine the decided cases on this subject. In -Ameer Ammal v. Sankaranarayanan Chetty, 25 Mad 658 (A), a Bench of the Madras High Court held that a claim for unpaid dower constitutes a debt payable pari passu with the demands of other creditors and is not a preferential charge on the estate. In - Mt. Maina Bibi v. Chaudhri Vakil Ahmad, AIR 1925 PC 63 (B), it was held that where the widow is not in the position of a secured creditor and is otherwise in possession of the husbands estate with the consent of the heirs, she is entitled to retain possession of it until her dower debt is satisfied. Their Lordships observed that it was necessary to say whether the right of the widow in possession is a lien in the strict sense of the term. Whatever the right may be called, it appears to be founded on the power of a widow as a creditor for her dower to hold the property of her husband of which she has lawfully, and without force or fraud, obtained possession until her debt is satisfied. This decision does not place the widow on a higher footing than any other creditor. As against the heir all creditors are to be paid in priority before the estate can be distributed. In - Meer Meher Ally v. Mst. Amanee, 11 WR 212 (C), it was held that the lien of the widow over the property in her possession is not a lien in the ordinary legal sense of the term and that a claim for dower is in the same position as that of any other ordinary creditor and ranks pari passu with them and like other debts has to be paid before the heirs are entitled to take anything. In -Mt. Maina Bibi v. Wasi Ahmad AIR 1919 All 128 (D), it was held that she has no right of possession against the creditors, not being a secured creditor herself. At page 133, the following observation occurs : She cannot set up any such right of possession against creditors claiming to have the debts owing to them from the husband satisfied out of the estate. She is not a secured creditor : her claim for her dower debt ranks equally with the claims of other creditors of her husband. 7. In - Hamira Bibi v. Zubaida Bibi, AIR 1916 PC 46 (E), it was observed that dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor. Qua the heirs she has a creditors lien. In -Mt. Imtiaz Begam v. Abdul Karim Khan, AIR 1930 All 881 (F). the same view was expressed. In para 295 Mr. Mulla in his book on Muhammadan Law has adopted the view that dower ranks as a debt and that the widow is entitled along with other creditors to have it satisfied out of the estate and that her right is not greater than that of any other creditor. The learned counsel for the respondent relied on the decision in - Mt. Kulsum Bibi v. Shiam Sunder Lal, AIR 1936 All 600 (G), in which it was held that a widow in possession of her husbands estate is entitled as against the other heirs of her husband and in against the creditors to retain possession until her dower is satisfied. The same view had been taken earlier in Mt. Ghafooran v. Ram Chandra, AIR 1934 All 168 (H), by a single Judge. It was said that her possession could not be disturbed till her dower debt was satisfied. In - Mohamed Turabuddin v. Yasin Begum, 17 Deccan LR 224 (1), a Bench of the Hyderabad High Court held that the claim of a widow for dower was in the nature of a secured debt. There was no other creditor in that case which arose between the heirs and the widow. However, in - Wahidunnissa Begum v. Yasin Begum, 32 Deccan LR 421 (J), it was pointed out that the claim of the widow nor dower does not create any interest or charge on the property and that the position of a widow is not only that of a creditor where her dower remains unpaid but also of an heir. 8. The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus of authority is against the proposition that a widow as an unsecured creditor has any priority over the other unsecured creditors of her husband. In our opinion, the above mentioned two Allahabad decisions do lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). There is nothing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors. 9.
### Response:
1
### Explanation:
The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court the consensus of authority is against the proposition that a widow as an unsecured creditor has any priority over the other unsecured creditors of her husband. In our opinion, the above mentioned two Allahabad decisions do lay down the law correctly on this point and the rule has been correctly laid down in - 25 Mad 658 (A). There is nothing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors
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Kalim Khan & Others Vs. Fimidabee & Others | the act. 25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said score. 26. Having said that, we have to presently analyse on whom the liability should be mulcted. As is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policy. The rival contention in this behalf has been considered by the tribunal in the following words:- 29. The Respondent No.2 has admitted the fact that Insurance Policy of offending tractor was for the agricultural purpose. The insurance of offending tractor was taken at Jaipur, Rajasthan. It was brought for commercial activity namely the blasting work. The blasting machine was found on the tractor. No permission from Competent Authority was taken for the blasting work and therefore, the Respondent No.2 has used tractor for commercial purpose and consequently there was fundamental breach of the Insurance Policy. The Respondent No.2 committed fundamental breach of the Insurance Policy allowing the use of tractor for commercial purpose and therefore, the decision cited supra is inapplicable. And again in paragraphs 35, 36 and 37, the tribunal has observed: 35. The Respondent No. 1 has come with the case that digging work with blasting operation was given with sole responsibility of Respondent Nos. 2 and 3. The Respondent Nos. 2 and 3 have come with the case that blasting work for digging of well was taken at the risk of Respondent No.1 to 3 have not produced documentary evidence showing that digging work of well with blasting operation was being done on the sole responsibility either of Respondent No.1 or of the respondent Nos. 2 and 3. In absence of such evidence, the Respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. 36. It was submitted on behalf of Respondent No.4 that Respondent No.2 committed fundamental breach of Instruction Policy by using the tractor for commercial purpose and therefore, Respondent No.4 cannot be directed to make the payment to petitioners and recover the same from the owner of offending tractor. xxx xxx xxx 37. The Respondent No.2 allowed the use of offending tractor for doing the blasting work and therefore there was fundamental breach of the Insurance Policy. Since there was fundamental breach of the Insurance Policy for using the offending tractor for commercial purpose and consequently, Respondent No. 4 is not liable to pay the compensation and directed to pay the same and recover the same from Respondent No. 2 owner of offending tractor. xxx xxx xxx The High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act. 27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal. | 1[ds]6. As is noticeable, the High Court has recorded a finding that the battery was practically detached from the vehicle. The correctness of this finding is required to be determined first. It is necessary to note here that the tribunal has treated the accident to be a vehicular accident and entertained the claim. As we find, the High Court has not analyzed any evidence brought on record to come to the conclusion that the battery of the vehicle was practically detached from the vehicle and was not a part of the vehicle. On the contrary, the Tribunal had noticed that the panchnama of the tractor, Ex-42, clearly showed that the tractor was in the field and the blasting machine was found on tractor with wrapped gas pipe and an explosive battery found on the tractor with the wooden cover. It has referred to Ex-41 and other oral evidence to record the finding that the blasting machine was kept on the tractor driven by the driver engaged by the owner and the tractor was used for digging of the well with the blasting machine. The insurer, as is evident, had only raised a singular plea with regard to use of the tractor, namely, `commercial purpose and on that foundation, it had advanced the stance that there had been fundamental breach of the insurance policy. Keeping in view the evidence on record, we agree with the view expressed by the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposesWe may note with profit that Section 92-A(1) used the words an accident arising out of the use of a motor vehicle and Section 165 of the Act that has been reproduced hereinabove also uses the words arising out of the use of motor vehicles. Thus, there has been no change in this part of the provisionThe aforesaid analysis throws immense light to understand the concept of related events and causal relation. They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court24. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The word `use as has been explained by the authorities of this Court need not have an intimate and direct nexus with the accident. The Court has to bear in mind that the phraseology used by the legislature is accident arising out of use of the motor vehicle. The scope has been enlarged by such use of the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said scoreAs is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policyThe High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal. | 1 | 6,625 | 1,268 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the act. 25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said score. 26. Having said that, we have to presently analyse on whom the liability should be mulcted. As is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policy. The rival contention in this behalf has been considered by the tribunal in the following words:- 29. The Respondent No.2 has admitted the fact that Insurance Policy of offending tractor was for the agricultural purpose. The insurance of offending tractor was taken at Jaipur, Rajasthan. It was brought for commercial activity namely the blasting work. The blasting machine was found on the tractor. No permission from Competent Authority was taken for the blasting work and therefore, the Respondent No.2 has used tractor for commercial purpose and consequently there was fundamental breach of the Insurance Policy. The Respondent No.2 committed fundamental breach of the Insurance Policy allowing the use of tractor for commercial purpose and therefore, the decision cited supra is inapplicable. And again in paragraphs 35, 36 and 37, the tribunal has observed: 35. The Respondent No. 1 has come with the case that digging work with blasting operation was given with sole responsibility of Respondent Nos. 2 and 3. The Respondent Nos. 2 and 3 have come with the case that blasting work for digging of well was taken at the risk of Respondent No.1 to 3 have not produced documentary evidence showing that digging work of well with blasting operation was being done on the sole responsibility either of Respondent No.1 or of the respondent Nos. 2 and 3. In absence of such evidence, the Respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. 36. It was submitted on behalf of Respondent No.4 that Respondent No.2 committed fundamental breach of Instruction Policy by using the tractor for commercial purpose and therefore, Respondent No.4 cannot be directed to make the payment to petitioners and recover the same from the owner of offending tractor. xxx xxx xxx 37. The Respondent No.2 allowed the use of offending tractor for doing the blasting work and therefore there was fundamental breach of the Insurance Policy. Since there was fundamental breach of the Insurance Policy for using the offending tractor for commercial purpose and consequently, Respondent No. 4 is not liable to pay the compensation and directed to pay the same and recover the same from Respondent No. 2 owner of offending tractor. xxx xxx xxx The High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act. 27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.
### Response:
1
### Explanation:
tractor was used for digging of the well with the blasting machine. The insurer, as is evident, had only raised a singular plea with regard to use of the tractor, namely, `commercial purpose and on that foundation, it had advanced the stance that there had been fundamental breach of the insurance policy. Keeping in view the evidence on record, we agree with the view expressed by the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposesWe may note with profit that Section 92-A(1) used the words an accident arising out of the use of a motor vehicle and Section 165 of the Act that has been reproduced hereinabove also uses the words arising out of the use of motor vehicles. Thus, there has been no change in this part of the provisionThe aforesaid analysis throws immense light to understand the concept of related events and causal relation. They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court24. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The word `use as has been explained by the authorities of this Court need not have an intimate and direct nexus with the accident. The Court has to bear in mind that the phraseology used by the legislature is accident arising out of use of the motor vehicle. The scope has been enlarged by such use of the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said scoreAs is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policyThe High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.
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The Commissioner Of Sales Tax, U.P Vs. M/S. Bhagwan Industries (P) Ltd. Lucknow | fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment, that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notice under Section 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in Section 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. To put it differently, it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings under Section 34 of the Act is open to challenge in a Court of law."Reliance was placed in the above context upon an earlier decision of this Court in the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ). The above observations regarding the import of the words "reason to believe" though made in the context of Section 34 of the Indian Income Tax Act, 1922 have, in our opinion, equal bearing on the construction of those words in Section 21 of the U. P. Sales Tax Act.12. In the light of the view we have taken of the import of the words "reason to believe", we have no doubt that the assessing authority in the present case had valid grounds for initiating proceedings under Section 21 of the Act against the respondent. It would appear from the memorandum dated March 13, 1962 sent by the assessing authority that for the assessment year 1955-56 the sales of atta, maida and sooji of the respondent amounted to over rupees fiftyeight lakhs. Account books of the respondent also showed that during the year 1958-59 the turnover of the respondent for sale of atta, maida and sooji amounted to over rupees seventyfive lakhs. The assessing authority had also material with it to show that the quota of wheat for the respondent had been fixed in August 1958 on the basis of the average of grinding done in the past three years. There was also the additional fact that the respondent had in spite of repeated notices not produced its account books for the assessment year 1957-58. These facts, in our opinion, were germane to the formation of the belief of the assessing authority that part of the turnover of the respondent had escaped assessment to tax. It cannot be said that the above belief was not formed in good faith or was mere pretence for initiating action under Section 21 of the Act. The assessing authority in the circumstances, in our opinion, acted within the ambit of its powers in initiating proceedings under Section 21 of the Act.13. We are unable to accede to the contention of Mr. Karkhanis that as the assessment sought to be reopened was ex parte assessment under Rule 41 (5) of the Uttar Pradesh Sales Tax Rules, no proceedings in respect of that assessment can be initiated under Section 21 of the Act. There is nothing in that section to restrict its operation to assessments other than those which have been made ex parte under Rule 41 (5). The language of the section makes it plain that the assessing authority can take action if such authority has reason to believe that the whole or part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year. To accede to the contention of Mr. Karkhanis would be tantamount to affording protection, so far as the operation of Section 21 is concerned, to dealers who avoid to put in appearance and produce their account books before the assessing authority. Such a construction is not only not warranted by the language of the section, it is manifestly unreasonable inasmuch as it puts a premium on contumacy.14. Mr. Karkhanis has also assailed the answer of the High Court to question No. (II) and has contended that the notice dated September 13, 1961 and the memorandum dated March 13, 1962 should be construed as notices under Section 21 of the Act. As the re-assessment was not completed within one year of the service of those notices, the re-assessment, according to the learned counsel, should be held to be barred by limitation. There is, in our opinion, no force in this contention. We agree with the High Court that the above notice and the memorandum were of a preliminary nature and did not constitute notices under Section 21 of the Act. All that was stated in the said notice and the memorandum was to call upon the respondent to produce account books. Threat was also held out that in case of non-compliance by the respondent proceedings would be taken under Section 21 of the Act. The above notice and the memorandum could not consequently be construed as notices under Section 21 of the Act.It was only on March 24, 1962 that notice under Section 21 of the Act was given to the respondent and the same was served on March 26, 1962. The assessment under Section 21 was made on March 19, 1963 which was admittedly within one year of the date of the service of the notice under Section 21 of the Act.15 | 1[ds]12. In the light of the view we have taken of the import of the words "reason to believe", we have no doubt that the assessing authority in the present case had valid grounds for initiating proceedings under Section 21 of the Act against the respondent. It would appear from the memorandum dated March 13, 1962 sent by the assessing authority that for the assessment year 1955-56 the sales of atta, maida and sooji of the respondent amounted to over rupees fiftyeight lakhs. Account books of the respondent also showed that during the year 1958-59 the turnover of the respondent for sale of atta, maida and sooji amounted to over rupees seventyfive lakhs. The assessing authority had also material with it to show that the quota of wheat for the respondent had been fixed in August 1958 on the basis of the average of grinding done in the past three years. There was also the additional fact that the respondent had in spite of repeated notices not produced its account books for the assessment year 1957-58. These facts, in our opinion, were germane to the formation of the belief of the assessing authority that part of the turnover of the respondent had escaped assessment to tax. It cannot be said that the above belief was not formed in good faith or was mere pretence for initiating action under Section 21 of the Act. The assessing authority in the circumstances, in our opinion, acted within the ambit of its powers in initiating proceedings under Section 21 of the Act.13. We are unable to accede to the contention of Mr. Karkhanis that as the assessment sought to be reopened was ex parte assessment under Rule 41 (5) of the Uttar Pradesh Sales Tax Rules, no proceedings in respect of that assessment can be initiated under Section 21 of the Act. There is nothing in that section to restrict its operation to assessments other than those which have been made ex parte under Rule 41 (5). The language of the section makes it plain that the assessing authority can take action if such authority has reason to believe that the whole or part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year. To accede to the contention of Mr. Karkhanis would be tantamount to affording protection, so far as the operation of Section 21 is concerned, to dealers who avoid to put in appearance and produce their account books before the assessing authority. Such a construction is not only not warranted by the language of the section, it is manifestly unreasonable inasmuch as it puts a premium on contumacy.14.Mr. Karkhanis has also assailed the answer of the High Court to question No. (II) and has contended that the notice dated September 13, 1961 and the memorandum dated March 13, 1962 should be construed as notices under Section 21 of the Act.As the re-assessment was not completed within one year of the service of those notices, the re-assessment, according to the learned counsel, should be held to be barred by limitation. There is, in our opinion, no force in this contention. We agree with the High Court that the above notice and the memorandum were of a preliminary nature and did not constitute notices under Section 21 of the Act. All that was stated in the said notice and the memorandum was to call upon the respondent to produce account books. Threat was also held out that in case of non-compliance by the respondent proceedings would be taken under Section 21 of the Act. The above notice and the memorandum could not consequently be construed as notices under Section 21 of the Act.It was only on March 24, 1962 that notice under Section 21 of the Act was given to the respondent and the same was served on March 26, 1962. The assessment under Section 21 was made on March 19, 1963 which was admittedly within one year of the date of the service of the notice under Section 21 of the Act. | 1 | 4,111 | 736 | ### 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:
fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment, that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notice under Section 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in Section 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. To put it differently, it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings under Section 34 of the Act is open to challenge in a Court of law."Reliance was placed in the above context upon an earlier decision of this Court in the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ). The above observations regarding the import of the words "reason to believe" though made in the context of Section 34 of the Indian Income Tax Act, 1922 have, in our opinion, equal bearing on the construction of those words in Section 21 of the U. P. Sales Tax Act.12. In the light of the view we have taken of the import of the words "reason to believe", we have no doubt that the assessing authority in the present case had valid grounds for initiating proceedings under Section 21 of the Act against the respondent. It would appear from the memorandum dated March 13, 1962 sent by the assessing authority that for the assessment year 1955-56 the sales of atta, maida and sooji of the respondent amounted to over rupees fiftyeight lakhs. Account books of the respondent also showed that during the year 1958-59 the turnover of the respondent for sale of atta, maida and sooji amounted to over rupees seventyfive lakhs. The assessing authority had also material with it to show that the quota of wheat for the respondent had been fixed in August 1958 on the basis of the average of grinding done in the past three years. There was also the additional fact that the respondent had in spite of repeated notices not produced its account books for the assessment year 1957-58. These facts, in our opinion, were germane to the formation of the belief of the assessing authority that part of the turnover of the respondent had escaped assessment to tax. It cannot be said that the above belief was not formed in good faith or was mere pretence for initiating action under Section 21 of the Act. The assessing authority in the circumstances, in our opinion, acted within the ambit of its powers in initiating proceedings under Section 21 of the Act.13. We are unable to accede to the contention of Mr. Karkhanis that as the assessment sought to be reopened was ex parte assessment under Rule 41 (5) of the Uttar Pradesh Sales Tax Rules, no proceedings in respect of that assessment can be initiated under Section 21 of the Act. There is nothing in that section to restrict its operation to assessments other than those which have been made ex parte under Rule 41 (5). The language of the section makes it plain that the assessing authority can take action if such authority has reason to believe that the whole or part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year. To accede to the contention of Mr. Karkhanis would be tantamount to affording protection, so far as the operation of Section 21 is concerned, to dealers who avoid to put in appearance and produce their account books before the assessing authority. Such a construction is not only not warranted by the language of the section, it is manifestly unreasonable inasmuch as it puts a premium on contumacy.14. Mr. Karkhanis has also assailed the answer of the High Court to question No. (II) and has contended that the notice dated September 13, 1961 and the memorandum dated March 13, 1962 should be construed as notices under Section 21 of the Act. As the re-assessment was not completed within one year of the service of those notices, the re-assessment, according to the learned counsel, should be held to be barred by limitation. There is, in our opinion, no force in this contention. We agree with the High Court that the above notice and the memorandum were of a preliminary nature and did not constitute notices under Section 21 of the Act. All that was stated in the said notice and the memorandum was to call upon the respondent to produce account books. Threat was also held out that in case of non-compliance by the respondent proceedings would be taken under Section 21 of the Act. The above notice and the memorandum could not consequently be construed as notices under Section 21 of the Act.It was only on March 24, 1962 that notice under Section 21 of the Act was given to the respondent and the same was served on March 26, 1962. The assessment under Section 21 was made on March 19, 1963 which was admittedly within one year of the date of the service of the notice under Section 21 of the Act.15
### Response:
1
### Explanation:
12. In the light of the view we have taken of the import of the words "reason to believe", we have no doubt that the assessing authority in the present case had valid grounds for initiating proceedings under Section 21 of the Act against the respondent. It would appear from the memorandum dated March 13, 1962 sent by the assessing authority that for the assessment year 1955-56 the sales of atta, maida and sooji of the respondent amounted to over rupees fiftyeight lakhs. Account books of the respondent also showed that during the year 1958-59 the turnover of the respondent for sale of atta, maida and sooji amounted to over rupees seventyfive lakhs. The assessing authority had also material with it to show that the quota of wheat for the respondent had been fixed in August 1958 on the basis of the average of grinding done in the past three years. There was also the additional fact that the respondent had in spite of repeated notices not produced its account books for the assessment year 1957-58. These facts, in our opinion, were germane to the formation of the belief of the assessing authority that part of the turnover of the respondent had escaped assessment to tax. It cannot be said that the above belief was not formed in good faith or was mere pretence for initiating action under Section 21 of the Act. The assessing authority in the circumstances, in our opinion, acted within the ambit of its powers in initiating proceedings under Section 21 of the Act.13. We are unable to accede to the contention of Mr. Karkhanis that as the assessment sought to be reopened was ex parte assessment under Rule 41 (5) of the Uttar Pradesh Sales Tax Rules, no proceedings in respect of that assessment can be initiated under Section 21 of the Act. There is nothing in that section to restrict its operation to assessments other than those which have been made ex parte under Rule 41 (5). The language of the section makes it plain that the assessing authority can take action if such authority has reason to believe that the whole or part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year. To accede to the contention of Mr. Karkhanis would be tantamount to affording protection, so far as the operation of Section 21 is concerned, to dealers who avoid to put in appearance and produce their account books before the assessing authority. Such a construction is not only not warranted by the language of the section, it is manifestly unreasonable inasmuch as it puts a premium on contumacy.14.Mr. Karkhanis has also assailed the answer of the High Court to question No. (II) and has contended that the notice dated September 13, 1961 and the memorandum dated March 13, 1962 should be construed as notices under Section 21 of the Act.As the re-assessment was not completed within one year of the service of those notices, the re-assessment, according to the learned counsel, should be held to be barred by limitation. There is, in our opinion, no force in this contention. We agree with the High Court that the above notice and the memorandum were of a preliminary nature and did not constitute notices under Section 21 of the Act. All that was stated in the said notice and the memorandum was to call upon the respondent to produce account books. Threat was also held out that in case of non-compliance by the respondent proceedings would be taken under Section 21 of the Act. The above notice and the memorandum could not consequently be construed as notices under Section 21 of the Act.It was only on March 24, 1962 that notice under Section 21 of the Act was given to the respondent and the same was served on March 26, 1962. The assessment under Section 21 was made on March 19, 1963 which was admittedly within one year of the date of the service of the notice under Section 21 of the Act.
