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S. M. Nandy & Ors Vs. State Of West Bengal & Ors | The notification dated May 11, 1948, to which reference has been made above reads as follows :"No. 3775 L.A.(P.W.) May 11, 1948. In exercise of the powers conferred by sub-section (1) of Section 3 of the West Bengal Land (*Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948), the Governor is pleased hereby to authorise each of the Collector and the Deputy Commissioners mentioned in the Schedule below to requisition, by order in writing, in pursuance of the provisions of the said sub-section (1) of the said Section 3, (torn) land within the local limits of his jurisdiction and (torn) to make such further orders as appear to him to be necessary or expedient in connection with the requisitioning :SCHEDULE .......................... Collector of Hooghly District ..................................." 7. The learned counsel has raised the following points before us : (1) that the orders of requisition were illegal as the Acquisition Act under which they were issued did not apply to the territory previously known as french Chandernagore; and (2) that under the notification dated May 11, 1948, the Collector could exercise the powers of requisition only in respect of lands within the local limits of the territories then forming part of the Hooghly District.8. Regarding the first point, it seems to us that there is no force in the contentions. Section 3 of the Chandernagore (Meger) Act, 1954. Made Chandernagore part of the State of West Bengal and Section 17 extended the Acquisition Act to it.. The Acquisition Act was a law within the meaning of law contained in Section 2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enumerated in List II in the Seventh Schedule to the Constitution. List II, as it then existed contained the following entries :"36. Acquisition or requisitining of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III." Entry 42 of List III was to the following effect :"Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other pubic purpose is to be determined, and the form and the manner in which compensation is to be given." Insofar as the Acquisition Act related to Entry 42 of List III it was applied by Section 3 of the Chandernagore (Assimilation of Laws) Act, 1955, and Section 17 of the Chandernagore (Meger) Act, 1954, read with the definition of the word "law" in Section 2(d) of the latter Act. 9. The learned counsel further urged for us that this law was not in force in the State of West Bangle "generally" because it proved that it shall remain in force up to a certain date and this date had been changed from time to time. In 1954 it was provided that it shall remain in force up to March 31, 1957. We are unable to appreciate how the word "generally" has any reference to the duration of the time during which an act has to operate. We agree with the High Court that the word "generally" refers to the territory of West Bengal. 10. Another argument that was urged before us was that because there was no corresponding law within the meaning of section 17 of the Chandernagore (Merger) Act, 1954, and Section 4 of the Chandernagore (Assimilation of Laws) Act, 1955, Section 3 of the latter Act did not have the effect of extending the Acquisition Act to Chandernagore. We are unable to appreciate this reasoning. Section 4 has a limited effect and that is that if there is a corresponding law then that law shall, as from that date, stand repealed in Chandernagore. If there is no corresponding law then section 4 does not operate and it has no effect on the scope of Section 3. 11. It was finally urged in this connection that a there was no law on the subject of requisitioning of property in french territory, the citizens enjoyed the privilege of immunity and any order to deprive the citizens of that immunity should have been much more specific. We agree with the High Court that there is no force in this contention. If by virtue of Section 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore al privileges and immunities in conflict with that Act would cease to exist. 12. Coming to the second point, we urge with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a Collector then the notification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning in respect of land existing in Chandernagore because Chandernagore had come within the limits of his jurisdiction. The Notification must be construed to refer to the limits of the District as it exist on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S, Additional District Magistrate, then he had authority by virtue of the notification, dated September 15, 1959, mentioned above. 13. The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of "Collector" ("the Collector of a district and include a Deputy Commissioner and any officer specially appointed by the State Government to perform the functions of a Collector under this Act") urged that the Additional District Magistrate was not "specially appointed". There is no force in this point. The notification of September 15, 1959, amounts to special appointment within the definition of "Collector". 