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Ramesh Chand Vs. M/S. Tanmay Developers Pvt. Ltd. | is not mandatory to make a reference to the civil court under Section 30 and adjudication of dispute in an appropriate case can be ordered by way of the civil suit. In the instant case civil suits had already been preferred by respondent No.1. It was not appropriate to decide same dispute under Section 30. 9. In the instant case, there were serious disputed questions as to whether earnest money had been rightly forfeited by the land owners due to the failure of the respondent No. 1 to obtain the sale deeds executed within stipulated time fixed under the agreements, whether respondents were ready and willing to purchase the property and had arrangement of balance consideration for payment to land owner. Whether the power of forfeiture was rightly exercised by the land owners as claimed by them. The Civil Court was already in seisin of the matter as such reference court had rightly rejected the reference made under Section 30 of the Act and rightly asked parties to await outcome of the regular civil suits. 10. The High Court in the impugned judgment has not decided aforesaid objections raised by the appellants/land owners without examining facts and circumstances of the case and due to pendency of civil suits, it was not open to the High Court to order refund of the earnest money.11. A perusal of Section 18 of the Act makes it clear that reference can be sought to a civil court with respect (i) the measurement of the land, (ii) adequacy and quantum of compensation, (iii) persons to whom it is payable and (iv) the apportionment thereof amongst the persons interested. The application under Section 18 is required to be filed within stipulated time whereas no limitation is prescribed under Section 30 of the Act. It is discretionary upon the court to refer a dispute under Section 30 of the Act. The same is confined to the apportionment of the compensation or as to a person to whom the same is payable. The scope of Section 30 of the Act is narrow as compared to Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237 and in Sharda Devi v. State of Bihar, 2003(1) R.C.R.(Civil) 552 : (2003) 3 SCC 128. 12. We need not go into the question whether holder of agreement is "person interested" as defined in Section 3(b) of the Act. As we are satisfied that respondent No. 1 could not have resorted to the remedy of reference for refund of the earnest money as for this very purpose he had filed civil suit earlier in point of time. In the reference petition refund of earnest money had been prayed with interest at the rate of 12 per cent per annum. In civil suit refund had been sought with 18 per cent interest per annum and in one suit specific performance was prayed.13. The High Court has relied upon the decision of this Court in Thiriveedhi Channiah v. Gudipudi Venkata Subba Rao (Dead) by Lrs. & Ors., 2007(2) R.C.R.(Civil) 304 : (2009) 17 SCC 341 , in which the appellant demanded refund of the advance amount on the premise that due to notification under Section 4(1), property could not be sold whereas the plea of forfeiture was advanced by the respondents. This High Court had ignored and overlooked that case arose out of the civil suit in which specific performance of agreement to sale was sought. This Court has found that parties were aware of the notification under Section 4(1) as such right of forfeiture could have been exercised. The facts in the said case were different and the said decision could not have been utilized by the High Court for setting aside the well reasoned award passed by the reference court declining to entertain the prayer made by the respondents, in view of the availing remedy of the civil suits. The High Court should have in fairness reflected that the said decision was rendered by this Court in the context of civil suit. The High Court has referred it in the manner as if it was a case which has been decided under Section 30 of the Act with respect to the apportionment of the compensation.14. The learned counsel on behalf of the respondent has relied upon the decision of Bombay High Court in Mohammad Akil Khan v. Premraj Jawanmal Surana and Anr. AIR 1972 Bom. 217 . The decision is distinguishable as the civil suit had not been filed in the said case. Thus, we need not go into the correctness of the aforesaid decision. Reliance has also been placed on Delhi Development Authority v. Bhola Nath Sharma (Dead) by Lrs. & Ors., 2011(1) R.C.R.(Civil) 820 : 2011(1) Recent Apex Judgments (R.A.J.) 296 : (2011) 2 SCC 54 ; and Sunderlal v. Paramsukhdas & Ors. AIR 1968 SC 366 to contend that definition under Section 3(b) of the "person interested" is "inclusive" definition. Reliance for this purpose has also been placed on U.P. Jal Nigam, Lucknow Through Its Chairman & Anr. v. Kalra Properties (P) Ltd., Lucknow & Ors. (1996) 3 SCC 124 , laying down that a purchaser is entitled to step into the shoes of the owner to claim compensation though could not question the notification for acquisition. In our opinion even if it is held that respondent No.1 was the "person interested" within the meaning of Section 3(b) of the Act its case is not advanced so as to seek adjudication of the questions in the facts of this case in the reference under Section 30 of the Act which remedy was discretionary. The land owners also relied upon Coromandel Indag Products Private Limited v. Garuda Chit and Trading Company Private Limited and Another, 2011(4) R.C.R.(Civil) 677 : (2011) 8 SCC 601 wherein this Court dealt with question when time is essence of the contract and in what circumstances earnest money could be forfeited. This question has to be gone into in civil suits. | 1[ds]8. It was not rightly disputed that several civil suits with respect to refund of the earnest money and for specific performance of the agreement to sale were filed by the respondent No.1 before reference was sought under Section 30 of the Act. Once remedy in the form of civil suits had been resorted to, in our considered opinion, it was not at all proper exercise of power to invoke provisions under Section 30 of the Act with regard to apportionment of the compensation by directing refund of earnest money. It is not mandatory to make a reference to the civil court under Section 30 and adjudication of dispute in an appropriate case can be ordered by way of the civil suit. In the instant case civil suits had already been preferred by respondent No.1. It was not appropriate to decide same dispute under Section 30.The High Court in the impugned judgment has not decided aforesaid objections raised by the appellants/land owners without examining facts and circumstances of the case and due to pendency of civil suits, it was not open to the High Court to order refund of the earnest money.11. A perusal of Section 18 of the Act makes it clear that reference can be sought to a civil court with respect (i) the measurement of the land, (ii) adequacy and quantum of compensation, (iii) persons to whom it is payable and (iv) the apportionment thereof amongst the persons interested. The application under Section 18 is required to be filed within stipulated time whereas no limitation is prescribed under Section 30 of the Act. It is discretionary upon the court to refer a dispute under Section 30 of the Act. The same is confined to the apportionment of the compensation or as to a person to whom the same is payable. The scope of Section 30 of the Act is narrow as compared to Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237 and in Sharda Devi v. State of Bihar, 2003(1) R.C.R.(Civil) 552 : (2003) 3 SCC 128. 12. We need not go into the question whether holder of agreement is "person interested" as defined in Section 3(b) of the Act. As we are satisfied that respondent No. 1 could not have resorted to the remedy of reference for refund of the earnest money as for this very purpose he had filed civil suit earlier in point of time. In the reference petition refund of earnest money had been prayed with interest at the rate of 12 per cent per annum. In civil suit refund had been sought with 18 per cent interest per annum and in one suit specific performance was prayed.The facts in the said case were different and the said decision could not have been utilized by the High Court for setting aside the well reasoned award passed by the reference court declining to entertain the prayer made by the respondents, in view of the availing remedy of the civil suits. The High Court should have in fairness reflected that the said decision was rendered by this Court in the context of civil suit. The High Court has referred it in the manner as if it was a case which has been decided under Section 30 of the Act with respect to the apportionment of the compensation. | 1 | 2,337 | 613 | ### 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:
is not mandatory to make a reference to the civil court under Section 30 and adjudication of dispute in an appropriate case can be ordered by way of the civil suit. In the instant case civil suits had already been preferred by respondent No.1. It was not appropriate to decide same dispute under Section 30. 9. In the instant case, there were serious disputed questions as to whether earnest money had been rightly forfeited by the land owners due to the failure of the respondent No. 1 to obtain the sale deeds executed within stipulated time fixed under the agreements, whether respondents were ready and willing to purchase the property and had arrangement of balance consideration for payment to land owner. Whether the power of forfeiture was rightly exercised by the land owners as claimed by them. The Civil Court was already in seisin of the matter as such reference court had rightly rejected the reference made under Section 30 of the Act and rightly asked parties to await outcome of the regular civil suits. 10. The High Court in the impugned judgment has not decided aforesaid objections raised by the appellants/land owners without examining facts and circumstances of the case and due to pendency of civil suits, it was not open to the High Court to order refund of the earnest money.11. A perusal of Section 18 of the Act makes it clear that reference can be sought to a civil court with respect (i) the measurement of the land, (ii) adequacy and quantum of compensation, (iii) persons to whom it is payable and (iv) the apportionment thereof amongst the persons interested. The application under Section 18 is required to be filed within stipulated time whereas no limitation is prescribed under Section 30 of the Act. It is discretionary upon the court to refer a dispute under Section 30 of the Act. The same is confined to the apportionment of the compensation or as to a person to whom the same is payable. The scope of Section 30 of the Act is narrow as compared to Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237 and in Sharda Devi v. State of Bihar, 2003(1) R.C.R.(Civil) 552 : (2003) 3 SCC 128. 12. We need not go into the question whether holder of agreement is "person interested" as defined in Section 3(b) of the Act. As we are satisfied that respondent No. 1 could not have resorted to the remedy of reference for refund of the earnest money as for this very purpose he had filed civil suit earlier in point of time. In the reference petition refund of earnest money had been prayed with interest at the rate of 12 per cent per annum. In civil suit refund had been sought with 18 per cent interest per annum and in one suit specific performance was prayed.13. The High Court has relied upon the decision of this Court in Thiriveedhi Channiah v. Gudipudi Venkata Subba Rao (Dead) by Lrs. & Ors., 2007(2) R.C.R.(Civil) 304 : (2009) 17 SCC 341 , in which the appellant demanded refund of the advance amount on the premise that due to notification under Section 4(1), property could not be sold whereas the plea of forfeiture was advanced by the respondents. This High Court had ignored and overlooked that case arose out of the civil suit in which specific performance of agreement to sale was sought. This Court has found that parties were aware of the notification under Section 4(1) as such right of forfeiture could have been exercised. The facts in the said case were different and the said decision could not have been utilized by the High Court for setting aside the well reasoned award passed by the reference court declining to entertain the prayer made by the respondents, in view of the availing remedy of the civil suits. The High Court should have in fairness reflected that the said decision was rendered by this Court in the context of civil suit. The High Court has referred it in the manner as if it was a case which has been decided under Section 30 of the Act with respect to the apportionment of the compensation.14. The learned counsel on behalf of the respondent has relied upon the decision of Bombay High Court in Mohammad Akil Khan v. Premraj Jawanmal Surana and Anr. AIR 1972 Bom. 217 . The decision is distinguishable as the civil suit had not been filed in the said case. Thus, we need not go into the correctness of the aforesaid decision. Reliance has also been placed on Delhi Development Authority v. Bhola Nath Sharma (Dead) by Lrs. & Ors., 2011(1) R.C.R.(Civil) 820 : 2011(1) Recent Apex Judgments (R.A.J.) 296 : (2011) 2 SCC 54 ; and Sunderlal v. Paramsukhdas & Ors. AIR 1968 SC 366 to contend that definition under Section 3(b) of the "person interested" is "inclusive" definition. Reliance for this purpose has also been placed on U.P. Jal Nigam, Lucknow Through Its Chairman & Anr. v. Kalra Properties (P) Ltd., Lucknow & Ors. (1996) 3 SCC 124 , laying down that a purchaser is entitled to step into the shoes of the owner to claim compensation though could not question the notification for acquisition. In our opinion even if it is held that respondent No.1 was the "person interested" within the meaning of Section 3(b) of the Act its case is not advanced so as to seek adjudication of the questions in the facts of this case in the reference under Section 30 of the Act which remedy was discretionary. The land owners also relied upon Coromandel Indag Products Private Limited v. Garuda Chit and Trading Company Private Limited and Another, 2011(4) R.C.R.(Civil) 677 : (2011) 8 SCC 601 wherein this Court dealt with question when time is essence of the contract and in what circumstances earnest money could be forfeited. This question has to be gone into in civil suits.
### Response:
1
### Explanation:
8. It was not rightly disputed that several civil suits with respect to refund of the earnest money and for specific performance of the agreement to sale were filed by the respondent No.1 before reference was sought under Section 30 of the Act. Once remedy in the form of civil suits had been resorted to, in our considered opinion, it was not at all proper exercise of power to invoke provisions under Section 30 of the Act with regard to apportionment of the compensation by directing refund of earnest money. It is not mandatory to make a reference to the civil court under Section 30 and adjudication of dispute in an appropriate case can be ordered by way of the civil suit. In the instant case civil suits had already been preferred by respondent No.1. It was not appropriate to decide same dispute under Section 30.The High Court in the impugned judgment has not decided aforesaid objections raised by the appellants/land owners without examining facts and circumstances of the case and due to pendency of civil suits, it was not open to the High Court to order refund of the earnest money.11. A perusal of Section 18 of the Act makes it clear that reference can be sought to a civil court with respect (i) the measurement of the land, (ii) adequacy and quantum of compensation, (iii) persons to whom it is payable and (iv) the apportionment thereof amongst the persons interested. The application under Section 18 is required to be filed within stipulated time whereas no limitation is prescribed under Section 30 of the Act. It is discretionary upon the court to refer a dispute under Section 30 of the Act. The same is confined to the apportionment of the compensation or as to a person to whom the same is payable. The scope of Section 30 of the Act is narrow as compared to Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237 and in Sharda Devi v. State of Bihar, 2003(1) R.C.R.(Civil) 552 : (2003) 3 SCC 128. 12. We need not go into the question whether holder of agreement is "person interested" as defined in Section 3(b) of the Act. As we are satisfied that respondent No. 1 could not have resorted to the remedy of reference for refund of the earnest money as for this very purpose he had filed civil suit earlier in point of time. In the reference petition refund of earnest money had been prayed with interest at the rate of 12 per cent per annum. In civil suit refund had been sought with 18 per cent interest per annum and in one suit specific performance was prayed.The facts in the said case were different and the said decision could not have been utilized by the High Court for setting aside the well reasoned award passed by the reference court declining to entertain the prayer made by the respondents, in view of the availing remedy of the civil suits. The High Court should have in fairness reflected that the said decision was rendered by this Court in the context of civil suit. The High Court has referred it in the manner as if it was a case which has been decided under Section 30 of the Act with respect to the apportionment of the compensation.