14. We referred the following question to the Constitution Bench (See later S. M. Nawdy v. State of West Bengal, 1971 (1) SCC 688.) which has answered it in the negative : "Whether the West Bengal Land (Requisition and Acquisition) Act, 1948, is ultra vires the constitution under Article 19(1) (f) read with Article 19(5) ?" | 0[ds]In 1954 it was provided that it shall remain in force up to March 31, 1957. We are unable to appreciate how the word "generally" has any reference to the duration of the time during which an act has to operate. We agree with the High Court that the word "generally" refers to the territory of West BengalWe agree with the High Court that there is no force in this contention. If by virtue of Section 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore al privileges and immunities in conflict with that Act would cease to exist12. Coming to the second point, we urge with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a Collector then the notification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning in respect of land existing in Chandernagore because Chandernagore had come within the limits of his jurisdiction. The Notification must be construed to refer to the limits of the District as it exist on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S, Additional District Magistrate, then he had authority by virtue of the notification, dated September 15, 1959, mentioned above13. The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of "Collector" ("the Collector of a district and include a Deputy Commissioner and any officer specially appointed by the State Government to perform the functions of a Collector under this Act") urged that the Additional District Magistrate was not "specially appointed". There is no force in this point. The notification of September 15, 1959, amounts to special appointment within the definition of "Collector"8. Regarding the first point, it seems to us that there is no force in the contentions. Section 3 of the Chandernagore (Meger) Act, 1954. Made Chandernagore part of the State of West Bengal and Section 17 extended the Acquisition Act to it.. The Acquisition Act was a law within the meaning of law contained in Section 2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enumerated in List II in the Seventh Schedule to the Constitution. List II, as it then existed contained the following entries :"36. Acquisition or requisitining of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III."Entry 42 of List III was to the following effect :"Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other pubic purpose is to be determined, and the form and the manner in which compensation is to be given."Insofar as the Acquisition Act related to Entry 42 of List III it was applied by Section 3 ofthe Chandernagore (Assimilation of Laws) Act, 1955, and Section 17 of the Chandernagore (Meger) Act, 1954, read with the definition of the word "law" in Section 2(d) of the latter Act. | 0 | 2,330 | 610 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
The notification dated May 11, 1948, to which reference has been made above reads as follows :"No. 3775 L.A.(P.W.) May 11, 1948. In exercise of the powers conferred by sub-section (1) of Section 3 of the West Bengal Land (*Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948), the Governor is pleased hereby to authorise each of the Collector and the Deputy Commissioners mentioned in the Schedule below to requisition, by order in writing, in pursuance of the provisions of the said sub-section (1) of the said Section 3, (torn) land within the local limits of his jurisdiction and (torn) to make such further orders as appear to him to be necessary or expedient in connection with the requisitioning :SCHEDULE .......................... Collector of Hooghly District ..................................." 7. The learned counsel has raised the following points before us : (1) that the orders of requisition were illegal as the Acquisition Act under which they were issued did not apply to the territory previously known as french Chandernagore; and (2) that under the notification dated May 11, 1948, the Collector could exercise the powers of requisition only in respect of lands within the local limits of the territories then forming part of the Hooghly District.8. Regarding the first point, it seems to us that there is no force in the contentions. Section 3 of the Chandernagore (Meger) Act, 1954. Made Chandernagore part of the State of West Bengal and Section 17 extended the Acquisition Act to it.. The Acquisition Act was a law within the meaning of law contained in Section 2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enumerated in List II in the Seventh Schedule to the Constitution. List II, as it then existed contained the following entries :"36. Acquisition or requisitining of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III." Entry 42 of List III was to the following effect :"Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other pubic purpose is to be determined, and the form and the manner in which compensation is to be given." Insofar as the Acquisition Act related to Entry 42 of List III it was applied by Section 3 of the Chandernagore (Assimilation of Laws) Act, 1955, and Section 17 of the Chandernagore (Meger) Act, 1954, read with the definition of the word "law" in Section 2(d) of the latter Act. 9. The learned counsel further urged for us that this law was not in force in the State of West Bangle "generally" because it proved that it shall remain in force up to a certain date and this date had been changed from time to time. In 1954 it was provided that it shall remain in force up to March 31, 1957. We are unable to appreciate how the word "generally" has any reference to the duration of the time during which an act has to operate. We agree with the High Court that the word "generally" refers to the territory of West Bengal. 10. Another argument that was urged before us was that because there was no corresponding law within the meaning of section 17 of the Chandernagore (Merger) Act, 1954, and Section 4 of the Chandernagore (Assimilation of Laws) Act, 1955, Section 3 of the latter Act did not have the effect of extending the Acquisition Act to Chandernagore. We are unable to appreciate this reasoning. Section 4 has a limited effect and that is that if there is a corresponding law then that law shall, as from that date, stand repealed in Chandernagore. If there is no corresponding law then section 4 does not operate and it has no effect on the scope of Section 3. 11. It was finally urged in this connection that a there was no law on the subject of requisitioning of property in french territory, the citizens enjoyed the privilege of immunity and any order to deprive the citizens of that immunity should have been much more specific. We agree with the High Court that there is no force in this contention. If by virtue of Section 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore al privileges and immunities in conflict with that Act would cease to exist. 12. Coming to the second point, we urge with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a Collector then the notification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning in respect of land existing in Chandernagore because Chandernagore had come within the limits of his jurisdiction. The Notification must be construed to refer to the limits of the District as it exist on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S, Additional District Magistrate, then he had authority by virtue of the notification, dated September 15, 1959, mentioned above. 13. The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of "Collector" ("the Collector of a district and include a Deputy Commissioner and any officer specially appointed by the State Government to perform the functions of a Collector under this Act") urged that the Additional District Magistrate was not "specially appointed". There is no force in this point. The notification of September 15, 1959, amounts to special appointment within the definition of "Collector". 14. We referred the following question to the Constitution Bench (See later S. M. Nawdy v. State of West Bengal, 1971 (1) SCC 688.) which has answered it in the negative : "Whether the West Bengal Land (Requisition and Acquisition) Act, 1948, is ultra vires the constitution under Article 19(1) (f) read with Article 19(5) ?"
### Response:
0
### Explanation:
In 1954 it was provided that it shall remain in force up to March 31, 1957. We are unable to appreciate how the word "generally" has any reference to the duration of the time during which an act has to operate. We agree with the High Court that the word "generally" refers to the territory of West BengalWe agree with the High Court that there is no force in this contention. If by virtue of Section 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore al privileges and immunities in conflict with that Act would cease to exist12. Coming to the second point, we urge with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a Collector then the notification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning in respect of land existing in Chandernagore because Chandernagore had come within the limits of his jurisdiction. The Notification must be construed to refer to the limits of the District as it exist on the date of the exercise of the powers conferred by the notification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S, Additional District Magistrate, then he had authority by virtue of the notification, dated September 15, 1959, mentioned above13. The learned counsel, referring to the Acquisition Act, as it stood in 1959, and the definition of "Collector" ("the Collector of a district and include a Deputy Commissioner and any officer specially appointed by the State Government to perform the functions of a Collector under this Act") urged that the Additional District Magistrate was not "specially appointed". There is no force in this point. The notification of September 15, 1959, amounts to special appointment within the definition of "Collector"8. Regarding the first point, it seems to us that there is no force in the contentions. Section 3 of the Chandernagore (Meger) Act, 1954. Made Chandernagore part of the State of West Bengal and Section 17 extended the Acquisition Act to it.. The Acquisition Act was a law within the meaning of law contained in Section 2(c) of the Chandernagore (Assimilation of Laws) Act because it related to a matter enumerated in List II in the Seventh Schedule to the Constitution. List II, as it then existed contained the following entries :"36. Acquisition or requisitining of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III."Entry 42 of List III was to the following effect :"Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other pubic purpose is to be determined, and the form and the manner in which compensation is to be given."Insofar as the Acquisition Act related to Entry 42 of List III it was applied by Section 3 ofthe Chandernagore (Assimilation of Laws) Act, 1955, and Section 17 of the Chandernagore (Meger) Act, 1954, read with the definition of the word "law" in Section 2(d) of the latter Act.