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Association For Enviornment Protection Vs. State Of Kerala | or otherwise affect the environment and ecology of the area. 17. We have considered the respective arguments and scrutinized the record. On 13.1.1978, the Government of Kerala accepted the recommendations made by the State Committee on Environmental Planning and Coordination and issued an order, which was published in Official Gazette dated 7.2.1978 for review and assessment of environmental implications of various projects. The relevant portions of that order are reproduced below: “In the light of the recommendation of the State Committee on Environmental Planning and Co-operation in their second meeting held on 23.7.1977, Government are pleased to order as follows:1. All development schemes costing Rs.10 lakhs and above will be referred to the Committee on Environmental Planning and Co-ordination for review and assessment of environmental implications in order to integrate environmental concerns and the clearance of the committee will be obtained before the scheme share sanctioned and taken up for execution.2. In the case of projects costing Rs.25 lakhs and above the Department concerned will while referring the projects for review and clearance by the committee furnish detailed and comprehensive environmental impact statement for the project prepared with the help of experts.3. In the case of schemes costing less than Rs.10 lakhs, the Environmental implication will be assessed by the concerned department in the light of guidelines formulated by the committee and the concerned department will be responsible to ensure that suitable remedial measures for protecting the environment are incorporated in the scheme itself before the schemes are sanctioned and taken up for implementation. If the department concerned feels certain that with the safeguards provided in the scheme, the ecological stability and purity of environment will be maintained they can go ahead with the scheme without reference to the committee. Doubtful cases will however be referred to the committee for clearance.By order of the Government.SD/-P.K.RajasekharanNairUnder Secretary.” 18. By G.O. dated 20.5.2005, the State Government accorded administrative sanction for renovation and beautification of Manalpuram Park and construction of a restaurant at Aluva at an estimated cost of Rs.55,72,432/-. That order reads as under: “GOVERNMENT OF KERALAAbstractDepartment of Tourism -Working Group on Plan Schemes - Renovation of Manalppuram Park and construction of Restaurant at Aluva - Administrative Sanction accorded – Orders issued.TOURISM (A) DEPARTMENTG.O.(Rt) No.3974/05/GAD. Dated, Thiruvananthapuram20.05.2005Read:Letter No.C2-22446/04, dated 11.04.2005 from theDirector, Department of Tourism, Thiruvananthapuram.ORDERThe Aluva Manalppuram is a significant pilgrim centre as well as tourism spot. The Aluva Manalppuram is famous for Shivarathri celebrations. The pilgrims visiting Kalady, the birthplace of Shri Shankaracharya include this spot also in the schedule of visit. The Director, Department of Tourism as per the letter read above has forwarded a proposal submitted by the District Collector and Chairman, DTPC, Ernakulam for the renovation of the Manalppuram Park and construction of Restaurant at Aluva and has requested for Administrative Sanction for the project at an estimated cost of Rs.55,72,432/- as detailed below.1. Beautification of Manalppuram Park Rs.24,10,421/-2. Construction of Restaurant Rs.3l,62,011/-TOTAL Rs.55,72,432/-The Working Group that met on 29.04.2005 considered the proposal of the Director, Department of Tourism and approved it. Sanction is therefore accorded for the Project for the renovation of Manalppuram Park and construction of Restaurant at Aluva at an estimated cost of Rs.55,72,432 /- (Rupees Fifty Five Lakhs Seventy Two Thousand Four Hundred and Thirty two only) .The expenditure on this account will be met from the head of account “3452-80-800-90(29)-Upgradation and creation of infrastructure facilities at Tourist Centres (Plan)”. The work will be executed through DTPC, Ernakulam and will be completed within a period of six months.By Order of the GovernorD. Saraswathy Amma,Deputy Secretary.” 19. There is nothing in the language of G.O. dated 20.5.2005 from which it can be inferred that while approving the proposal forwarded by the Director, Department of Tourism for renovation and beautification of Manalpuram Park at an estimated cost of Rs.55,72,432/-, the State Government had amended G.O. dated 13.1.1978 or otherwise relaxed the conditions embodied therein. The record also does not show that the Department of Tourism had furnished a detailed comprehensive environmental impact statement for the project so as to enable the Committee to make appropriate review and assessment. Therefore, it must be held that the execution of the project including construction of restaurant is ex facie contrary to the mandate of G.O. dated 13.1.1978, which was issued by the State in discharge of its Constitutional obligation under Article 48-A. Unfortunately, the Division Bench of the High Court ignored this crucial issue and casually dismissed the writ petition without examining the serious implications of the construction of a restaurant on the land reclaimed by Aluva Municipality from the river. 20. G.O. dated 13.1.1978 is illustrative of the State Government’s commitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978. 21. | 1[ds]G.O. dated 13.1.1978 is illustrative of the Statecommitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978. | 1 | 4,176 | 249 | ### Instruction:
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or otherwise affect the environment and ecology of the area. 17. We have considered the respective arguments and scrutinized the record. On 13.1.1978, the Government of Kerala accepted the recommendations made by the State Committee on Environmental Planning and Coordination and issued an order, which was published in Official Gazette dated 7.2.1978 for review and assessment of environmental implications of various projects. The relevant portions of that order are reproduced below: “In the light of the recommendation of the State Committee on Environmental Planning and Co-operation in their second meeting held on 23.7.1977, Government are pleased to order as follows:1. All development schemes costing Rs.10 lakhs and above will be referred to the Committee on Environmental Planning and Co-ordination for review and assessment of environmental implications in order to integrate environmental concerns and the clearance of the committee will be obtained before the scheme share sanctioned and taken up for execution.2. In the case of projects costing Rs.25 lakhs and above the Department concerned will while referring the projects for review and clearance by the committee furnish detailed and comprehensive environmental impact statement for the project prepared with the help of experts.3. In the case of schemes costing less than Rs.10 lakhs, the Environmental implication will be assessed by the concerned department in the light of guidelines formulated by the committee and the concerned department will be responsible to ensure that suitable remedial measures for protecting the environment are incorporated in the scheme itself before the schemes are sanctioned and taken up for implementation. If the department concerned feels certain that with the safeguards provided in the scheme, the ecological stability and purity of environment will be maintained they can go ahead with the scheme without reference to the committee. Doubtful cases will however be referred to the committee for clearance.By order of the Government.SD/-P.K.RajasekharanNairUnder Secretary.” 18. By G.O. dated 20.5.2005, the State Government accorded administrative sanction for renovation and beautification of Manalpuram Park and construction of a restaurant at Aluva at an estimated cost of Rs.55,72,432/-. That order reads as under: “GOVERNMENT OF KERALAAbstractDepartment of Tourism -Working Group on Plan Schemes - Renovation of Manalppuram Park and construction of Restaurant at Aluva - Administrative Sanction accorded – Orders issued.TOURISM (A) DEPARTMENTG.O.(Rt) No.3974/05/GAD. Dated, Thiruvananthapuram20.05.2005Read:Letter No.C2-22446/04, dated 11.04.2005 from theDirector, Department of Tourism, Thiruvananthapuram.ORDERThe Aluva Manalppuram is a significant pilgrim centre as well as tourism spot. The Aluva Manalppuram is famous for Shivarathri celebrations. The pilgrims visiting Kalady, the birthplace of Shri Shankaracharya include this spot also in the schedule of visit. The Director, Department of Tourism as per the letter read above has forwarded a proposal submitted by the District Collector and Chairman, DTPC, Ernakulam for the renovation of the Manalppuram Park and construction of Restaurant at Aluva and has requested for Administrative Sanction for the project at an estimated cost of Rs.55,72,432/- as detailed below.1. Beautification of Manalppuram Park Rs.24,10,421/-2. Construction of Restaurant Rs.3l,62,011/-TOTAL Rs.55,72,432/-The Working Group that met on 29.04.2005 considered the proposal of the Director, Department of Tourism and approved it. Sanction is therefore accorded for the Project for the renovation of Manalppuram Park and construction of Restaurant at Aluva at an estimated cost of Rs.55,72,432 /- (Rupees Fifty Five Lakhs Seventy Two Thousand Four Hundred and Thirty two only) .The expenditure on this account will be met from the head of account “3452-80-800-90(29)-Upgradation and creation of infrastructure facilities at Tourist Centres (Plan)”. The work will be executed through DTPC, Ernakulam and will be completed within a period of six months.By Order of the GovernorD. Saraswathy Amma,Deputy Secretary.” 19. There is nothing in the language of G.O. dated 20.5.2005 from which it can be inferred that while approving the proposal forwarded by the Director, Department of Tourism for renovation and beautification of Manalpuram Park at an estimated cost of Rs.55,72,432/-, the State Government had amended G.O. dated 13.1.1978 or otherwise relaxed the conditions embodied therein. The record also does not show that the Department of Tourism had furnished a detailed comprehensive environmental impact statement for the project so as to enable the Committee to make appropriate review and assessment. Therefore, it must be held that the execution of the project including construction of restaurant is ex facie contrary to the mandate of G.O. dated 13.1.1978, which was issued by the State in discharge of its Constitutional obligation under Article 48-A. Unfortunately, the Division Bench of the High Court ignored this crucial issue and casually dismissed the writ petition without examining the serious implications of the construction of a restaurant on the land reclaimed by Aluva Municipality from the river. 20. G.O. dated 13.1.1978 is illustrative of the State Government’s commitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978. 21.
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G.O. dated 13.1.1978 is illustrative of the Statecommitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978.
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The Municipal Corporation Bhopal, M.P Vs. Misbahul Hasan and Ors | discloses that the High Court had itself considered it necessary to hear the State Government. It had, therefore, given time to the State Counsel, by an order dated 16th April, 1970, to file a return to the petition of the employee. But, the State Counsel had neither filed any return nor put in any appearance. Thus, the State had obtained due opportunity to oppose the petition, but it had not chosen to do so. Therefore, we are unable to entertain any such objection at this stage.9. Another question attempted to be raised before us, by the learned Counsel for the State of Madhya Pradesh, was based on assertion which were neither made in the High Court by any party nor in the High Court by any party nor in this Court in the two Special Leave Petitions. The submission rests on materials said to exist on the reports of the State Government which, it was stated, show that the proposal had actually come from the Administrator himself, that the particular amendment sought be made by the Government. If this was the correct position, the State Counsel should have appeared before the High Court and placed the whole record before the Court so that the facts which had a material bearing on the question whether the procedure laid down by S.432 of the Act had been followed in substance or spirit or not, may be gone into and decided.10. The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.11. After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.12. Assuming, however, that the modification of the age of retirement could be made by a rule made under S.433 of the Act and not merely by a bye law, as contemplated by the Act, we find that a condition precedent for an argument of a rule has not been followed here. S.433 of the Act enacts. "The State Government may after previous publication in the Gazette make rules for the purpose of carrying into effect the provisions of this Act". S.24 of the Madhya Pradesh General Clauses Act, 1957, lays down:"24. Provisions applicable to makeing of rules or bye laws, etc. after previous publication Where, by any Madhya Pradesh Act, a power to make rules or bye laws is expressed to be given subject to the condition of the rules or bye laws being made after previous publication, then the following provisions shall apply, namely:(a) The authority having power to make the rules or bye laws shall, before making them, publish a draft of the proposed rules or bye laws for the information of persons likely to be affected thereby;(b) The publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the Government prescribes;(c) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.(d) The authority having power to make the rules or bye laws and where the rules or bye laws are to be made with the sanction, approval or concurrence of another authority, that authority also shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye laws from any person with respect to the draft before the date so specified;(e) the publication in the Official Gazette of a rule or bye law purporting to have been made in exercise of a power to make rules or bye laws after previous publication shall be conclusive proof that the rule or bye law has been duly made".13. The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here. | 1[ds]6. It is admitted by both sides that at the relevant time, the powers of the Corporation were vested in the Administrator under the provisions of S.132 sub-s. (1) of the Act. The only question, according to the Corporation is whether the Administrator, acting as the Corporation, could not forego the right of the Corporation to make any representation with regard to a proposal of the Government to amend a bye law. In other words, the modification or amendment of a bye law under S.432 of the Act was a matter of concern only to the Government and to the Corporation and to nobody else. If, therefore, there was any infringement of its technical procedural requirements, it was only for the Corporation and nobody else, according to this contention, to raise the objection. The broad proposition put forward before us is that the requirements of a procedure intended for the benefit of a party could be dispensed with if that party itself chooses that this should be done. It is pointed out that the only object of the procedure provided by S.432 was that the proposals of the Government may be duly considered by the Corporation so as to enable it to represent its views. There was no obligation upon the Corporation to make a representation. If the Corporation did not choose to make a representation, after the Government had sent its reasons for its opinion to the Corporation and had asked for the representation within a prescribed period, the failure of the Corporation to make any representation would, far from depriving the Government of the power to issue a notification modifying or repealing a bye law wholly or in part in accordance with its opinion, enable it to do so. The mere order in which a proposal is made and assent to it is given by the Corporation, it was urged, should not make any difference as there was substantial compliance with prescribed procedure.The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here. | 1 | 2,841 | 792 | ### Instruction:
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discloses that the High Court had itself considered it necessary to hear the State Government. It had, therefore, given time to the State Counsel, by an order dated 16th April, 1970, to file a return to the petition of the employee. But, the State Counsel had neither filed any return nor put in any appearance. Thus, the State had obtained due opportunity to oppose the petition, but it had not chosen to do so. Therefore, we are unable to entertain any such objection at this stage.9. Another question attempted to be raised before us, by the learned Counsel for the State of Madhya Pradesh, was based on assertion which were neither made in the High Court by any party nor in the High Court by any party nor in this Court in the two Special Leave Petitions. The submission rests on materials said to exist on the reports of the State Government which, it was stated, show that the proposal had actually come from the Administrator himself, that the particular amendment sought be made by the Government. If this was the correct position, the State Counsel should have appeared before the High Court and placed the whole record before the Court so that the facts which had a material bearing on the question whether the procedure laid down by S.432 of the Act had been followed in substance or spirit or not, may be gone into and decided.10. The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.11. After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.12. Assuming, however, that the modification of the age of retirement could be made by a rule made under S.433 of the Act and not merely by a bye law, as contemplated by the Act, we find that a condition precedent for an argument of a rule has not been followed here. S.433 of the Act enacts. "The State Government may after previous publication in the Gazette make rules for the purpose of carrying into effect the provisions of this Act". S.24 of the Madhya Pradesh General Clauses Act, 1957, lays down:"24. Provisions applicable to makeing of rules or bye laws, etc. after previous publication Where, by any Madhya Pradesh Act, a power to make rules or bye laws is expressed to be given subject to the condition of the rules or bye laws being made after previous publication, then the following provisions shall apply, namely:(a) The authority having power to make the rules or bye laws shall, before making them, publish a draft of the proposed rules or bye laws for the information of persons likely to be affected thereby;(b) The publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the Government prescribes;(c) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.(d) The authority having power to make the rules or bye laws and where the rules or bye laws are to be made with the sanction, approval or concurrence of another authority, that authority also shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye laws from any person with respect to the draft before the date so specified;(e) the publication in the Official Gazette of a rule or bye law purporting to have been made in exercise of a power to make rules or bye laws after previous publication shall be conclusive proof that the rule or bye law has been duly made".13. The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.
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6. It is admitted by both sides that at the relevant time, the powers of the Corporation were vested in the Administrator under the provisions of S.132 sub-s. (1) of the Act. The only question, according to the Corporation is whether the Administrator, acting as the Corporation, could not forego the right of the Corporation to make any representation with regard to a proposal of the Government to amend a bye law. In other words, the modification or amendment of a bye law under S.432 of the Act was a matter of concern only to the Government and to the Corporation and to nobody else. If, therefore, there was any infringement of its technical procedural requirements, it was only for the Corporation and nobody else, according to this contention, to raise the objection. The broad proposition put forward before us is that the requirements of a procedure intended for the benefit of a party could be dispensed with if that party itself chooses that this should be done. It is pointed out that the only object of the procedure provided by S.432 was that the proposals of the Government may be duly considered by the Corporation so as to enable it to represent its views. There was no obligation upon the Corporation to make a representation. If the Corporation did not choose to make a representation, after the Government had sent its reasons for its opinion to the Corporation and had asked for the representation within a prescribed period, the failure of the Corporation to make any representation would, far from depriving the Government of the power to issue a notification modifying or repealing a bye law wholly or in part in accordance with its opinion, enable it to do so. The mere order in which a proposal is made and assent to it is given by the Corporation, it was urged, should not make any difference as there was substantial compliance with prescribed procedure.The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.
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Champalal Vs. Mst. Samarath Bai | made as above the will of my estate. Under this will, I am authorising the said Champalal Ishwardas to execute the same. I have appointed him the executor of this will. Under the said will, the said Champalal alone shall be the full owner of my entire movable and immoveable property and the executor of the will after my death if I adopt him during my lifetime or even if my virtue adopts him (after my death)."The words "under the said will the said Champalal shall be......the executor of the will after my death if I adopt him during my lifetime or even if my wife adopts him after my death" show that the appellant was to become executor after his adoption and as he was not adopted he cannot be the executor and therefore the argument that an executor cannot enter into arbitration does not arise and we do not think it necessary to decide this matter beyond saying that the appellant was not constituted an executor eo nomine but was to be an executor if he was adopted. Similarly the question whether the appellant after accepting the office of an executor had renounced it or a discharge was necessary under S. 301 of the Succession Act does not arise.8. Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.10. Paragraph 2 of the arbitration agreement shows that they had also to decide that in case the respondent adopted the appellant what should be the respective rights of the parties in the estate. The arbitrators decided that the respondent should adopt the appellant according to Hindu Law within four months before February, 1947, and if the respondent failed so to do within the time above specified the appellant would be the heir and executor of the deceaseds entire property and the respondent would be entitled to Rs. 200 per mensem as maintenance. But if in spite of the respondents readiness to adopt the appellant refused to be adopted within four months, he would not get any rights in the property of the deceased nor would he be the executor. As it was specifically stated in the arbitration agreement that the consequences of the adoption or non-adoption were to be decided by the arbitrators, they rightly laid down what was to happen if the adoption did not take place and also provided that if it was due to the default of the appellant one consequence will follow and if it was the default of the respondent another consequence would follow. The words of the agreement:"In the same way the arbitrators may also decide that in case it is decided that the party No. 2 should adopt the party No. 1 and if that thing is accepted by the party No. 1 and in case the adoption takes place, what shall be the rights of both the parties and how they will stand in respect of the property......"mean that the power to limit the time was implicit because the happening of these events could not be left for a limitless period.11. The courts below have found on the evidence that the appellant was not prepared to be adopted. We have been taken through the evidence and we find no reason to differ from the opinion of the High Court that the appellant was not prepared to be adopted. His attitude in regard to that matter is clear from ground No. 37 of the Grounds of Appeal taken by him in the High Court which was:-"The lower Court erred in holding that Champalal was not within his rights in consenting to get adopted by Mt. Samarathbai within the time fixed by the arbitrators without prejudice to his objections against the award"and the courts have rightly come to that conclusion. In this view of the matter the alternative argument of taking subsequent event into consideration does not arise.12. It was also argued that by making the award the arbitrators had perverted the line of succession. All that the award has stated is that in case the adoption takes place the respondent would receive 1/4 share of the property of the testator and it would form her stridhana. How that has perverted, the line of succession is difficult to understand. | 0[ds]4. In our opinion points nos. 1, 2 and 3 are wholly without substance. The award was made on October 18, 1946, and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award. It has not been shown as to how the filing of the award is barred by limitation.Article 178 of the Limitation Act which was relied upon by the appellant applies to applications made by the parties and not to the filing of the award by the arbitrators.5. The second question that the award required registration and could not be filed by the arbitrators before it was registered is equally without substance. The filing of an unregistered award under S. 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under S. 17 of that Act.That the award required registration was rightly admitted by both parties.It was contended by counsel for the appellant that under S. 21 of the Registration Act and the rules made under S. 22 a description of the property was necessary and as that was supplied through Mithulal who, according to counsel, did not have the necessary authority to do so, the award must be taken to be an incomplete document which could not be registered. The High Court has found that in the circumstances of this case lists were not necessary and therefore anything done by Mithulal whether authorised or not will not affect the legality of the registration. The third point that the First Additional District Judge before whom the application was made for extending the time of making the award had no jurisdiction is also not sustainable. It so happened that the court which had jurisdiction to entertain application for the filing of awards was the same before whom the application under S. 192 of the Succession Act had been filed. If that court was the proper court in which such applications were to be made then no defect can be found in the application being made to that court or that court giving such extension.Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted. | 0 | 3,011 | 721 | ### 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:
made as above the will of my estate. Under this will, I am authorising the said Champalal Ishwardas to execute the same. I have appointed him the executor of this will. Under the said will, the said Champalal alone shall be the full owner of my entire movable and immoveable property and the executor of the will after my death if I adopt him during my lifetime or even if my virtue adopts him (after my death)."The words "under the said will the said Champalal shall be......the executor of the will after my death if I adopt him during my lifetime or even if my wife adopts him after my death" show that the appellant was to become executor after his adoption and as he was not adopted he cannot be the executor and therefore the argument that an executor cannot enter into arbitration does not arise and we do not think it necessary to decide this matter beyond saying that the appellant was not constituted an executor eo nomine but was to be an executor if he was adopted. Similarly the question whether the appellant after accepting the office of an executor had renounced it or a discharge was necessary under S. 301 of the Succession Act does not arise.8. Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.10. Paragraph 2 of the arbitration agreement shows that they had also to decide that in case the respondent adopted the appellant what should be the respective rights of the parties in the estate. The arbitrators decided that the respondent should adopt the appellant according to Hindu Law within four months before February, 1947, and if the respondent failed so to do within the time above specified the appellant would be the heir and executor of the deceaseds entire property and the respondent would be entitled to Rs. 200 per mensem as maintenance. But if in spite of the respondents readiness to adopt the appellant refused to be adopted within four months, he would not get any rights in the property of the deceased nor would he be the executor. As it was specifically stated in the arbitration agreement that the consequences of the adoption or non-adoption were to be decided by the arbitrators, they rightly laid down what was to happen if the adoption did not take place and also provided that if it was due to the default of the appellant one consequence will follow and if it was the default of the respondent another consequence would follow. The words of the agreement:"In the same way the arbitrators may also decide that in case it is decided that the party No. 2 should adopt the party No. 1 and if that thing is accepted by the party No. 1 and in case the adoption takes place, what shall be the rights of both the parties and how they will stand in respect of the property......"mean that the power to limit the time was implicit because the happening of these events could not be left for a limitless period.11. The courts below have found on the evidence that the appellant was not prepared to be adopted. We have been taken through the evidence and we find no reason to differ from the opinion of the High Court that the appellant was not prepared to be adopted. His attitude in regard to that matter is clear from ground No. 37 of the Grounds of Appeal taken by him in the High Court which was:-"The lower Court erred in holding that Champalal was not within his rights in consenting to get adopted by Mt. Samarathbai within the time fixed by the arbitrators without prejudice to his objections against the award"and the courts have rightly come to that conclusion. In this view of the matter the alternative argument of taking subsequent event into consideration does not arise.12. It was also argued that by making the award the arbitrators had perverted the line of succession. All that the award has stated is that in case the adoption takes place the respondent would receive 1/4 share of the property of the testator and it would form her stridhana. How that has perverted, the line of succession is difficult to understand.
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4. In our opinion points nos. 1, 2 and 3 are wholly without substance. The award was made on October 18, 1946, and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award. It has not been shown as to how the filing of the award is barred by limitation.Article 178 of the Limitation Act which was relied upon by the appellant applies to applications made by the parties and not to the filing of the award by the arbitrators.5. The second question that the award required registration and could not be filed by the arbitrators before it was registered is equally without substance. The filing of an unregistered award under S. 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under S. 17 of that Act.That the award required registration was rightly admitted by both parties.It was contended by counsel for the appellant that under S. 21 of the Registration Act and the rules made under S. 22 a description of the property was necessary and as that was supplied through Mithulal who, according to counsel, did not have the necessary authority to do so, the award must be taken to be an incomplete document which could not be registered. The High Court has found that in the circumstances of this case lists were not necessary and therefore anything done by Mithulal whether authorised or not will not affect the legality of the registration. The third point that the First Additional District Judge before whom the application was made for extending the time of making the award had no jurisdiction is also not sustainable. It so happened that the court which had jurisdiction to entertain application for the filing of awards was the same before whom the application under S. 192 of the Succession Act had been filed. If that court was the proper court in which such applications were to be made then no defect can be found in the application being made to that court or that court giving such extension.Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.
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Hukam Chand Etc, Vs. Union Of India & Others(With Connected Appeal) | laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297 (Sixth Edition). 7. The learned Solicitor General has not been able to refer to anything in Section 40, from which power of the Central Government to make retrospective rules may be inferred. In the absence of any such power, the Central Government in our view, acted in excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The Explanation, in our opinion, could not operate retrospectively and would be effective for the future from the date it was added in February 1960. 8. In the case of Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and Central Excise, Cochin, (1970) 2 SCR 830 = (AIR 1970 SC 1950 ) this Court dealt with an explanation which had been added by the Central Government in purported exercise of the power vested under the Central Excises and Salt Act, 1944. Question arose whether the explanation had a retrospective effect. The Court referred in this context to the rule making power of the Central Government under the aforesaid Act and observed:"Dr. Seiyed Muhammad, learned Counsel for the department did not support the impugned demand on the basis of the retrospective effect purported to have been given to the explanation referred to earlier by the notification dated February 16, 1963 (Exh. P-12) for obvious reasons. The rule making authority had not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect. Therefore the retrospective effect purported to be given under Exh. P-12 was beyond the powers of the rule making authority. 9. In the case of Income Tax Officer, Alleppy v. M. C. Ponnoose, (1969) 2 SCC 351 = (AIR 1970 SC 385 ) this Court dealt with a notification dated August 14, 1963 which empowered the revenue officials, including the Tehsildar, to exercise the powers of a tax recovery officer under the Income Tax Act, 1961 in respect of arrears. The notification was given retrospective effect. Question which arose for determination was whether the State Government could invest the Tehsildar with such powers retrospectively. Answering this question in the negative, this Court observed:"The Parliament can delegate its legislative power within the recognized limits. 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 persons or authority exercising subordinate legislature functions cannot make a rule, regulation or bye-law which can operate with retrospective effect. Reference was made in the above cited case to an earlier decision of this Court in B. S. Vadera v. Union of India, (1968) 3 SCR 575 = (AIR 1969 SC 118 ) wherein it had been observed with reference to rules framed under the proviso to Articles 309 of the Constitution that those rules could be made with retrospective operation. Vaderas case was distinguished on the ground that the view expressed therein was based upon the language employed in the proviso to Article 309 that any rules so made shall have effect subject to the provisions of any such Act. It was also observed:"As the Legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule making power under Article 309 can furnish no analogy or parallel to the present case. 10. We are, therefore, of the opinion that the Explanation added to Rule 49 in the present case cannot be given retrospective operation. 11. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made not in conformity with Sec. 40 of the Act. It would appear from the observations on pages 304 of 306 of the Sixth Edition of Craies on Statute Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution. The laying referred to in sub-sec. (3) of Section 40 is of the second category because the above sub-section contemplates that the rule would have effect unless modified or annulled by the Houses of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the Courts from scrutinizing the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government. 12. It has also been submitted by the learned solicitor General that in case this Court finds that the Explanation to Rule 49 could not be given retrospective effect, the appeals may be allowed and the impugned orders about the cancellation of the allotment in favour of the appellants may be set aside. It has also been stated that this Court need not go in these appeals into the question as to whether the allotment in favour of the appellants could be cancelled under some other provision of law. | 1[ds]5. Mr. Mehta on behalf of the appellants in the four appeals has argued in this Court that Rule 49 could not be amended with retrospective effect and that the Explanation added to the rule could not operate from a date prior to that on which is was added as a result of amendment made in February 1960.The view taken by the High Court, according to the learned counsel, was incorrect. As against that, the learned Solicitor General has canvassed for the correctness of the view taken by the High Court and has submitted that the Central Government could give retrospective effect to the Explanation added to Rule 49.In our opinion, the contention advanced by Mr. Mehta is well founded7. The learned Solicitor General has not been able to refer to anything in Section 40, from which power of the Central Government to make retrospective rules may be. In the absence of any such power, the Central Government in our view, acted in excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The Explanation, in our opinion, could not operate retrospectively and would be effective for the future from the date it was added in February 19609. In the case of Income Tax Officer, Alleppy v. M. C. Ponnoose, (1969) 2 SCC 351 = (AIR 1970 SC 385 ) this Court dealt with a notification dated August 14, 1963 which empowered the revenue officials, including the Tehsildar, to exercise the powers of a tax recovery officer under the Income Tax Act, 1961 in respect of arrears. The notification was given retrospective effect. Question which arose for determination was whether the State Government could invest the Tehsildar with such powers retrospectively. Answering this question in the negative, this Court observed:"The Parliament can delegate its legislative power within the recognized limits. 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 persons or authority exercising subordinate legislature functions cannot make a rule, regulation orw which can operate with retrospective effect.Reference was made in the above cited case to an earlier decision of this Court in B. S. Vadera v. Union of India, (1968) 3 SCR 575 = (AIR 1969 SC 118 ) wherein it had been observed with reference to rules framed under the proviso to Articles 309 of the Constitution that those rules could be made with retrospective operation. Vaderas case was distinguished on the ground that the view expressed therein was based upon the language employed in the proviso to Article 309 that any rules so made shall have effect subject to the provisions of any such Act. It was also observed:"As the Legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule making power under Article 309 can furnish no analogy or parallel to the present case.10. We are, therefore, of the opinion that the Explanation added to Rule 49 in the present case cannot be given retrospective operation11. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made not in conformity with Sec. 40 of the Act12. It has also been submitted by the learned solicitor General that in case this Court finds that the Explanation to Rule 49 could not be given retrospective effect, the appeals may be allowed and the impugned orders about the cancellation of the allotment in favour of the appellants may be set aside.It has also been stated that this Court need not go in these appeals into the question as to whether the allotment in favour of the appellants could be cancelled under some other provision of law. | 1 | 2,717 | 797 | ### 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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laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297 (Sixth Edition). 7. The learned Solicitor General has not been able to refer to anything in Section 40, from which power of the Central Government to make retrospective rules may be inferred. In the absence of any such power, the Central Government in our view, acted in excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The Explanation, in our opinion, could not operate retrospectively and would be effective for the future from the date it was added in February 1960. 8. In the case of Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and Central Excise, Cochin, (1970) 2 SCR 830 = (AIR 1970 SC 1950 ) this Court dealt with an explanation which had been added by the Central Government in purported exercise of the power vested under the Central Excises and Salt Act, 1944. Question arose whether the explanation had a retrospective effect. The Court referred in this context to the rule making power of the Central Government under the aforesaid Act and observed:"Dr. Seiyed Muhammad, learned Counsel for the department did not support the impugned demand on the basis of the retrospective effect purported to have been given to the explanation referred to earlier by the notification dated February 16, 1963 (Exh. P-12) for obvious reasons. The rule making authority had not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect. Therefore the retrospective effect purported to be given under Exh. P-12 was beyond the powers of the rule making authority. 9. In the case of Income Tax Officer, Alleppy v. M. C. Ponnoose, (1969) 2 SCC 351 = (AIR 1970 SC 385 ) this Court dealt with a notification dated August 14, 1963 which empowered the revenue officials, including the Tehsildar, to exercise the powers of a tax recovery officer under the Income Tax Act, 1961 in respect of arrears. The notification was given retrospective effect. Question which arose for determination was whether the State Government could invest the Tehsildar with such powers retrospectively. Answering this question in the negative, this Court observed:"The Parliament can delegate its legislative power within the recognized limits. 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 persons or authority exercising subordinate legislature functions cannot make a rule, regulation or bye-law which can operate with retrospective effect. Reference was made in the above cited case to an earlier decision of this Court in B. S. Vadera v. Union of India, (1968) 3 SCR 575 = (AIR 1969 SC 118 ) wherein it had been observed with reference to rules framed under the proviso to Articles 309 of the Constitution that those rules could be made with retrospective operation. Vaderas case was distinguished on the ground that the view expressed therein was based upon the language employed in the proviso to Article 309 that any rules so made shall have effect subject to the provisions of any such Act. It was also observed:"As the Legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule making power under Article 309 can furnish no analogy or parallel to the present case. 10. We are, therefore, of the opinion that the Explanation added to Rule 49 in the present case cannot be given retrospective operation. 11. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made not in conformity with Sec. 40 of the Act. It would appear from the observations on pages 304 of 306 of the Sixth Edition of Craies on Statute Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution. The laying referred to in sub-sec. (3) of Section 40 is of the second category because the above sub-section contemplates that the rule would have effect unless modified or annulled by the Houses of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the Courts from scrutinizing the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government. 12. It has also been submitted by the learned solicitor General that in case this Court finds that the Explanation to Rule 49 could not be given retrospective effect, the appeals may be allowed and the impugned orders about the cancellation of the allotment in favour of the appellants may be set aside. It has also been stated that this Court need not go in these appeals into the question as to whether the allotment in favour of the appellants could be cancelled under some other provision of law.
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1
### Explanation:
5. Mr. Mehta on behalf of the appellants in the four appeals has argued in this Court that Rule 49 could not be amended with retrospective effect and that the Explanation added to the rule could not operate from a date prior to that on which is was added as a result of amendment made in February 1960.The view taken by the High Court, according to the learned counsel, was incorrect. As against that, the learned Solicitor General has canvassed for the correctness of the view taken by the High Court and has submitted that the Central Government could give retrospective effect to the Explanation added to Rule 49.In our opinion, the contention advanced by Mr. Mehta is well founded7. The learned Solicitor General has not been able to refer to anything in Section 40, from which power of the Central Government to make retrospective rules may be. In the absence of any such power, the Central Government in our view, acted in excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The Explanation, in our opinion, could not operate retrospectively and would be effective for the future from the date it was added in February 19609. In the case of Income Tax Officer, Alleppy v. M. C. Ponnoose, (1969) 2 SCC 351 = (AIR 1970 SC 385 ) this Court dealt with a notification dated August 14, 1963 which empowered the revenue officials, including the Tehsildar, to exercise the powers of a tax recovery officer under the Income Tax Act, 1961 in respect of arrears. The notification was given retrospective effect. Question which arose for determination was whether the State Government could invest the Tehsildar with such powers retrospectively. Answering this question in the negative, this Court observed:"The Parliament can delegate its legislative power within the recognized limits. 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 persons or authority exercising subordinate legislature functions cannot make a rule, regulation orw which can operate with retrospective effect.Reference was made in the above cited case to an earlier decision of this Court in B. S. Vadera v. Union of India, (1968) 3 SCR 575 = (AIR 1969 SC 118 ) wherein it had been observed with reference to rules framed under the proviso to Articles 309 of the Constitution that those rules could be made with retrospective operation. Vaderas case was distinguished on the ground that the view expressed therein was based upon the language employed in the proviso to Article 309 that any rules so made shall have effect subject to the provisions of any such Act. It was also observed:"As the Legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule making power under Article 309 can furnish no analogy or parallel to the present case.10. We are, therefore, of the opinion that the Explanation added to Rule 49 in the present case cannot be given retrospective operation11. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made not in conformity with Sec. 40 of the Act12. It has also been submitted by the learned solicitor General that in case this Court finds that the Explanation to Rule 49 could not be given retrospective effect, the appeals may be allowed and the impugned orders about the cancellation of the allotment in favour of the appellants may be set aside.It has also been stated that this Court need not go in these appeals into the question as to whether the allotment in favour of the appellants could be cancelled under some other provision of law.