|
B. Premanand Vs. Mohan Koikal | and another vs. Hansoli Devi and others 2002 (7) SCC (vide para 9), this Court observed : It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act. The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the private respondents, we will really be legislating because in the guise of interpretation we will be really amending Rule 27(c) of the Rules. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980 , this Court observed : It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute. The same view has been taken by this Court in S. Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121 . The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language. 12. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says this is a pencil, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean. In this connection, we may also refer to the Mimansa Rules of Interpretation which were our traditional principles of interpretation used for thousand of years by our jurists. It is deeply regrettable that in our law courts today these principles are not cited. Today, our so called educated people are largely ignorant about the great intellectual achievements of our ancestors, and the intellectual treasury which they have bequeathed to us. The Mimansa Rules of Interpretation are one of these great achievements, but regrettably they are hardly ever used in our law courts. 13. It may be mentioned that it is not stated anywhere in the Constitution of India that only Maxwells Principles of Interpretation can be utilised. We can utilise any system of interpretation which can help to resolve a difficulty. Principles of interpretation are not principles of law but are only a methodology for explaining the meaning of words used in a text. There is no reason why we should not use Mimansa Principles of Interpretation in appropriate occasions. 14. In Mimansa, the literal rule of interpretation is known as the Shruti or Abhida Principle. This is illustrated by the Garhapatya nyaya (In Mimansa Maxims are known as nyayas). There is the vedic verse: Aindrya garhapatyam upatishthate, which means By the Mantra addressed to Indra establish the household fire. This verse can possibly have several meanings viz. (1) worship Indra (2) worship Garhapatya (the household fire) (3) worship both, or (4) worship either. 15. However, since the word Garhapatyam is in the objective case, the verse has only one meaning, that is, worship Garhapatya. The word Aindrya means by Indra, and hence the verse means that by verses dedicated to Indra one should worship Garhapatya. The word Aindrya in this verse is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words Garhapatyam Upatishthate are the Shruti. According to the Mimansa principles, the Shruti (literal meaning) will prevail over the Linga (suggestive power). 16. It is not necessary to go into details, but reference can be made to the Book Mimansa Rules of Interpretation by K.L.Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa Principles, the Sruti Principle or literal rule of interpretation will prevail over all other principles, e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc. | 1[ds]The Full Bench and Single Judge have relied on equity, justice and good conscience, rather than law. We are of the opinion that this approach is incorrect. When there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law. In the present case, Rule 27(c) clearly makes the appellants senior to the respondents as the advice for their appointments were made prior to that for the respondentsThat decision, in our opinion, is clearly distinguishable as it makes no reference to Rule 27(c) of the Rules. Moreover, the observation therein that when two vacancies arose on 6.10.72 the appellant had a right to be appointed against one of the vacancies is clearly against the settled legal position that even a selected candidate has no indefeasible right to be appointed vide Constitution Bench decision in Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 , and several decisions thereafter. In our opinion, Rule 27(c) of the Rules is plain and clear. Hence, the literal rule of interpretation will apply to it. No doubt, equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail. The law, which is contained in Rule 27(c), is clearly in favour of the appellantsIn Mimansa, the literal rule of interpretation is known as the Shruti or Abhida Principle. This is illustrated by the Garhapatya nyaya (In Mimansa Maxims are known as nyayas). There is the vedic verse: Aindrya garhapatyam upatishthate, which means By the Mantra addressed to Indra establish the household fire. This verse can possibly have several meanings viz. (1) worship Indra (2) worship Garhapatya (the household fire) (3) worship both, or (4) worship eitherHowever, since the word Garhapatyam is in the objective case, the verse has only one meaning, that is, worship Garhapatya. The word Aindrya means by Indra, and hence the verse means that by verses dedicated to Indra one should worship Garhapatya. The word Aindrya in this verse is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words Garhapatyam Upatishthate are the Shruti. According to the Mimansa principles, the Shruti (literal meaning) will prevail over the Linga (suggestive power)It is not necessary to go into details, but reference can be made to the Book Mimansa Rules of Interpretation by K.L.Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa Principles, the Sruti Principle or literal rule of interpretation will prevail over all other principles, e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc | 1 | 3,505 | 550 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