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Acqua Borewell Pvt. Ltd Vs. Swayam Prabha & Others | number of properties ranging from A1 to A40 in the said suit. The original plaintiffs filed IA No. 1 in OS No. 4709/2019 seeking ex-parte ad-interim injunction qua the suit schedule properties. The learned trial Court initially granted ex-parte injunction restraining the defendants in the suit from alienating and creating any charge and third party interest upon the suit schedule properties to the extent of the plaintiffs share, till the next date of hearing of the interim injunction application. That by order dated 26.09.2019, the learned trial Court dismissed IA No.1 in OS No. 4709/2019 and refused to grant an interim injunction in favour of the plaintiffs, inter alia, holding that some of the suit schedule properties are evidently owned by the firms/trusts/companies which entities have not been made parties to the suit. 2.2 Aggrieved by the order passed by the learned trial Court refusing to grant injunction, one of the plaintiffs in O.S. No. 4709/2019 preferred M.F.A. No. 1638/2020 before the High Court. The other plaintiffs also filed a separate appeal being M.F.A. No. 1849/2020 (CPC). By the impugned common judgment and order, the High Court has partly allowed the said appeals and has modified the order passed by the learned trial Court in the interim injunction application and has directed to issue restraint order qua the defendants against the alienation to the extent of 1/7th share in the total plaint schedule properties till disposal of the case. The High Court has also passed an order insofar as the activity such as construction, improvements, whether fresh or modification, are conducted over the schedule properties, the party doing so shall be doing it at his risk and shall not be entitled to claim equity at the end. 3. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court granting injunction to the extent of 1/7th share in the total plaint schedule properties, the third parties to the suit have preferred the present appeals. 3.1 It is the case on behalf of the appellants that some of the suit properties for which the injunction has been granted, the appellants have right, title or interest on the basis of the development agreement/s and/or otherwise and though they are directly affected by the interim injunction granted by the High Court, they are not made parties to the suit and the injunction has been granted with respect to properties in which the appellants herein claim right, title or interest without hearing them. 3.2 It is also the case on behalf of the appellants that as such the plaintiffs have filed the application/applications to implead the appellants herein as party to the suit contending inter alia, that the appellants are the necessary and proper parties. It is submitted that without disposing of the said application/applications to implead the appellants as necessary and proper parties, the High Court ought not to have granted injunction with respect to properties in which the appellants claim right, title or interest. 3.3 It is submitted that the High Court has failed to appreciate that the learned trial Court passed a reasoned and speaking order while refusing to grant injunction. It is submitted that the learned trial Court specifically observed while refusing to grant injunction that some of the properties are standing in the name of the firms/trusts/companies and admittedly the said entities have not been made parties to the suit. It is submitted that despite the above, the High Court has granted injunction with respect to properties in which the appellants claim right, title or interest, without impleading the appellants and without giving them an opportunity of being heard. 4. Learned counsel appearing on behalf of the original plaintiffs/original appellants before the High Court have supported the impugned common judgment and order passed by the High Court. 5. We have heard Shri K.V. Vishwanathan, learned Senior Advocate appearing for the appellants and Shri Saurabh Kansal, learned Advocate appearing on behalf of the contesting respondent nos. 1,20 & 23. 5.1 At the outset, it is required to be noted that against the suit schedule properties A1 to A40, the appellants herein – third parties to the suit are claiming right, title or interest on the basis of the development agreements or otherwise with respect to Schedule A 6 (Part); Schedule A8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part); Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part); and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that the application/s submitted by the original plaintiffs to implead the appellants herein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed by the original plaintiffs to implead the appellants as defendants to the suit contending inter alia, that they are necessary and proper parties. Therefore, according to the plaintiffs also, the appellants herein (proposed defendants) are necessary and proper parties. Therefore, before granting any injunction with respect to the properties in which the appellants herein (proposed defendants) are claiming right, title or interest on the basis of the development agreements or otherwise they ought to have been given an opportunity of being heard. No injunction could have been granted against them without impleading them as defendants and thereafter without giving them an opportunity of being heard. 6. It is required to be noted that the learned trial Court dismissed the injunction application and refused injunction by observing that some of the properties are evidently owned by the firms/trusts/companies which have not been made parties to the suit. Therefore, the impugned common judgment and order passed by the High Court granting injunction with respect to 1/7th share in the total plaint schedule properties which has been passed without giving an opportunity of being heard to the appellants and without impleading them as party defendants in the suit by the learned trial Court, is unsustainable and deserves to be quashed and set aside. | 1[ds]5.1 At the outset, it is required to be noted that against the suit schedule properties A1 to A40, the appellants herein – third parties to the suit are claiming right, title or interest on the basis of the development agreements or otherwise with respect to Schedule A 6 (Part); Schedule A8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part); Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part); and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that the application/s submitted by the original plaintiffs to implead the appellants herein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed by the original plaintiffs to implead the appellants as defendants to the suit contending inter alia, that they are necessary and proper parties. Therefore, according to the plaintiffs also, the appellants herein (proposed defendants) are necessary and proper parties. Therefore, before granting any injunction with respect to the properties in which the appellants herein (proposed defendants) are claiming right, title or interest on the basis of the development agreements or otherwise they ought to have been given an opportunity of being heard. No injunction could have been granted against them without impleading them as defendants and thereafter without giving them an opportunity of being heard.6. It is required to be noted that the learned trial Court dismissed the injunction application and refused injunction by observing that some of the properties are evidently owned by the firms/trusts/companies which have not been made parties to the suit. Therefore, the impugned common judgment and order passed by the High Court granting injunction with respect to 1/7th share in the total plaint schedule properties which has been passed without giving an opportunity of being heard to the appellants and without impleading them as party defendants in the suit by the learned trial Court, is unsustainable and deserves to be quashed and set aside. | 1 | 1,381 | 423 | ### Instruction:
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number of properties ranging from A1 to A40 in the said suit. The original plaintiffs filed IA No. 1 in OS No. 4709/2019 seeking ex-parte ad-interim injunction qua the suit schedule properties. The learned trial Court initially granted ex-parte injunction restraining the defendants in the suit from alienating and creating any charge and third party interest upon the suit schedule properties to the extent of the plaintiffs share, till the next date of hearing of the interim injunction application. That by order dated 26.09.2019, the learned trial Court dismissed IA No.1 in OS No. 4709/2019 and refused to grant an interim injunction in favour of the plaintiffs, inter alia, holding that some of the suit schedule properties are evidently owned by the firms/trusts/companies which entities have not been made parties to the suit. 2.2 Aggrieved by the order passed by the learned trial Court refusing to grant injunction, one of the plaintiffs in O.S. No. 4709/2019 preferred M.F.A. No. 1638/2020 before the High Court. The other plaintiffs also filed a separate appeal being M.F.A. No. 1849/2020 (CPC). By the impugned common judgment and order, the High Court has partly allowed the said appeals and has modified the order passed by the learned trial Court in the interim injunction application and has directed to issue restraint order qua the defendants against the alienation to the extent of 1/7th share in the total plaint schedule properties till disposal of the case. The High Court has also passed an order insofar as the activity such as construction, improvements, whether fresh or modification, are conducted over the schedule properties, the party doing so shall be doing it at his risk and shall not be entitled to claim equity at the end. 3. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court granting injunction to the extent of 1/7th share in the total plaint schedule properties, the third parties to the suit have preferred the present appeals. 3.1 It is the case on behalf of the appellants that some of the suit properties for which the injunction has been granted, the appellants have right, title or interest on the basis of the development agreement/s and/or otherwise and though they are directly affected by the interim injunction granted by the High Court, they are not made parties to the suit and the injunction has been granted with respect to properties in which the appellants herein claim right, title or interest without hearing them. 3.2 It is also the case on behalf of the appellants that as such the plaintiffs have filed the application/applications to implead the appellants herein as party to the suit contending inter alia, that the appellants are the necessary and proper parties. It is submitted that without disposing of the said application/applications to implead the appellants as necessary and proper parties, the High Court ought not to have granted injunction with respect to properties in which the appellants claim right, title or interest. 3.3 It is submitted that the High Court has failed to appreciate that the learned trial Court passed a reasoned and speaking order while refusing to grant injunction. It is submitted that the learned trial Court specifically observed while refusing to grant injunction that some of the properties are standing in the name of the firms/trusts/companies and admittedly the said entities have not been made parties to the suit. It is submitted that despite the above, the High Court has granted injunction with respect to properties in which the appellants claim right, title or interest, without impleading the appellants and without giving them an opportunity of being heard. 4. Learned counsel appearing on behalf of the original plaintiffs/original appellants before the High Court have supported the impugned common judgment and order passed by the High Court. 5. We have heard Shri K.V. Vishwanathan, learned Senior Advocate appearing for the appellants and Shri Saurabh Kansal, learned Advocate appearing on behalf of the contesting respondent nos. 1,20 & 23. 5.1 At the outset, it is required to be noted that against the suit schedule properties A1 to A40, the appellants herein – third parties to the suit are claiming right, title or interest on the basis of the development agreements or otherwise with respect to Schedule A 6 (Part); Schedule A8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part); Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part); and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that the application/s submitted by the original plaintiffs to implead the appellants herein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed by the original plaintiffs to implead the appellants as defendants to the suit contending inter alia, that they are necessary and proper parties. Therefore, according to the plaintiffs also, the appellants herein (proposed defendants) are necessary and proper parties. Therefore, before granting any injunction with respect to the properties in which the appellants herein (proposed defendants) are claiming right, title or interest on the basis of the development agreements or otherwise they ought to have been given an opportunity of being heard. No injunction could have been granted against them without impleading them as defendants and thereafter without giving them an opportunity of being heard. 6. It is required to be noted that the learned trial Court dismissed the injunction application and refused injunction by observing that some of the properties are evidently owned by the firms/trusts/companies which have not been made parties to the suit. Therefore, the impugned common judgment and order passed by the High Court granting injunction with respect to 1/7th share in the total plaint schedule properties which has been passed without giving an opportunity of being heard to the appellants and without impleading them as party defendants in the suit by the learned trial Court, is unsustainable and deserves to be quashed and set aside.
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5.1 At the outset, it is required to be noted that against the suit schedule properties A1 to A40, the appellants herein – third parties to the suit are claiming right, title or interest on the basis of the development agreements or otherwise with respect to Schedule A 6 (Part); Schedule A8; Schedule A9, A30, A32 (Part); Schedule A1, A4(Part), A6(Part), A11(Part), A14, A24 & A34(Part); Schedule A4(Part), A34(Part); Schedule A35; Schedule A4(Part), A11(Part), A25, A26, A27, A34(Part); and Schedule A3, A28, A32, A37 & A38. It is also not in dispute that the application/s submitted by the original plaintiffs to implead the appellants herein as proposed defendant nos. 20, 21, 26, 18, 19, 25, 22, 23 & 17 is/are pending. The said application/s is/are filed by the original plaintiffs to implead the appellants as defendants to the suit contending inter alia, that they are necessary and proper parties. Therefore, according to the plaintiffs also, the appellants herein (proposed defendants) are necessary and proper parties. Therefore, before granting any injunction with respect to the properties in which the appellants herein (proposed defendants) are claiming right, title or interest on the basis of the development agreements or otherwise they ought to have been given an opportunity of being heard. No injunction could have been granted against them without impleading them as defendants and thereafter without giving them an opportunity of being heard.6. It is required to be noted that the learned trial Court dismissed the injunction application and refused injunction by observing that some of the properties are evidently owned by the firms/trusts/companies which have not been made parties to the suit. Therefore, the impugned common judgment and order passed by the High Court granting injunction with respect to 1/7th share in the total plaint schedule properties which has been passed without giving an opportunity of being heard to the appellants and without impleading them as party defendants in the suit by the learned trial Court, is unsustainable and deserves to be quashed and set aside.
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SEEMA SARKAR Vs. EXECUTIVE OFFICER | against the Chairman or Vice-Chairman of the Board. The Court considered the statutory provisions as applicable to that case i.e., Section 9 of the Rajasthan Municipalities Act, 1959, as amended. It then concluded that there was no indication therein that a right to vote is created in the “nominated members”. In other words, they cannot exercise voting rights.28. In the present case, neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of No Confidence’. It is a well established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right. Further, the mode and manner of election to any post could be different from the scheme for removal of a person from that post, as restated in paragraph 10 of the same reported decision. It reads thus:“10. There is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post.xxx xxx xxx”(emphasis supplied)29. The High Court had also adverted to the decision of the Karnataka High Court in State of Karnataka and Ors. (supra). Even this decision will be of no avail. For, the High Court considered the specific provisions contained in the Karnataka Panchayat Raj Act, 1993 and construed them to mean that they expressly exclude the right to participate in the proceedings and vote on a ‘No Confidence Motion’ against the Adhyaksha or Up-Adhyaksha. The observations in the said decision, therefore, are contextual and in reference to the express provision in the Karnataka Panchayat Raj Act in the form of Sections 120(2), 140(3), 159(2) and 179(3). As aforesaid, the provisions in the Regulation under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No Confidence Motion’. As a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidence Motion’ against the Pramukh or Up-Pramukh, as the case may be.30. A priori, the argument of Mr. Lekhi that the interpretation will offend the principle of ut res magis valeat quam pereat and make Article 243C(5)(b) unworkable, does not commend us. As aforesaid, Article 243C makes no mention about the manner and mode by which the Chairperson of the Panchayat Samiti can be removed by way of a ‘No Confidence Motion’. Whereas, the State Legislature has been empowered to make a law on that subject. As is noticed from the stated Regulation, the same explicitly deals with the mechanism for moving a ‘No Confidence Motion’ against the Pramukh or Up-Pramukh, as the case may be; and more particularly, as per the rules framed under the said Regulation. The validity of the said provisions has not been put in issue. In such a situation, the argument regarding constitutional silence or its efficacy need not detain us. For the same reason, we do not wish to dilate on the exposition in Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors.((2017) 10 SCC 1 (page 516519)), Bhanumati and Ors. Vs. State of Uttar Pradesh through its Principal Secretary and Ors. ((2010) 12 SCC 1 ( para 51)), Usha Bharti Vs. State of Uttar Pradesh and Ors.((2014) 7 SCC 663 ( para 34)) and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Ors.((1991) Supp.(1) SCC 600 (para 255)).31. Learned ASG has invited our attention also to the decision in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and Ors. ((2015) 8 SCC 1 ( para 20)), dealing with the question of permissibility of removal of the Chairperson/elected office bearers by motion of no confidence. The exposition in the said decision, that if a person has been elected to an office through democratic process and when such person loses the confidence of the representatives who elected him, then those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997, to which we have elaborately adverted hitherto.32. For the same reason, even the decision in Pratap Chandra Mehta Vs. State Bar Council of Madhya Pradesh and Ors.((2011) 9 SCC 573 ( para 22,26,46)) will be of no avail for interpreting or applying the provisions in the Regulation and the Rules under consideration. Our attention was also invited to the decision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly and Ors. ((1992) 4 SCC 80 ( para 4)) Emphasis was placed on the observations in paragraph 4 of this decision. As a matter of fact, the dictum in this decision would reinforce the view that we have taken, as it is observed in the said paragraph that a provision in the statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable to projecting the views of the electorate. We have already noted that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representatives (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidence Motion’ has been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field. | 1[ds]13. The chairperson of a Panchayat at intermediate level is required to be elected by, and from amongst, the elected members thereof. On a conjoint reading of the provisions referred to above, it is crystal clear that there is marked distinction between the member of the Panchayat chosen by direct election from the territorial constituencies in the Panchayat area referred to in clause (2) vis-a-vis other persons referred to in sub-clauses (a) to (d) of clause (3) of Article 243C, who may also represent as per the law made by the State Legislature. Thus understood, there is little doubt that the election of chairperson is by the former category of the members of the Panchayat, namely, directly elected from the territorial constituencies in the Panchayat area and one from amongst them is then elected as a chairperson. Notably, there is no express provision in the Constitution dealing with the removal of a chairperson of the Panchayat Samiti.14. Taking cue from the absence of such a provision in the Constitution, it was argued by the learned ASG that it being a case of constitutional silence by interpretative process, the Court must hold that the MP, not being directly elected from the territorial constituencies in the Panchayat area and only a representative in the Panchayat Samiti by virtue of law made in terms of Article 243C(3), is neither entitled to participate in a special meeting concerning a ‘No Confidencenor eligible to vote thereat. For, only the body of members directly elected from the territorial constituencies in the Panchayat area which had elected the Chairperson/Pramukh, would alone be competent to vote on a ‘No ConfidenceThis argument is not wholly accurate. In our opinion, that approach may become necessary only if the legislature of the State also had chosen to remain silent by not enacting any law on the subject of removal of the Pramukh or Up-Pramukh of the Panchayat Samiti. Indisputably, however, a law on the said subject is already in place in the form of the Regulation as also the Rules concerning Panchayat administration. The Constitution itself enables the State Legislature to make a law on the subject of composition of Panchayats, including regarding election of the Pramukh, subject to the provisions contained in Part-IX of the Constitution. The law, as made in the form of the Regulation, is not the subject matter of challenge before us either on the ground of being in excess of legislative competence or transcending the sphere of matters referred to in Part-IX of the Constitution.Even this provision seems to be in conformity with the letter and spirit of Article 243C. On a plain reading of this provision, it is noticed that the election of the Pramukh and Up-Pramukh isthe elected members of the Panchayat Samiti and the one who is elected as such, isEven the expression used in Article 243C(5)(b) isby, and from amongst, the elected membersThis dispensation is in consonance with the constitutional scheme of democratic decentralization and self-Government on the principle of grass-root democracy. In that sense, the other members of the Panchayat Samiti (other than those chosen by direct election from the territorial constituencies in the Panchayat area) referred to in Article 243C(3) have no say in the matter of electing the Pramukh or Up-Pramukh of the Panchayat Samiti, though they may generally have the right to vote in the meeting of the Panchayat Samiti on other matters.19. Sections 107 and 112 are a facsimile of Article 243C and also within the framework provided therein. Although the other member(s) who have been given representation in the Panchayat Samiti have no say in the election of the Pramukh or Up-Pramukh of the Panchayat Samiti, it does not follow that they are not eligible to remain present and vote in the special meeting regarding the motion of no confidence against the Pramukh or Up-Pramukh of the Panchayat Samiti. As aforementioned, the Constitution is completely silent on the subject of removal of the Pramukh or the Up-Pramukh of the Panchayat Samiti, including regarding the manner in which a ‘Motion of Noagainst them could be moved and carried forward.Thus, an unambiguous provision has been made in the Regulation regarding the ‘No Confidenceagainst the Pramukh or Up-Pramukh of the Panchayat Samiti. The validity of the said provision is not the subject matter of this appeal. As a result, we do not wish to dilate on the argument which may indirectly, if not directly, question the validity of the provision. Suffice is to observe that we are not dealing with a case where the Regulation made by the State legislature is also silent on the subject of motion of no confidence or removal of Pramukh or Up-Pramukh of the Panchayat Samiti. The provision is explicit as to who can move the motion and the manner in which the same is required to be carried forward to its logical end. As per this provision, the other members having representation on the Panchayat Samiti, who are not directly elected from the territorial constituencies in the Panchayat area have no right to vote during the election of the Pramukh or Up-Pramukh of the Panchayat Samiti, it does not follow that they are not or cease to be members of the Panchayat Samiti. Whereas, in terms of Section 107 which specifies the composition of the Panchayat Samiti, they are plainly recognized as members of the Panchayat Samiti during the relevant period. Those persons may not be directly elected from the territorial constituencies in the Panchayat area but nevertheless, areTo put it differently, the provisions in the Regulation and the Rules distinctly deal with the manner in which a motion of ‘Noshould be moved and carried forward to its logical end. In that sense, the central issue is about the purport of the mechanism provided in the Regulation and the Rules on the subject of ‘No ConfidenceFrom the legislative scheme it is noticed that as and when the special meeting to consider the ‘No Confidenceproceeds, Section 117(2) mandates that the motion may be treated as carried out only if a majority of not less than two-thirds of theof members of the Panchayat Samiti vote in favour of removal of the Pramukh or Up-Pramukh, as the case may be. A similar position is restated in Rule 21 of the Rules.24. Indeed, the provisions in the Regulation do not provide for the quorum of the special meeting. That is, however, prescribed in the form of Rule 9. Rule 9(3)(b) stipulates that two-thirds of theof a Panchayat Samiti shall be a sufficient quorum for a special meeting of the Panchayat Samiti in reference to Section 117(1) of the Regulation to move a motion of no confidence against the Pramukh or Up-Pramukh. Thus, the quorum specified is not less than two-thirds of the. The emphasis is on the expression, which includes the other (ex-officio) member(s) referred to in Section 107(3) of the Regulation having representation on the Panchayat Samiti and not limited to members chosen by direct election from territorial constituencies in the Panchayat area as referred to in Section 107(2) of the Regulation. Thus understood, all members of the Panchayat Samiti are expected to remain present and participate in the special meeting and the quorum of the meeting is to be determined on the basis ofof members in the Panchayatwould depend on the legislative scheme and intent manifest from the express provisions permitting them to do so. The usefulness of their presence at such a special meeting, to consider the motion of no confidence, cannot and need not be speculated. The governing provisions predicate that the special meeting must be attended by not less than two-thirds of theof the Panchayat Samiti and the ‘No Confidencemust be carried out by not less than two- thirds of theof members of the Panchayat Samiti present and voting. This is the twin requirement. If so, the ‘No Confidenceis required to be considered in the special meeting of the Panchayat Samiti as a whole and not limited to members directly elected from the territorial constituencies in the Panchayat area. Thus understood, the total membership of the Little Andaman Samiti being six, two- thirds thereof would be four. If the members present at the scheduled place and time of the meeting were only three, obviously the Executive Officer was justified in dissolving the meeting for want ofthe language of Section 117 of the Regulation envisages that the motion is required to be carried by a majority of not less two-thirds of theof members of the Panchayat Samiti present and voting. A similar mandate flows from Rule 9 read with Rule 21 of the Rules. The question is whether the law as enacted in the form of Section 117 of the Regulation, in any way, deviates from the scheme of Part-IX of the Constitution. Our answer is an emphaticThe fact that Article 243C(5)(b) postulates that the chairperson of the Panchayat Samiti at the intermediate level shall be electedby, and from amongst, the elected membersthereof, it does not follow that the process of removal of such chairperson should be limited to voting by the elected members. The law on the removal of the Pramukh or Up-Pramukh by means of ‘No Confidencehas been enacted by the State Legislature. That permitsthe members of the Panchayat Samiti to participate in the discussion and vote on the motion of no confidence. On conjoint reading of Section 117, Rule 9(3)(b) and also Rule 21 of the Rules, in our opinion, they, in no way, exclude any member of the Panchayat Samiti muchless the members referred to in Section 107(3) of the Regulation. Not even by necessary implication. Taking any other view would result in re-writing of the provisions to read as - the motion of no confidence must be carried out by a majority of not less than two-thirds of the total number ofrs of the Panchayat Samiti mentioned in Section 107(2), present and voting. We must presume that the State Legislature was conscious of the marked distinction between the category of members constituting the Panchayat Samiti. As is evident from Section 107(2), it refers to a category of persons chosen by direct election from the territorial constituencies, in contradistinction to the other category of persons mentioned in Section 107(3), the constituent of the Panchayat Samiti. If the legislature had intended to exclude the latter category from the process of ‘No Confidenceit would have expressly limited it to only the elected members [former category ascribable to Section 107(2)] of the Panchayat Samiti, as is done at the stage of election of the chairperson. Whereas, the provision makes it incumbent that not less than two-thirds of theof members of the Panchayat Samiti must participate and vote. This is the legislative intent which cannot be whittled down by some overstretched interpretative process including by relying on the common law principle that only the body of persons, who had elected the Pramukh or Up- Pramukh, alone can initiate such a process.27. The Division Bench of the High Court relied upon the decision in Ramesh Mehta (supra). In that case, this Court was called upon to answer whether, in counting theon the Municipal Board in terms of Rule 3(9) of the Rajasthan Municipalities (Motion of No-confidence against the Chairman or Vice-Chairman) Rules, 1974,ve to be taken into consideration. For answering that question, the Court adverted to Article 243R, which deals with the composition of municipalities. The dispensation prescribed with regard to Panchayats in Article 243C is somewhat different from the one specified in Article 243R for Municipalities. As regards the Panchayats, in terms of Article 243C(3), only persons referred to in sub-clauses (a) to (d) thereof, can represent in the Panchayat Samiti as per the law made by the State Legislature in that behalf. The category of persons referred to in the said sub-clauses are all directly elected at different levels - be it Panchayat or the House of the People and the members of the legislative assembly of the State or the Council of States and the members of the legislative council of the State. Whereas, in the composition of Municipalities, persons having special knowledge or experience in municipal administration can also be nominated, who obviously may not be electedrepresentatives. The latter, therefore, has been expressly denuded of a right to vote in the meetings of the Municipalities, as per the proviso to Article 243R(2). Similar exclusion is not made in respect of the other categories of members of the Municipality referred to in sub-clauses (ii) to (iv) of Article 243R(2)(a). In short, the question considered in the said case was very specific as to whether the voting rights of thein a Municipal Board can be reckoned for computing a majority required for a motion of no confidence against the Chairman or Vice-Chairman of the Board. The Court considered the statutory provisions as applicable to that case i.e., Section 9 of the Rajasthan Municipalities Act, 1959, as amended. It then concluded that there was no indication therein that a right to vote is created in the. In other words, they cannot exercise voting rights.28. In the present case, neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of NoIt is a well established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right. Further, the mode and manner of election to any post could be different from the scheme for removal of a person from that post, as restated in paragraph 10 of the same reported decision. It readsThere is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post.xxx xxx. The High Court had also adverted to the decision of the Karnataka High Court in State of Karnataka and Ors. (supra). Even this decision will be of no avail. For, the High Court considered the specific provisions contained in the Karnataka Panchayat Raj Act, 1993 and construed them to mean that they expressly exclude the right to participate in the proceedings and vote on a ‘No Confidenceagainst the Adhyaksha or Up-Adhyaksha. The observations in the said decision, therefore, are contextual and in reference to the express provision in the Karnataka Panchayat Raj Act in the form of Sections 120(2), 140(3), 159(2) and 179(3). As aforesaid, the provisions in the Regulation under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No ConfidenceAs a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidenceagainst the Pramukh or Up-Pramukh, as the case may be.30. A priori, the argument of Mr. Lekhi that the interpretation will offend the principle of ut res magis valeat quam pereat and make Article 243C(5)(b) unworkable, does not commend us. As aforesaid, Article 243C makes no mention about the manner and mode by which the Chairperson of the Panchayat Samiti can be removed by way of a ‘No ConfidenceWhereas, the State Legislature has been empowered to make a law on that subject. As is noticed from the stated Regulation, the same explicitly deals with the mechanism for moving a ‘No Confidenceagainst the Pramukh or Up-Pramukh, as the case may be; and more particularly, as per the rules framed under the said Regulation. The validity of the said provisions has not been put in issue. In such a situation, the argument regarding constitutional silence or its efficacy need not detain us. For the same reason, we do not wish to dilate on the exposition in Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors.((2017) 10 SCC 1 (pageBhanumati and Ors. Vs. State of Uttar Pradesh through its Principal Secretary and Ors. ((2010) 12 SCC 1 ( para 51)), Usha Bharti Vs. State of Uttar Pradesh and Ors.((2014) 7 SCC 663 ( para 34)) and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Ors.((1991) Supp.(1) SCC 600 (para 255)).31. Learned ASG has invited our attention also to the decision in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and Ors. ((2015) 8 SCC 1 ( para 20)), dealing with the question of permissibility of removal of the Chairperson/elected office bearers by motion of no confidence. The exposition in the said decision, that if a person has been elected to an office through democratic process and when such person loses the confidence of the representatives who elected him, then those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997, to which we have elaborately adverted hitherto.32. For the same reason, even the decision in Pratap Chandra Mehta Vs. State Bar Council of Madhya Pradesh and Ors.((2011) 9 SCC 573 ( para 22,26,46)) will be of no avail for interpreting or applying the provisions in the Regulation and the Rules under consideration. Our attention was also invited to the decision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly and Ors. ((1992) 4 SCC 80 ( para 4)) Emphasis was placed on the observations in paragraph 4 of this decision. As a matter of fact, the dictum in this decision would reinforce the view that we have taken, as it is observed in the said paragraph that a provision in the statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable to projecting the views of the electorate. We have already noted that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representatives (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidencehas been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field. | 1 | 9,340 | 3,529 | ### 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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against the Chairman or Vice-Chairman of the Board. The Court considered the statutory provisions as applicable to that case i.e., Section 9 of the Rajasthan Municipalities Act, 1959, as amended. It then concluded that there was no indication therein that a right to vote is created in the “nominated members”. In other words, they cannot exercise voting rights.28. In the present case, neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of No Confidence’. It is a well established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right. Further, the mode and manner of election to any post could be different from the scheme for removal of a person from that post, as restated in paragraph 10 of the same reported decision. It reads thus:“10. There is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post.xxx xxx xxx”(emphasis supplied)29. The High Court had also adverted to the decision of the Karnataka High Court in State of Karnataka and Ors. (supra). Even this decision will be of no avail. For, the High Court considered the specific provisions contained in the Karnataka Panchayat Raj Act, 1993 and construed them to mean that they expressly exclude the right to participate in the proceedings and vote on a ‘No Confidence Motion’ against the Adhyaksha or Up-Adhyaksha. The observations in the said decision, therefore, are contextual and in reference to the express provision in the Karnataka Panchayat Raj Act in the form of Sections 120(2), 140(3), 159(2) and 179(3). As aforesaid, the provisions in the Regulation under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No Confidence Motion’. As a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidence Motion’ against the Pramukh or Up-Pramukh, as the case may be.30. A priori, the argument of Mr. Lekhi that the interpretation will offend the principle of ut res magis valeat quam pereat and make Article 243C(5)(b) unworkable, does not commend us. As aforesaid, Article 243C makes no mention about the manner and mode by which the Chairperson of the Panchayat Samiti can be removed by way of a ‘No Confidence Motion’. Whereas, the State Legislature has been empowered to make a law on that subject. As is noticed from the stated Regulation, the same explicitly deals with the mechanism for moving a ‘No Confidence Motion’ against the Pramukh or Up-Pramukh, as the case may be; and more particularly, as per the rules framed under the said Regulation. The validity of the said provisions has not been put in issue. In such a situation, the argument regarding constitutional silence or its efficacy need not detain us. For the same reason, we do not wish to dilate on the exposition in Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors.((2017) 10 SCC 1 (page 516519)), Bhanumati and Ors. Vs. State of Uttar Pradesh through its Principal Secretary and Ors. ((2010) 12 SCC 1 ( para 51)), Usha Bharti Vs. State of Uttar Pradesh and Ors.((2014) 7 SCC 663 ( para 34)) and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Ors.((1991) Supp.(1) SCC 600 (para 255)).31. Learned ASG has invited our attention also to the decision in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and Ors. ((2015) 8 SCC 1 ( para 20)), dealing with the question of permissibility of removal of the Chairperson/elected office bearers by motion of no confidence. The exposition in the said decision, that if a person has been elected to an office through democratic process and when such person loses the confidence of the representatives who elected him, then those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997, to which we have elaborately adverted hitherto.32. For the same reason, even the decision in Pratap Chandra Mehta Vs. State Bar Council of Madhya Pradesh and Ors.((2011) 9 SCC 573 ( para 22,26,46)) will be of no avail for interpreting or applying the provisions in the Regulation and the Rules under consideration. Our attention was also invited to the decision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly and Ors. ((1992) 4 SCC 80 ( para 4)) Emphasis was placed on the observations in paragraph 4 of this decision. As a matter of fact, the dictum in this decision would reinforce the view that we have taken, as it is observed in the said paragraph that a provision in the statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable to projecting the views of the electorate. We have already noted that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representatives (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidence Motion’ has been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field.
### Response:
1
### Explanation:
a Municipal Board can be reckoned for computing a majority required for a motion of no confidence against the Chairman or Vice-Chairman of the Board. The Court considered the statutory provisions as applicable to that case i.e., Section 9 of the Rajasthan Municipalities Act, 1959, as amended. It then concluded that there was no indication therein that a right to vote is created in the. In other words, they cannot exercise voting rights.28. In the present case, neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of NoIt is a well established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right. Further, the mode and manner of election to any post could be different from the scheme for removal of a person from that post, as restated in paragraph 10 of the same reported decision. It readsThere is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post.xxx xxx. The High Court had also adverted to the decision of the Karnataka High Court in State of Karnataka and Ors. (supra). Even this decision will be of no avail. For, the High Court considered the specific provisions contained in the Karnataka Panchayat Raj Act, 1993 and construed them to mean that they expressly exclude the right to participate in the proceedings and vote on a ‘No Confidenceagainst the Adhyaksha or Up-Adhyaksha. The observations in the said decision, therefore, are contextual and in reference to the express provision in the Karnataka Panchayat Raj Act in the form of Sections 120(2), 140(3), 159(2) and 179(3). As aforesaid, the provisions in the Regulation under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No ConfidenceAs a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidenceagainst the Pramukh or Up-Pramukh, as the case may be.30. A priori, the argument of Mr. Lekhi that the interpretation will offend the principle of ut res magis valeat quam pereat and make Article 243C(5)(b) unworkable, does not commend us. As aforesaid, Article 243C makes no mention about the manner and mode by which the Chairperson of the Panchayat Samiti can be removed by way of a ‘No ConfidenceWhereas, the State Legislature has been empowered to make a law on that subject. As is noticed from the stated Regulation, the same explicitly deals with the mechanism for moving a ‘No Confidenceagainst the Pramukh or Up-Pramukh, as the case may be; and more particularly, as per the rules framed under the said Regulation. The validity of the said provisions has not been put in issue. In such a situation, the argument regarding constitutional silence or its efficacy need not detain us. For the same reason, we do not wish to dilate on the exposition in Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors.((2017) 10 SCC 1 (pageBhanumati and Ors. Vs. State of Uttar Pradesh through its Principal Secretary and Ors. ((2010) 12 SCC 1 ( para 51)), Usha Bharti Vs. State of Uttar Pradesh and Ors.((2014) 7 SCC 663 ( para 34)) and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Ors.((1991) Supp.(1) SCC 600 (para 255)).31. Learned ASG has invited our attention also to the decision in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and Ors. ((2015) 8 SCC 1 ( para 20)), dealing with the question of permissibility of removal of the Chairperson/elected office bearers by motion of no confidence. The exposition in the said decision, that if a person has been elected to an office through democratic process and when such person loses the confidence of the representatives who elected him, then those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997, to which we have elaborately adverted hitherto.32. For the same reason, even the decision in Pratap Chandra Mehta Vs. State Bar Council of Madhya Pradesh and Ors.((2011) 9 SCC 573 ( para 22,26,46)) will be of no avail for interpreting or applying the provisions in the Regulation and the Rules under consideration. Our attention was also invited to the decision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly and Ors. ((1992) 4 SCC 80 ( para 4)) Emphasis was placed on the observations in paragraph 4 of this decision. As a matter of fact, the dictum in this decision would reinforce the view that we have taken, as it is observed in the said paragraph that a provision in the statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable to projecting the views of the electorate. We have already noted that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representatives (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidencehas been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field.
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Vesa Holdings P. Ltd. & Another Vs. State of Kerala & Others | it is liable to be quashed. It is his further contention that the allegation in the complaint does not disclose the commission of offence of cheating and only discloses the civil dispute at best and the complaint is nothing but an abuse of process to harass and extort money from the appellants and the High Court erroneously refused to quash the same. In support of submissions he relied on the following decisions – Uma Shankar Gopalika Vs. State of Bihar and Another [(2005) 10 SCC 336] ; All Cargo Movers (India) Private Limited and others Vs. Dhanesh Badarmal Jain and Another [(2007) 14 SCC 776] ; and V.Y. Jose and Another Vs. State of Gujarat and another [(2009)3 SCC 78] . 4. Per contra the learned counsel appearing for respondent No.3 contended that there is no merit in the contention of the appellants that the FIR discloses only a civil case or that there is no allegation making out the criminal offence of cheating. It is his further contention that the facts in the present case may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the complainant that by itself cannot be a ground to quash the criminal proceedings. In support of his submission he relied on the decision of this Court in Vijayander Kumar and others Vs. State of Rajasthan and another [(2014) 3 SCC 389] 5. We also heard the learned counsel for the State namely respondent Nos. 1 and 2. 6. We have been taken through the complaint petition in its entirety. The letter dated 6.8.2008 contains the offer of the appellants as well as the acceptance made by 3rd respondent, and it reads thus : August 6, 2008 Mr. K.G.S. Nair Keezhoot, Changanasserry Kerala. Dear Sir, Sub: Settlement of IIBI dues at Rs.8.25 Crores. Please refer to the discussion we had on the above subject. As discussed we are agreeable to pay you a lump sum amount of Rs. 75 lacs towards consultancy fee for the above settlement, out of this amount Rs.5 lacs will be paid upfront for out of pocket expenses and the balance amount Rs.70 lacs will be paid on completion of the assignment. We enclose herewith a cheque bearing number 47025 for Rs.30,00,000 (Thirty lacs only) dated 06.08.2008 drawn on HDFC Bank Ltd, which as agreed, this cheque should be presented to bank only after obtaining acceptance letter from IIBI on or before 30th October 2008 or otherwise the cheque should be returned to us. Please note that company should be informed before presenting the said cheque. If it is agreeable you may return the duplicate of this letter, duly signed in token of acceptance of the offer. Thanking you, Yours faithfully, For Vesa Holdings Private Limited Director I Accord my consent to this assignment. (K.G.S. Nair) 7. It is also not in dispute that the IIBI did not issue any acceptance letter on or before 30.10.2008 with regard to the settlement of disputes of the appellant company. The 3rd respondent also did not present the cheque dated 6.8.2008 issued by the appellant company for encashing a sum of Rs.30 lakhs. Due to the efforts of the appellant company IIBI finally agreed and issued letter of acceptance dated 5.1.2009. One year later, the 3rd respondent sent a letter dated 6.3.2010 to the appellant company demanding the balance amount of Rs.70 lakhs towards the consultancy fee. No allegation whatsoever was made against the appellants herein in the said letter. It was only mentioned in it that the consultation fee remains unpaid and the company is delaying the payment on one pretext or the other. In this context it is relevant to point out that after the expiry of the validity period of the cheque dated 6.8.2008, the 3rd respondent did not ask for re-issue of the same. 8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. 9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings. | 1[ds]8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceedingIn the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings. | 1 | 1,839 | 355 | ### 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:
it is liable to be quashed. It is his further contention that the allegation in the complaint does not disclose the commission of offence of cheating and only discloses the civil dispute at best and the complaint is nothing but an abuse of process to harass and extort money from the appellants and the High Court erroneously refused to quash the same. In support of submissions he relied on the following decisions – Uma Shankar Gopalika Vs. State of Bihar and Another [(2005) 10 SCC 336] ; All Cargo Movers (India) Private Limited and others Vs. Dhanesh Badarmal Jain and Another [(2007) 14 SCC 776] ; and V.Y. Jose and Another Vs. State of Gujarat and another [(2009)3 SCC 78] . 4. Per contra the learned counsel appearing for respondent No.3 contended that there is no merit in the contention of the appellants that the FIR discloses only a civil case or that there is no allegation making out the criminal offence of cheating. It is his further contention that the facts in the present case may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the complainant that by itself cannot be a ground to quash the criminal proceedings. In support of his submission he relied on the decision of this Court in Vijayander Kumar and others Vs. State of Rajasthan and another [(2014) 3 SCC 389] 5. We also heard the learned counsel for the State namely respondent Nos. 1 and 2. 6. We have been taken through the complaint petition in its entirety. The letter dated 6.8.2008 contains the offer of the appellants as well as the acceptance made by 3rd respondent, and it reads thus : August 6, 2008 Mr. K.G.S. Nair Keezhoot, Changanasserry Kerala. Dear Sir, Sub: Settlement of IIBI dues at Rs.8.25 Crores. Please refer to the discussion we had on the above subject. As discussed we are agreeable to pay you a lump sum amount of Rs. 75 lacs towards consultancy fee for the above settlement, out of this amount Rs.5 lacs will be paid upfront for out of pocket expenses and the balance amount Rs.70 lacs will be paid on completion of the assignment. We enclose herewith a cheque bearing number 47025 for Rs.30,00,000 (Thirty lacs only) dated 06.08.2008 drawn on HDFC Bank Ltd, which as agreed, this cheque should be presented to bank only after obtaining acceptance letter from IIBI on or before 30th October 2008 or otherwise the cheque should be returned to us. Please note that company should be informed before presenting the said cheque. If it is agreeable you may return the duplicate of this letter, duly signed in token of acceptance of the offer. Thanking you, Yours faithfully, For Vesa Holdings Private Limited Director I Accord my consent to this assignment. (K.G.S. Nair) 7. It is also not in dispute that the IIBI did not issue any acceptance letter on or before 30.10.2008 with regard to the settlement of disputes of the appellant company. The 3rd respondent also did not present the cheque dated 6.8.2008 issued by the appellant company for encashing a sum of Rs.30 lakhs. Due to the efforts of the appellant company IIBI finally agreed and issued letter of acceptance dated 5.1.2009. One year later, the 3rd respondent sent a letter dated 6.3.2010 to the appellant company demanding the balance amount of Rs.70 lakhs towards the consultancy fee. No allegation whatsoever was made against the appellants herein in the said letter. It was only mentioned in it that the consultation fee remains unpaid and the company is delaying the payment on one pretext or the other. In this context it is relevant to point out that after the expiry of the validity period of the cheque dated 6.8.2008, the 3rd respondent did not ask for re-issue of the same. 8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. 9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.
### Response:
1
### Explanation:
8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceedingIn the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.