and another vs. Hansoli Devi and others 2002 (7) SCC (vide para 9), this Court observed : It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act. The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the private respondents, we will really be legislating because in the guise of interpretation we will be really amending Rule 27(c) of the Rules. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980 , this Court observed : It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute. The same view has been taken by this Court in S. Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121 . The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language. 12. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says this is a pencil, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean. In this connection, we may also refer to the Mimansa Rules of Interpretation which were our traditional principles of interpretation used for thousand of years by our jurists. It is deeply regrettable that in our law courts today these principles are not cited. Today, our so called educated people are largely ignorant about the great intellectual achievements of our ancestors, and the intellectual treasury which they have bequeathed to us. The Mimansa Rules of Interpretation are one of these great achievements, but regrettably they are hardly ever used in our law courts. 13. It may be mentioned that it is not stated anywhere in the Constitution of India that only Maxwells Principles of Interpretation can be utilised. We can utilise any system of interpretation which can help to resolve a difficulty. Principles of interpretation are not principles of law but are only a methodology for explaining the meaning of words used in a text. There is no reason why we should not use Mimansa Principles of Interpretation in appropriate occasions. 14. In Mimansa, the literal rule of interpretation is known as the Shruti or Abhida Principle. This is illustrated by the Garhapatya nyaya (In Mimansa Maxims are known as nyayas). There is the vedic verse: Aindrya garhapatyam upatishthate, which means By the Mantra addressed to Indra establish the household fire. This verse can possibly have several meanings viz. (1) worship Indra (2) worship Garhapatya (the household fire) (3) worship both, or (4) worship either. 15. However, since the word Garhapatyam is in the objective case, the verse has only one meaning, that is, worship Garhapatya. The word Aindrya means by Indra, and hence the verse means that by verses dedicated to Indra one should worship Garhapatya. The word Aindrya in this verse is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words Garhapatyam Upatishthate are the Shruti. According to the Mimansa principles, the Shruti (literal meaning) will prevail over the Linga (suggestive power). 16. It is not necessary to go into details, but reference can be made to the Book Mimansa Rules of Interpretation by K.L.Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa Principles, the Sruti Principle or literal rule of interpretation will prevail over all other principles, e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc.
### Response:
1
### Explanation:
The Full Bench and Single Judge have relied on equity, justice and good conscience, rather than law. We are of the opinion that this approach is incorrect. When there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law. In the present case, Rule 27(c) clearly makes the appellants senior to the respondents as the advice for their appointments were made prior to that for the respondentsThat decision, in our opinion, is clearly distinguishable as it makes no reference to Rule 27(c) of the Rules. Moreover, the observation therein that when two vacancies arose on 6.10.72 the appellant had a right to be appointed against one of the vacancies is clearly against the settled legal position that even a selected candidate has no indefeasible right to be appointed vide Constitution Bench decision in Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 , and several decisions thereafter. In our opinion, Rule 27(c) of the Rules is plain and clear. Hence, the literal rule of interpretation will apply to it. No doubt, equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail. The law, which is contained in Rule 27(c), is clearly in favour of the appellantsIn Mimansa, the literal rule of interpretation is known as the Shruti or Abhida Principle. This is illustrated by the Garhapatya nyaya (In Mimansa Maxims are known as nyayas). There is the vedic verse: Aindrya garhapatyam upatishthate, which means By the Mantra addressed to Indra establish the household fire. This verse can possibly have several meanings viz. (1) worship Indra (2) worship Garhapatya (the household fire) (3) worship both, or (4) worship eitherHowever, since the word Garhapatyam is in the objective case, the verse has only one meaning, that is, worship Garhapatya. The word Aindrya means by Indra, and hence the verse means that by verses dedicated to Indra one should worship Garhapatya. The word Aindrya in this verse is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words Garhapatyam Upatishthate are the Shruti. According to the Mimansa principles, the Shruti (literal meaning) will prevail over the Linga (suggestive power)It is not necessary to go into details, but reference can be made to the Book Mimansa Rules of Interpretation by K.L.Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa Principles, the Sruti Principle or literal rule of interpretation will prevail over all other principles, e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc
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Commr. Of S.T., M.P Vs. Madhya Bharat Papers Ltd | No. A-3-41-81-(31)-ST-V dated 29.6.82 in respect of Inter State sale of goods manufactured by him by virtue of his holding an eligibility certificate in fulfilment of one of the conditions laid down in the said notification for eligibility, although he was not holding a Registration Certificate under sub-section (1) of Section 7 of the Central Sales Tax Act, 1956." 5. The High Court of Madhya Pradesh has answered the question in favour of the respondent-assessee forming an opinion that the eligibility certificate issued by the Directorate of Industries was conclusive and binding on the assessing authorities and they could not go into the question whether the respondent-assessee was eligible for the benefit of exemption inspite of his holding the eligibility certificate by entering into the question of the respondents registration whether it was under sub-section (1) or (2) of Section 7 of the Central Sales Tax Act. Feeling aggrieved the Revenue has come up in appeal before this Court. 6. It was submitted by the learned counsel for the appellant that on a full reading of the notification and placing a reasonable construction thereon the expression "...... registered under the Central Sales Tax, 1956", as employed in the first column of the notification should be understood as meaning the registration under sub-section (1) of Section 7 of the Central Sales Tax Act registration under sub-section (2) of Section 7 of the Central Sales Tax Act is not covered by the expression and is of no relevance for the purpose of claiming exemption under the notification. 7. Section 7 of the Central Sales Tax Act (relevant part thereof) reads as under : Registration of dealers - (1) Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order specify, and every such application shall contain such particulars as may be prescribed.(2) Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is no such law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1), and every such application shall contain such particulars as may be prescribed.Explanation. - For the purpose of this sub-section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate state notwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or a rebate of tax is admissible in respect thereof. xxx xxx xxx 8. A bare perusal of the above quoted provision goes to show that every dealer liable to pay tax under the Central Sales Tax Act shall secure a registration under sub-section (1) of Section 7. Such dealers as have a place of business in a State and are not liable to pay tax under the Central Act may still have themselves registered under sub-section (2) of Section 7 of the Central Sales Tax Act if (i) they are dealers liable to pay tax under the Sales Tax law of the appropriate State (notwithstanding the fact that the sales or purchases made by them are exempt from tax or a refund or a rebate of tax is admissible in respect thereof), or (ii) there is no State Legislation attracting liability to pay tax on such dealers. Such a prayer for registration shall be made to the same authority who grants registration under sub-section (1). Registration under sub-section (1) is compulsory; registration under sub-section (2) is optional. For the purpose of securing a registration under sub-section (2) obovesaid the dealer need not necessarily be liable to pay any amount of tax. 9. The learned counsel for the appellant submitted that the dealers liable to pay tax under the Central Act have been dealt with only under sub-section (1) of Section 7; sub-section (2) refers to registration under the sales-tax law of the appropriate State if there be one in force and in as much as the relevant notification dated 29.6.1982 deals with exemption from payment of tax under the Central Act, it is necessary that the dealer should have been registered under sub-section (1) of Section 7 of the Act. However, we find no merit in the contention. The language of the notification is plain and simple. It admits of no ambiguity. The requirement of Column (1) is satisfied if the dealer is registered under the State Act and the Central Act both; it is immaterial whether the registration under the Central Act is under sub-section (1) or sub-section (1) of Section 7 is certainly a registration under the Central Sales Tax Act. This is clear from the language of sub-section (2) of Section 7 which speaks, inter alia - "..... may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1) ....." 10. The learned counsel for the respondent-assessee has rightly pointed out that the certificate of registration valid from 12.11.1981 until cancelled was secured by the respondent though on the date of registration it was not liable to pay tax under the Central Act. Liability to pay tax arose on commencement of production and business on 10.1.1984 whereafter exemption from payment of sales-tax was claimed under the notification. Without regard to the fact whether the assessing authority was entitled to go behind the certificate of eligibility issued by the Directorate of Industries, the entitlement of the respondent for exemption from payment of tax under the notification was clearly made out as the requirements of column (1) of the notification were also satisfied. 11. | 0[ds]A bare perusal of the above quoted provision goes to show that every dealer liable to pay tax under the Central Sales Tax Act shall secure a registration under sub-section (1) of Section 7. Such dealers as have a place of business in a State and are not liable to pay tax under the Central Act may still have themselves registered under sub-section (2) of Section 7 of the Central Sales Tax Act if (i) they are dealers liable to pay tax under the Sales Tax law of the appropriate State (notwithstanding the fact that the sales or purchases made by them are exempt from tax or a refund or a rebate of tax is admissible in respect thereof), or (ii) there is no State Legislation attracting liability to pay tax on such dealers. Such a prayer for registration shall be made to the same authority who grants registration under sub-section (1). Registration under sub-section (1) is compulsory; registration under sub-section (2) is optional. For the purpose of securing a registration under sub-section (2) obovesaid the dealer need not necessarily be liable to pay any amount ofwe find no merit in the contention. The language of the notification is plain and simple. It admits of no ambiguity. The requirement of Column (1) is satisfied if the dealer is registered under the State Act and the Central Act both; it is immaterial whether the registration under the Central Act is underion (1) of Section 7 is certainly a registration under the Central Sales Tax Act. This is clear from the language of(2) of Section 7 which speaks, inter alia"..... may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to inty to pay tax arose on commencement of production and business on 10.1.1984 whereafter exemption from payment ofwas claimed under the notification. Without regard to the fact whether the assessing authority was entitled to go behind the certificate of eligibility issued by the Directorate of Industries, the entitlement of the respondent for exemption from payment of tax under the notification was clearly made out as the requirements of column (1) of the notification were also satisfied. | 0 | 1,838 | 418 | ### 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:
No. A-3-41-81-(31)-ST-V dated 29.6.82 in respect of Inter State sale of goods manufactured by him by virtue of his holding an eligibility certificate in fulfilment of one of the conditions laid down in the said notification for eligibility, although he was not holding a Registration Certificate under sub-section (1) of Section 7 of the Central Sales Tax Act, 1956." 5. The High Court of Madhya Pradesh has answered the question in favour of the respondent-assessee forming an opinion that the eligibility certificate issued by the Directorate of Industries was conclusive and binding on the assessing authorities and they could not go into the question whether the respondent-assessee was eligible for the benefit of exemption inspite of his holding the eligibility certificate by entering into the question of the respondents registration whether it was under sub-section (1) or (2) of Section 7 of the Central Sales Tax Act. Feeling aggrieved the Revenue has come up in appeal before this Court. 6. It was submitted by the learned counsel for the appellant that on a full reading of the notification and placing a reasonable construction thereon the expression "...... registered under the Central Sales Tax, 1956", as employed in the first column of the notification should be understood as meaning the registration under sub-section (1) of Section 7 of the Central Sales Tax Act registration under sub-section (2) of Section 7 of the Central Sales Tax Act is not covered by the expression and is of no relevance for the purpose of claiming exemption under the notification. 7. Section 7 of the Central Sales Tax Act (relevant part thereof) reads as under : Registration of dealers - (1) Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order specify, and every such application shall contain such particulars as may be prescribed.(2) Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is no such law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1), and every such application shall contain such particulars as may be prescribed.Explanation. - For the purpose of this sub-section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate state notwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or a rebate of tax is admissible in respect thereof. xxx xxx xxx 8. A bare perusal of the above quoted provision goes to show that every dealer liable to pay tax under the Central Sales Tax Act shall secure a registration under sub-section (1) of Section 7. Such dealers as have a place of business in a State and are not liable to pay tax under the Central Act may still have themselves registered under sub-section (2) of Section 7 of the Central Sales Tax Act if (i) they are dealers liable to pay tax under the Sales Tax law of the appropriate State (notwithstanding the fact that the sales or purchases made by them are exempt from tax or a refund or a rebate of tax is admissible in respect thereof), or (ii) there is no State Legislation attracting liability to pay tax on such dealers. Such a prayer for registration shall be made to the same authority who grants registration under sub-section (1). Registration under sub-section (1) is compulsory; registration under sub-section (2) is optional. For the purpose of securing a registration under sub-section (2) obovesaid the dealer need not necessarily be liable to pay any amount of tax. 9. The learned counsel for the appellant submitted that the dealers liable to pay tax under the Central Act have been dealt with only under sub-section (1) of Section 7; sub-section (2) refers to registration under the sales-tax law of the appropriate State if there be one in force and in as much as the relevant notification dated 29.6.1982 deals with exemption from payment of tax under the Central Act, it is necessary that the dealer should have been registered under sub-section (1) of Section 7 of the Act. However, we find no merit in the contention. The language of the notification is plain and simple. It admits of no ambiguity. The requirement of Column (1) is satisfied if the dealer is registered under the State Act and the Central Act both; it is immaterial whether the registration under the Central Act is under sub-section (1) or sub-section (1) of Section 7 is certainly a registration under the Central Sales Tax Act. This is clear from the language of sub-section (2) of Section 7 which speaks, inter alia - "..... may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1) ....." 10. The learned counsel for the respondent-assessee has rightly pointed out that the certificate of registration valid from 12.11.1981 until cancelled was secured by the respondent though on the date of registration it was not liable to pay tax under the Central Act. Liability to pay tax arose on commencement of production and business on 10.1.1984 whereafter exemption from payment of sales-tax was claimed under the notification. Without regard to the fact whether the assessing authority was entitled to go behind the certificate of eligibility issued by the Directorate of Industries, the entitlement of the respondent for exemption from payment of tax under the notification was clearly made out as the requirements of column (1) of the notification were also satisfied. 11.