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M/S. ORIENTAL KURIES LTD. REP. BY ITS CHAIRMAN P. D. JOSE Vs. LISSA | contractual obligation, and not a promise to repay an existing debt. 10. We do not agree with the view expressed by the division bench. When a prized subscriber is allowed to draw the chit amount, which is in the nature of a grant of a loan to him from the common fund in the hands of the foreman, with the concessional facility of effecting re-payment in installments; this is subject to the stipulation that the concession is liable to be withdrawn in the event of default being committed in payment of any of the installments. The chit subscriber at the time of subscription, incurs a debt which is payable in installments. If a subscriber is permitted to withdraw the collected sum on his turn, without being bound to pay the future installments, it would jeopardize the interest of all other subscribers, and the entire mechanism of the chit fund system would collapse. 11. A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an installment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount. Section 32 of the 1982 Act empowers the foreman to recover the consolidated payment of all future subscriptions forthwith in the case of a default. Chapter V of the Chit Funds Act, 1982 prescribes the rights and duties of prized subscribers. Section 31 to 33 in Chapter V read as follows : 31. Prized subscriber to furnish security.— Every prized subscriber shall, if he has not offered to deduct the amount of all future subscriptions from the prize amount due to him, furnish, and a foreman shall take, sufficient security for the due payment of all future subscriptions and, if the foreman is a prized subscriber, he shall give security for the due payment of all the future subscriptions to the satisfaction of the Registrar. 32. Prized subscriber to pay subscriptions regularly. — Every prized subscriber shall pay his subscriptions regularly on the dates and times and at the place mentioned in the chit agreement and, on his failure to do so, he shall be liable to make a consolidated payment of all the future subscriptions forthwith. 33. Foreman to demand future subscriptions by written notice.— A foreman shall not be entitled to claim a consolidated payment from a defaulting prized subscriber under Section 32 unless he makes a demand to that effect in writing. (2) Where a dispute is raised under this Act by a foreman for a consolidated payment of future subscriptions from a defaulting prized subscriber and if the subscriber pays to the foreman on or before the date to which the dispute is posted for hearing the arrears of subscriptions till that date together with the interest thereon at the rate provided for in the chit agreement and the cost of adjudication of the dispute, the Registrar or his nominee hearing the dispute shall, notwithstanding any contract to the contrary, make an order directing the subscriber to pay to the foreman the future subscriptions on or before the dates on which they fall due, and that, in case of any default of such payments by the subscriber, the foreman shall be at liberty to realise, in execution of that order, all future subscriptions and interest together with the costs, if any, less the amount, if any, already paid by the subscriber in respect thereof: Provided that if any such dispute is on a promissory note, no order shall be passed under this sub¬section unless such promissory note expressly states that the amount due under the promissory note is towards the payment of subscriptions to the chit. (3) Any person who holds any interest in the property furnished as security or part thereof, shall be entitled to make the payment under sub¬section (2). (4) All consolidated payments of future subscriptions realised by a foreman shall be deposited by him in an approved bank mentioned in the chit agreement before the date of the succeeding instalment and the amount so deposited shall not be withdrawn except for payment of future subscriptions. (5) Where any property is obtained as security in lieu of the consolidated payment of future subscriptions, it shall remain as security for the due payment of future subscriptions. (emphasis supplied) 12. The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the Chit Fund. Such a provision would not amount to a penalty. 13. The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest. 14. The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund. Without punctual payments, the system would become unworkable, and the foreman would not be in a position to discharge his obligations to the other members of the chit fund. 15. In view of the aforesaid discussion, the relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum. | 1[ds]8. Where a contract provides for payment of money in installments, and contains a stipulation that on default being committed in paying any of the installments, the whole sum shall become payable at once, such a stipulation would not be in the nature of a penalty9. The division bench in the impugned Judgment dated 15.01.2009, held that by entering into a chitty agreement, a debt is not created at once by the subscriber with respect to the amount of all the future installments. The chitty agreement embodies a promise to pay and discharge a contractual obligation, and not a promise to repay an existing debt10. We do not agree with the view expressed by the division bench. When a prized subscriber is allowed to draw the chit amount, which is in the nature of a grant of a loan to him from the common fund in the hands of the foreman, with the concessional facility of effecting re-payment in installments; this is subject to the stipulation that the concession is liable to be withdrawn in the event of default being committed in payment of any of the installmentsThe chit subscriber at the time of subscription, incurs a debt which is payable in installments. If a subscriber is permitted to withdraw the collected sum on his turn, without being bound to pay the future installments, it would jeopardize the interest of all other subscribers, and the entire mechanism of the chit fund system would collapse11. A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an installment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount12. The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the Chit Fund. Such a provision would not amount to a penalty13. The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest14. The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund. Without punctual payments, the system would become unworkable, and the foreman would not be in a position to discharge his obligations to the other members of the chit fund15. In view of the aforesaid discussion, the relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum. | 1 | 3,691 | 612 | ### 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:
contractual obligation, and not a promise to repay an existing debt. 10. We do not agree with the view expressed by the division bench. When a prized subscriber is allowed to draw the chit amount, which is in the nature of a grant of a loan to him from the common fund in the hands of the foreman, with the concessional facility of effecting re-payment in installments; this is subject to the stipulation that the concession is liable to be withdrawn in the event of default being committed in payment of any of the installments. The chit subscriber at the time of subscription, incurs a debt which is payable in installments. If a subscriber is permitted to withdraw the collected sum on his turn, without being bound to pay the future installments, it would jeopardize the interest of all other subscribers, and the entire mechanism of the chit fund system would collapse. 11. A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an installment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount. Section 32 of the 1982 Act empowers the foreman to recover the consolidated payment of all future subscriptions forthwith in the case of a default. Chapter V of the Chit Funds Act, 1982 prescribes the rights and duties of prized subscribers. Section 31 to 33 in Chapter V read as follows : 31. Prized subscriber to furnish security.— Every prized subscriber shall, if he has not offered to deduct the amount of all future subscriptions from the prize amount due to him, furnish, and a foreman shall take, sufficient security for the due payment of all future subscriptions and, if the foreman is a prized subscriber, he shall give security for the due payment of all the future subscriptions to the satisfaction of the Registrar. 32. Prized subscriber to pay subscriptions regularly. — Every prized subscriber shall pay his subscriptions regularly on the dates and times and at the place mentioned in the chit agreement and, on his failure to do so, he shall be liable to make a consolidated payment of all the future subscriptions forthwith. 33. Foreman to demand future subscriptions by written notice.— A foreman shall not be entitled to claim a consolidated payment from a defaulting prized subscriber under Section 32 unless he makes a demand to that effect in writing. (2) Where a dispute is raised under this Act by a foreman for a consolidated payment of future subscriptions from a defaulting prized subscriber and if the subscriber pays to the foreman on or before the date to which the dispute is posted for hearing the arrears of subscriptions till that date together with the interest thereon at the rate provided for in the chit agreement and the cost of adjudication of the dispute, the Registrar or his nominee hearing the dispute shall, notwithstanding any contract to the contrary, make an order directing the subscriber to pay to the foreman the future subscriptions on or before the dates on which they fall due, and that, in case of any default of such payments by the subscriber, the foreman shall be at liberty to realise, in execution of that order, all future subscriptions and interest together with the costs, if any, less the amount, if any, already paid by the subscriber in respect thereof: Provided that if any such dispute is on a promissory note, no order shall be passed under this sub¬section unless such promissory note expressly states that the amount due under the promissory note is towards the payment of subscriptions to the chit. (3) Any person who holds any interest in the property furnished as security or part thereof, shall be entitled to make the payment under sub¬section (2). (4) All consolidated payments of future subscriptions realised by a foreman shall be deposited by him in an approved bank mentioned in the chit agreement before the date of the succeeding instalment and the amount so deposited shall not be withdrawn except for payment of future subscriptions. (5) Where any property is obtained as security in lieu of the consolidated payment of future subscriptions, it shall remain as security for the due payment of future subscriptions. (emphasis supplied) 12. The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the Chit Fund. Such a provision would not amount to a penalty. 13. The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest. 14. The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund. Without punctual payments, the system would become unworkable, and the foreman would not be in a position to discharge his obligations to the other members of the chit fund. 15. In view of the aforesaid discussion, the relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum.
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1
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8. Where a contract provides for payment of money in installments, and contains a stipulation that on default being committed in paying any of the installments, the whole sum shall become payable at once, such a stipulation would not be in the nature of a penalty9. The division bench in the impugned Judgment dated 15.01.2009, held that by entering into a chitty agreement, a debt is not created at once by the subscriber with respect to the amount of all the future installments. The chitty agreement embodies a promise to pay and discharge a contractual obligation, and not a promise to repay an existing debt10. We do not agree with the view expressed by the division bench. When a prized subscriber is allowed to draw the chit amount, which is in the nature of a grant of a loan to him from the common fund in the hands of the foreman, with the concessional facility of effecting re-payment in installments; this is subject to the stipulation that the concession is liable to be withdrawn in the event of default being committed in payment of any of the installmentsThe chit subscriber at the time of subscription, incurs a debt which is payable in installments. If a subscriber is permitted to withdraw the collected sum on his turn, without being bound to pay the future installments, it would jeopardize the interest of all other subscribers, and the entire mechanism of the chit fund system would collapse11. A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an installment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount12. The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the Chit Fund. Such a provision would not amount to a penalty13. The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest14. The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund. Without punctual payments, the system would become unworkable, and the foreman would not be in a position to discharge his obligations to the other members of the chit fund15. In view of the aforesaid discussion, the relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum.
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Ishwru Yatayat Co-Operative Society Vs. State Transport Appellate Authority and Others | dismissed the appeals.4. Smt. Akhtari Begum and Jaiswal Transport Cooperative Society challenged the validity of the order in writ petitions before the High Court. The High Court quashed the order of the appellate authority and remanded the case for fresh disposal by that authority. Thereafter the appeals filed by Smt. Akhtari Begum and Jaiswal Transport Co-operative Society were heard, and the appellate authority by its order dated August 7, 1964 again dismissed the appeals and thus maintained the order passed by the Regional Transport Authority granting permits in favour of the appellant and M/s. Jawahar Yatayat Co-operative Society.5. Smt. Akhtari Begum and M/s. Jaiswal Transport Cooperative Society again filed separate writ petitions before the High Court challenging the order of the appellate authority. The High Court allowed the writ petitions and remanded the cases to the appellate authority for deciding both the appeals afresh. The appellate authority, by its order dated January 31, 1968 allowed the appeal filed by Smt. Akhtari Begum and set aside the order of the Regional Transport Authority granting permits in favour of the appellant and M/s. Jawahar Yatayat Cooperative Society. Both the permits were ordered to be granted to Smt. Akhtari Begum.6. The reasoning of the appellate authority was that the applications of the appellant and M/s. Jaiswal Transport Cooperative Society invalid as they were not registered as cooperative societies on the date on which the applications for permits were made the Regional Transport Authority and so the applications were not maintainable in law. Two writ petitions were filed before the High Court by the appellant as well as by M/s. Jawahar Yatayat Cooperative Society challenging the order. The High Court agreed with the conclusion of the appellate authority that the applications for grant of permits filed by the writ petitioners were not maintainable and dismissed the writ petitions by a common order.7. The only question which falls for consideration in appeal is whether the view taken by the High Court that the application for permit was not maintainable as the appellant was not a registered cooperative society when the applications were considered were disposed of by the Regional Transport Authority, was correct.8. It is no doubt true that in both the writ petitions filed by Smt. Akhtari Begum, no challenge was made to the grant of the permit in favour of the appellant for the reason that the application for permit was filed before the society was registered. But the plea was entertained and considered by the appellate authority without any objection by the appellant. In other words, the appellant never objected to the plea being raised and considered by the appellate authority. Nor did the appellant plead in the writ petition before the High court that it was not open to the appellate authority to entertain or considered this plea as it was not raised by Smt. Akhtari Begum before the appellate authority or the High Court at any previous stage of the proceeding. Even in the special leave petition, the appellant has not taken a ground that the plea was not available to the third respondent before the appellate authority and in the High Court as it was not raised by Smt. Akhtari Begum in the appeal filed by her before the appellate authority or in the writ petitions filed before the High Court. Therefore, we cannot allow the appellant to contend at this stage that the appellate authority and the High Court went wrong in entertaining the plea.9. When the application for grant of permit was made, there was no registered cooperative society in existence. The appellant submitted that an application for the registration of the society was pending when the application for grant of permit was made. But that is a matter of no moment. Since no registered cooperative society was in existence on the date of the application for grant of permit, the application was not maintainable. The fact that the appellant was registered as a cooperative society before the date on which the Regional Transport Authority considered the applications for permits is also of no consequence as there was no valid application before the Regional Transport Authority. When an application for permit is filed by a person, it has to be published and objections invited. The objectors are free to file representations against the grant of permit to the applicant. Now, if an application for grant of permit is filed on behalf of a non-existent person, it is impossible for objectors to state the reasons for their objections. There was no certainty in this case that the application for registration would be granted and that the appellant would become a juristic person even when the objectors would have had to file the representations.10. In Kali Kinkar Kundu v. Sadhan Chandra Dey (AIR 1971 Cal 171 ) the High Court of Calcutta had to consider the question whether an application for grant of permit could be filed on behalf of a company before it was incorporated. The Court held that the application was incompetent.11. In Azad Hind Motor Transport Cooperative Society Ltd. v. State Transport Appellate Authority (Misc. Petition No. 489 of 1966 decided on November 17, 1966 by the High Court of madhya Pradesh at Jabalpur (Unreported)) it was held by the High Court of Madhya Pradesh that until a co-operative society is registered, it has no juristic personality and so an application for grant of permit made by a person purporting to be on its behalf was not maintainable.12. We think that, in principle, in stands to reason to hold that since the appellant was not a registered cooperative society on the date of the application for grant of the permit, there was no person in the eye of the law who could file a valid application under Section 46 of the Motor Vehicles Act for grant of a permit. The High Court was right in its view that the application for grant of permit to the appellant was not maintainable and in dismissing the writ petition. | 0[ds]8. It is no doubt true that in both the writ petitions filed by Smt. Akhtari Begum, no challenge was made to the grant of the permit in favour of the appellant for the reason that the application for permit was filed before the society was registered. But the plea was entertained and considered by the appellate authority without any objection by the appellant. In other words, the appellant never objected to the plea being raised and considered by the appellate authority. Nor did the appellant plead in the writ petition before the High court that it was not open to the appellate authority to entertain or considered this plea as it was not raised by Smt. Akhtari Begum before the appellate authority or the High Court at any previous stage of the proceeding. Even in the special leave petition, the appellant has not taken a ground that the plea was not available to the third respondent before the appellate authority and in the High Court as it was not raised by Smt. Akhtari Begum in the appeal filed by her before the appellate authority or in the writ petitions filed before the High Court. Therefore, we cannot allow the appellant to contend at this stage that the appellate authority and the High Court went wrong in entertaining the plea.9. When the application for grant of permit was made, there was no registered cooperative society infact that the appellant was registered as a cooperative society before the date on which the Regional Transport Authority considered the applications for permits is also of no consequence as there was no valid application before the Regional Transport Authority. When an application for permit is filed by a person, it has to be published and objections invited. The objectors are free to file representations against the grant of permit to the applicant. Now, if an application for grant of permit is filed on behalf of a non-existent person, it is impossible for objectors to state the reasons for their objections. There was no certainty in this case that the application for registration would be granted and that the appellant would become a juristic person even when the objectors would have had to file the representations.We think that, in principle, in stands to reason to hold that since the appellant was not a registered cooperative society on the date of the application for grant of the permit, there was no person in the eye of the law who could file a valid application under Section 46 of the Motor Vehicles Act for grant of a permit. The High Court was right in its view that the application for grant of permit to the appellant was not maintainable and in dismissing the writ petition. | 0 | 1,336 | 490 | ### 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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dismissed the appeals.4. Smt. Akhtari Begum and Jaiswal Transport Cooperative Society challenged the validity of the order in writ petitions before the High Court. The High Court quashed the order of the appellate authority and remanded the case for fresh disposal by that authority. Thereafter the appeals filed by Smt. Akhtari Begum and Jaiswal Transport Co-operative Society were heard, and the appellate authority by its order dated August 7, 1964 again dismissed the appeals and thus maintained the order passed by the Regional Transport Authority granting permits in favour of the appellant and M/s. Jawahar Yatayat Co-operative Society.5. Smt. Akhtari Begum and M/s. Jaiswal Transport Cooperative Society again filed separate writ petitions before the High Court challenging the order of the appellate authority. The High Court allowed the writ petitions and remanded the cases to the appellate authority for deciding both the appeals afresh. The appellate authority, by its order dated January 31, 1968 allowed the appeal filed by Smt. Akhtari Begum and set aside the order of the Regional Transport Authority granting permits in favour of the appellant and M/s. Jawahar Yatayat Cooperative Society. Both the permits were ordered to be granted to Smt. Akhtari Begum.6. The reasoning of the appellate authority was that the applications of the appellant and M/s. Jaiswal Transport Cooperative Society invalid as they were not registered as cooperative societies on the date on which the applications for permits were made the Regional Transport Authority and so the applications were not maintainable in law. Two writ petitions were filed before the High Court by the appellant as well as by M/s. Jawahar Yatayat Cooperative Society challenging the order. The High Court agreed with the conclusion of the appellate authority that the applications for grant of permits filed by the writ petitioners were not maintainable and dismissed the writ petitions by a common order.7. The only question which falls for consideration in appeal is whether the view taken by the High Court that the application for permit was not maintainable as the appellant was not a registered cooperative society when the applications were considered were disposed of by the Regional Transport Authority, was correct.8. It is no doubt true that in both the writ petitions filed by Smt. Akhtari Begum, no challenge was made to the grant of the permit in favour of the appellant for the reason that the application for permit was filed before the society was registered. But the plea was entertained and considered by the appellate authority without any objection by the appellant. In other words, the appellant never objected to the plea being raised and considered by the appellate authority. Nor did the appellant plead in the writ petition before the High court that it was not open to the appellate authority to entertain or considered this plea as it was not raised by Smt. Akhtari Begum before the appellate authority or the High Court at any previous stage of the proceeding. Even in the special leave petition, the appellant has not taken a ground that the plea was not available to the third respondent before the appellate authority and in the High Court as it was not raised by Smt. Akhtari Begum in the appeal filed by her before the appellate authority or in the writ petitions filed before the High Court. Therefore, we cannot allow the appellant to contend at this stage that the appellate authority and the High Court went wrong in entertaining the plea.9. When the application for grant of permit was made, there was no registered cooperative society in existence. The appellant submitted that an application for the registration of the society was pending when the application for grant of permit was made. But that is a matter of no moment. Since no registered cooperative society was in existence on the date of the application for grant of permit, the application was not maintainable. The fact that the appellant was registered as a cooperative society before the date on which the Regional Transport Authority considered the applications for permits is also of no consequence as there was no valid application before the Regional Transport Authority. When an application for permit is filed by a person, it has to be published and objections invited. The objectors are free to file representations against the grant of permit to the applicant. Now, if an application for grant of permit is filed on behalf of a non-existent person, it is impossible for objectors to state the reasons for their objections. There was no certainty in this case that the application for registration would be granted and that the appellant would become a juristic person even when the objectors would have had to file the representations.10. In Kali Kinkar Kundu v. Sadhan Chandra Dey (AIR 1971 Cal 171 ) the High Court of Calcutta had to consider the question whether an application for grant of permit could be filed on behalf of a company before it was incorporated. The Court held that the application was incompetent.11. In Azad Hind Motor Transport Cooperative Society Ltd. v. State Transport Appellate Authority (Misc. Petition No. 489 of 1966 decided on November 17, 1966 by the High Court of madhya Pradesh at Jabalpur (Unreported)) it was held by the High Court of Madhya Pradesh that until a co-operative society is registered, it has no juristic personality and so an application for grant of permit made by a person purporting to be on its behalf was not maintainable.12. We think that, in principle, in stands to reason to hold that since the appellant was not a registered cooperative society on the date of the application for grant of the permit, there was no person in the eye of the law who could file a valid application under Section 46 of the Motor Vehicles Act for grant of a permit. The High Court was right in its view that the application for grant of permit to the appellant was not maintainable and in dismissing the writ petition.
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0
### Explanation:
8. It is no doubt true that in both the writ petitions filed by Smt. Akhtari Begum, no challenge was made to the grant of the permit in favour of the appellant for the reason that the application for permit was filed before the society was registered. But the plea was entertained and considered by the appellate authority without any objection by the appellant. In other words, the appellant never objected to the plea being raised and considered by the appellate authority. Nor did the appellant plead in the writ petition before the High court that it was not open to the appellate authority to entertain or considered this plea as it was not raised by Smt. Akhtari Begum before the appellate authority or the High Court at any previous stage of the proceeding. Even in the special leave petition, the appellant has not taken a ground that the plea was not available to the third respondent before the appellate authority and in the High Court as it was not raised by Smt. Akhtari Begum in the appeal filed by her before the appellate authority or in the writ petitions filed before the High Court. Therefore, we cannot allow the appellant to contend at this stage that the appellate authority and the High Court went wrong in entertaining the plea.9. When the application for grant of permit was made, there was no registered cooperative society infact that the appellant was registered as a cooperative society before the date on which the Regional Transport Authority considered the applications for permits is also of no consequence as there was no valid application before the Regional Transport Authority. When an application for permit is filed by a person, it has to be published and objections invited. The objectors are free to file representations against the grant of permit to the applicant. Now, if an application for grant of permit is filed on behalf of a non-existent person, it is impossible for objectors to state the reasons for their objections. There was no certainty in this case that the application for registration would be granted and that the appellant would become a juristic person even when the objectors would have had to file the representations.We think that, in principle, in stands to reason to hold that since the appellant was not a registered cooperative society on the date of the application for grant of the permit, there was no person in the eye of the law who could file a valid application under Section 46 of the Motor Vehicles Act for grant of a permit. The High Court was right in its view that the application for grant of permit to the appellant was not maintainable and in dismissing the writ petition.
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M/S. Cox & Kings Ltd. & Anr Vs. Smt.Chander Malhotra | of Section 14 which was not obtained. Therefore, it is a clear case of sub letting. Even otherwise, it would be an assignment, as admittedly agreed in the agreement referred to hereinbefore between the Foreign Company and the Indian Company. In P.H. Rao v. S.P.N.K. Jain & Anr., (1980) 3 SCR 444 , the landlord had executed a lease in respect of the demised premises in favour of the Laxmi Bank on 1.4.1942; the Bank went into liquidation. The liquidator sold leasehold right to the respondent and the Court confirmed the same. An application for eviction came to be filed and it was contended that it being an involuntary transfer it was not a case of sub letting under Section 14(1)(b) of the Act. This Court had negatived the contention holding thus: “ As regards point No. 3, the High Court relying on a decision of Calcutta High Court in Krishna Das Nandyv. Bidhan Chandra Roy,AIR 1959 Cal. 181 has found that as the transfer in favour of respondent No.1 by the Official Liquidator was confirmed by the Court, the status of the tenant by respondent No. 1 was acquired by operation of law and, therefore, the transfer was an involuntary transfer and the provisions of Rent Control Act would not be attracted. After careful perusal of Calcutta case, in the first place it appears that the section concerned has not been extracted and we are not in a position to know what was the actual language of the section of the Bengal Act. Secondly, in our opinion, the Official Liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the Official Liquidator had transferred the tenancy interest to respondent No. 2 under the orders of the Court, it was on behalf of the original tenant. It was undoubtedly a voluntary, sale which clearly fell within the mischief of Section 14(1)(b) of the Delhi Rent Control Act. Assuming that the sale by the Official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by Sec. 14(b) of Delhi Rent Control Act, Section 14(b) runs thus:‘14(b).––that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.’The language of Section 14(b) is wide enough not only to include any sub-lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of Section 14(b) we are clearly of the opinion that it does not exclude even an involuntary sale. For these reasons, therefore, we are unable to agree with the view taken by the High Court. The appeal is accordingly allowed, the judgment and decree of the High Court are set aside and the plaintiffs application under Section 25 of the Delhi Rent Control Act is dismissed,” premises without obtaining the cons. 7. The above ratio is clearly on the point in issue involved in the present case. In Venkatarma Iyer v. Renters Ltd.,(1951 II MLJ 57, K. Subba Rao, J., as he then was, had to consider a similar question under the Madras Buildings (Lease and. Rent) Control Act. There was an assignment between the two companies and considering the effect thereof it was held that if a company doing business in a particular premises taken on lease, transfers its business as a going concern to another company and also the net assets for consideration and thereafter the transferee company takes over the business and carries on business in the premises let out to the former company, it cannot be said that there was no transfer of the right of the former company under the lease to the latter company. On such transfer, the tenant is liable to be evicted as a sub-tenant. The above judgment is clearly on the point in issue before us. In General Radio & Appliances Co. Ltd. v. M.A. Khader (dead) by LRs., [(1986) 2 SCR 607 at 620] a three-Judge Bench had approved the above ratio. Two Companies having been amalgamated, eviction against the amalgamated company came to be filed. On consideration of all the decisions referred to above hereinbefore, the irresistible conclusion followed that there had been a transfer of the tenancy interest of appellant No. 1 in respect of the premises in question to the appellant No. 2, subsequently, renamed appellant No. 3, M/s. National Radio Electronics Co. Ltd. Accordingly, their eviction was upheld under Section 10(ii)(a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The facts in Madras Bangalore Transport Co. (West) v. Inder Singh & Ors.,[(1986) 3 SCC 62] relied upon by Shri R.F. Nariman, are clearly distinguishable. In that case, a partnership firm was divided between the partners and two separate firms came to be formed with a distinct area of operation and one of the companies was to retain possession of the tenanted premises. After 10 years, application for eviction came to be filed on the ground of sub-letting of the premises. Considering the constitution of the companies, its operation and the nature of the incidence that flowed therefrom, this Court had held that the limited company and the partnership firm were two only on paper but were one for practical purposes. There was substantial identity between the limited company and the partnership firm. On the basis of those findings, it was held that there was no sub-letting. The ratio has no application to the facts in this case.8. In view of the findings recorded above, viz., there was a clear assignment between the Foreign Company and the Indian Company of the demised premises without any written consent of the respondent-landlord, it is a case of “sub-letting” within the meaning of Section 14(1)(b) of the Act. The Courts below, therefore, have not committed any illegality in reaching those findings warranting interference. 9. | 0[ds]We find it difficult to give acceptance to the contention.It is not in dispute that such an application came to be made and the Reserve Bank had passed an order directing the Foreign Company to wind up its business. Subsequently, an application was made for permission to incorporate Indian Company with 100% share held by the Foreign Company which was refused. Thereafter, Indian Company came to be incorporated in which the Foreign Company claimed to have 40% share in the business. Thus, the Indian Company was incorporated under the Indian Companies Act, 1956 and was doing business under FERA with the permission of Reserveis seen that under FERA, there is no compulsion that the premises demised to the Foreign Company should be continued or given to Indian Company.Thus, it could be seen that under the consequence of agreement between the Foreign Company and the Indian Company, the Indian Company became the assignee with all rights and liabilities and subject to observance of the terms and conditions of all the tenancy rights contained in the leases or agreements for lease under which the same are being held by the Foreign Company. It would, thus, be clear that it is a case of assignment of the lease hold right, had from the respondent in favour of Indian Company, subject to the observance of the leasehold covenants contained in the lease held by the Foreignis seen that Sub-section (b) of Section 14, in clear terms envisages that the tenant shall not, after June 9, 1952, sub-let, assign, or otherwise part with the possession of the whole or any part of the premises, without obtaining the written consent of the landlord. It is seen that though by operation of FERA the Foreign Company had wound up its business, it assigned, under the agreement, the leasehold interest in the demised premises to the Indian Company which is carrying on the same business in the tenanted premises without obtaining the written consent of the landlord.6. The respondent-landlord is not bound by such assignment, induction of the appellant-Company against her wishes. Her written consent is a pre-condition, as envisaged under Sub-section (1)(b) of Section 14 which was not obtained. Therefore, it is a clear case of sub letting. Even otherwise, it would be an assignment, as admittedly agreed in the agreement referred to hereinbefore between the Foreign Company and the Indian Company.The above ratio is clearly on the point in issue involved in the present case. In Venkatarma Iyer v. Renters Ltd.,(1951 II MLJ 57, K. Subba Rao, J., as he then was, had to consider a similar question under the Madras Buildings (Lease and. Rent) Control Act. There was an assignment between the two companies and considering the effect thereof it was held that if a company doing business in a particular premises taken on lease, transfers its business as a going concern to another company and also the net assets for consideration and thereafter the transferee company takes over the business and carries on business in the premises let out to the former company, it cannot be said that there was no transfer of the right of the former company under the lease to the latter company. On such transfer, the tenant is liable to be evicted as a sub-tenant. The above judgment is clearly on the point in issue before us. In General Radio & Appliances Co. Ltd. v. M.A. Khader (dead) by LRs., [(1986) 2 SCR 607 at 620] a three-Judge Bench had approved the above ratio. Two Companies having been amalgamated, eviction against the amalgamated company came to be filed. On consideration of all the decisions referred to above hereinbefore, the irresistible conclusion followed that there had been a transfer of the tenancy interest of appellant No. 1 in respect of the premises in question to the appellant No. 2, subsequently, renamed appellant No. 3, M/s. National Radio Electronics Co. Ltd. Accordingly, their eviction was upheld under Section 10(ii)(a) ofthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The facts in Madras Bangalore Transport Co. (West) v. Inder Singh & Ors.,[(1986) 3 SCC 62] relied upon by Shri R.F. Nariman, are clearly distinguishable. In that case, a partnership firm was divided between the partners and two separate firms came to be formed with a distinct area of operation and one of the companies was to retain possession of the tenanted premises. After 10 years, application for eviction came to be filed on the ground of sub-letting of the premises. Considering the constitution of the companies, its operation and the nature of the incidence that flowed therefrom, this Court had held that the limited company and the partnership firm were two only on paper but were one for practical purposes. There was substantial identity between the limited company and the partnership firm. On the basis of those findings, it was held that there was no sub-letting. The ratio has no application to the facts in this case.8. In view of the findings recorded above, viz., there was a clear assignment between the Foreign Company and the Indian Company of the demised premises without any written consent of the respondent-landlord, it is a case ofwithin the meaning of Section 14(1)(b) of the Act. The Courts below, therefore, have not committed any illegality in reaching those findings warranting interference. | 0 | 2,712 | 1,020 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of Section 14 which was not obtained. Therefore, it is a clear case of sub letting. Even otherwise, it would be an assignment, as admittedly agreed in the agreement referred to hereinbefore between the Foreign Company and the Indian Company. In P.H. Rao v. S.P.N.K. Jain & Anr., (1980) 3 SCR 444 , the landlord had executed a lease in respect of the demised premises in favour of the Laxmi Bank on 1.4.1942; the Bank went into liquidation. The liquidator sold leasehold right to the respondent and the Court confirmed the same. An application for eviction came to be filed and it was contended that it being an involuntary transfer it was not a case of sub letting under Section 14(1)(b) of the Act. This Court had negatived the contention holding thus: “ As regards point No. 3, the High Court relying on a decision of Calcutta High Court in Krishna Das Nandyv. Bidhan Chandra Roy,AIR 1959 Cal. 181 has found that as the transfer in favour of respondent No.1 by the Official Liquidator was confirmed by the Court, the status of the tenant by respondent No. 1 was acquired by operation of law and, therefore, the transfer was an involuntary transfer and the provisions of Rent Control Act would not be attracted. After careful perusal of Calcutta case, in the first place it appears that the section concerned has not been extracted and we are not in a position to know what was the actual language of the section of the Bengal Act. Secondly, in our opinion, the Official Liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the Official Liquidator had transferred the tenancy interest to respondent No. 2 under the orders of the Court, it was on behalf of the original tenant. It was undoubtedly a voluntary, sale which clearly fell within the mischief of Section 14(1)(b) of the Delhi Rent Control Act. Assuming that the sale by the Official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by Sec. 14(b) of Delhi Rent Control Act, Section 14(b) runs thus:‘14(b).––that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.’The language of Section 14(b) is wide enough not only to include any sub-lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of Section 14(b) we are clearly of the opinion that it does not exclude even an involuntary sale. For these reasons, therefore, we are unable to agree with the view taken by the High Court. The appeal is accordingly allowed, the judgment and decree of the High Court are set aside and the plaintiffs application under Section 25 of the Delhi Rent Control Act is dismissed,” premises without obtaining the cons. 7. The above ratio is clearly on the point in issue involved in the present case. In Venkatarma Iyer v. Renters Ltd.,(1951 II MLJ 57, K. Subba Rao, J., as he then was, had to consider a similar question under the Madras Buildings (Lease and. Rent) Control Act. There was an assignment between the two companies and considering the effect thereof it was held that if a company doing business in a particular premises taken on lease, transfers its business as a going concern to another company and also the net assets for consideration and thereafter the transferee company takes over the business and carries on business in the premises let out to the former company, it cannot be said that there was no transfer of the right of the former company under the lease to the latter company. On such transfer, the tenant is liable to be evicted as a sub-tenant. The above judgment is clearly on the point in issue before us. In General Radio & Appliances Co. Ltd. v. M.A. Khader (dead) by LRs., [(1986) 2 SCR 607 at 620] a three-Judge Bench had approved the above ratio. Two Companies having been amalgamated, eviction against the amalgamated company came to be filed. On consideration of all the decisions referred to above hereinbefore, the irresistible conclusion followed that there had been a transfer of the tenancy interest of appellant No. 1 in respect of the premises in question to the appellant No. 2, subsequently, renamed appellant No. 3, M/s. National Radio Electronics Co. Ltd. Accordingly, their eviction was upheld under Section 10(ii)(a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The facts in Madras Bangalore Transport Co. (West) v. Inder Singh & Ors.,[(1986) 3 SCC 62] relied upon by Shri R.F. Nariman, are clearly distinguishable. In that case, a partnership firm was divided between the partners and two separate firms came to be formed with a distinct area of operation and one of the companies was to retain possession of the tenanted premises. After 10 years, application for eviction came to be filed on the ground of sub-letting of the premises. Considering the constitution of the companies, its operation and the nature of the incidence that flowed therefrom, this Court had held that the limited company and the partnership firm were two only on paper but were one for practical purposes. There was substantial identity between the limited company and the partnership firm. On the basis of those findings, it was held that there was no sub-letting. The ratio has no application to the facts in this case.8. In view of the findings recorded above, viz., there was a clear assignment between the Foreign Company and the Indian Company of the demised premises without any written consent of the respondent-landlord, it is a case of “sub-letting” within the meaning of Section 14(1)(b) of the Act. The Courts below, therefore, have not committed any illegality in reaching those findings warranting interference. 9.
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### Explanation:
We find it difficult to give acceptance to the contention.It is not in dispute that such an application came to be made and the Reserve Bank had passed an order directing the Foreign Company to wind up its business. Subsequently, an application was made for permission to incorporate Indian Company with 100% share held by the Foreign Company which was refused. Thereafter, Indian Company came to be incorporated in which the Foreign Company claimed to have 40% share in the business. Thus, the Indian Company was incorporated under the Indian Companies Act, 1956 and was doing business under FERA with the permission of Reserveis seen that under FERA, there is no compulsion that the premises demised to the Foreign Company should be continued or given to Indian Company.Thus, it could be seen that under the consequence of agreement between the Foreign Company and the Indian Company, the Indian Company became the assignee with all rights and liabilities and subject to observance of the terms and conditions of all the tenancy rights contained in the leases or agreements for lease under which the same are being held by the Foreign Company. It would, thus, be clear that it is a case of assignment of the lease hold right, had from the respondent in favour of Indian Company, subject to the observance of the leasehold covenants contained in the lease held by the Foreignis seen that Sub-section (b) of Section 14, in clear terms envisages that the tenant shall not, after June 9, 1952, sub-let, assign, or otherwise part with the possession of the whole or any part of the premises, without obtaining the written consent of the landlord. It is seen that though by operation of FERA the Foreign Company had wound up its business, it assigned, under the agreement, the leasehold interest in the demised premises to the Indian Company which is carrying on the same business in the tenanted premises without obtaining the written consent of the landlord.6. The respondent-landlord is not bound by such assignment, induction of the appellant-Company against her wishes. Her written consent is a pre-condition, as envisaged under Sub-section (1)(b) of Section 14 which was not obtained. Therefore, it is a clear case of sub letting. Even otherwise, it would be an assignment, as admittedly agreed in the agreement referred to hereinbefore between the Foreign Company and the Indian Company.The above ratio is clearly on the point in issue involved in the present case. In Venkatarma Iyer v. Renters Ltd.,(1951 II MLJ 57, K. Subba Rao, J., as he then was, had to consider a similar question under the Madras Buildings (Lease and. Rent) Control Act. There was an assignment between the two companies and considering the effect thereof it was held that if a company doing business in a particular premises taken on lease, transfers its business as a going concern to another company and also the net assets for consideration and thereafter the transferee company takes over the business and carries on business in the premises let out to the former company, it cannot be said that there was no transfer of the right of the former company under the lease to the latter company. On such transfer, the tenant is liable to be evicted as a sub-tenant. The above judgment is clearly on the point in issue before us. In General Radio & Appliances Co. Ltd. v. M.A. Khader (dead) by LRs., [(1986) 2 SCR 607 at 620] a three-Judge Bench had approved the above ratio. Two Companies having been amalgamated, eviction against the amalgamated company came to be filed. On consideration of all the decisions referred to above hereinbefore, the irresistible conclusion followed that there had been a transfer of the tenancy interest of appellant No. 1 in respect of the premises in question to the appellant No. 2, subsequently, renamed appellant No. 3, M/s. National Radio Electronics Co. Ltd. Accordingly, their eviction was upheld under Section 10(ii)(a) ofthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The facts in Madras Bangalore Transport Co. (West) v. Inder Singh & Ors.,[(1986) 3 SCC 62] relied upon by Shri R.F. Nariman, are clearly distinguishable. In that case, a partnership firm was divided between the partners and two separate firms came to be formed with a distinct area of operation and one of the companies was to retain possession of the tenanted premises. After 10 years, application for eviction came to be filed on the ground of sub-letting of the premises. Considering the constitution of the companies, its operation and the nature of the incidence that flowed therefrom, this Court had held that the limited company and the partnership firm were two only on paper but were one for practical purposes. There was substantial identity between the limited company and the partnership firm. On the basis of those findings, it was held that there was no sub-letting. The ratio has no application to the facts in this case.8. In view of the findings recorded above, viz., there was a clear assignment between the Foreign Company and the Indian Company of the demised premises without any written consent of the respondent-landlord, it is a case ofwithin the meaning of Section 14(1)(b) of the Act. The Courts below, therefore, have not committed any illegality in reaching those findings warranting interference.
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