### Response:
0
### Explanation:
A bare perusal of the above quoted provision goes to show that every dealer liable to pay tax under the Central Sales Tax Act shall secure a registration under sub-section (1) of Section 7. Such dealers as have a place of business in a State and are not liable to pay tax under the Central Act may still have themselves registered under sub-section (2) of Section 7 of the Central Sales Tax Act if (i) they are dealers liable to pay tax under the Sales Tax law of the appropriate State (notwithstanding the fact that the sales or purchases made by them are exempt from tax or a refund or a rebate of tax is admissible in respect thereof), or (ii) there is no State Legislation attracting liability to pay tax on such dealers. Such a prayer for registration shall be made to the same authority who grants registration under sub-section (1). Registration under sub-section (1) is compulsory; registration under sub-section (2) is optional. For the purpose of securing a registration under sub-section (2) obovesaid the dealer need not necessarily be liable to pay any amount ofwe find no merit in the contention. The language of the notification is plain and simple. It admits of no ambiguity. The requirement of Column (1) is satisfied if the dealer is registered under the State Act and the Central Act both; it is immaterial whether the registration under the Central Act is underion (1) of Section 7 is certainly a registration under the Central Sales Tax Act. This is clear from the language of(2) of Section 7 which speaks, inter alia"..... may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to inty to pay tax arose on commencement of production and business on 10.1.1984 whereafter exemption from payment ofwas claimed under the notification. Without regard to the fact whether the assessing authority was entitled to go behind the certificate of eligibility issued by the Directorate of Industries, the entitlement of the respondent for exemption from payment of tax under the notification was clearly made out as the requirements of column (1) of the notification were also satisfied.
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Shantabai Vs. State of Bombay & Others | difference between a tree and timber. It is to be noted that the exclusion is only of "standing timber" and not of "timber trees". 30. Timber is well enough known to be - "wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned". (Websters Collegiate Dictionary). Therefore, "standing timber" must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. 31. Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical facts of life cannot be altered by giving it another name and calling it "standing timber". But the amount of nourishment it takes, if it is felled at a reasonably early date, is to negligible that it can be ignored for all practical purposes and though, theoretically, there is no distinction between one class of tree and another, if the drawing of nourishment from the soil is the basis of the rule, as I hold it to be, the law is grounded, not so much on logical abstractions as on sound and practical commonsense. It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged; and here, this is the shape it has taken. 32. The distinction, set out above, has been made in a series of Indian cases that are collected in Mullas Transfer of Property Act, 4th edition, at pages 16 and 21. At page 16, the learned author says - "Standingtimberare trees fit for use for building or repairing houses. This is an exception to the general rule thatgrowing treesare immovable property." At page 21 he says - "Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they are movable property. But if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property." The learned author also refers to the English law and says at page 21 - "In English law an unconditional sale of growing trees to be cut by the purchaser, has been held to be a sale of an interest in land; but no so if it is stipulated that they are to be removed as soon as possible." 33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee. 34. Now how does the document in question regard this ? In the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it. 35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there. | 1[ds]I do not think it does. It is clumsily worded but I think that the real meaning is this. The petitioner is the proprietors wife and it seems that she was accustomed to do certain acts of management in his absence. The purpose of cl. (7) is to ensure that when she acts in that capacity she is not to have the right to make any alteration in the deed. There are no words of transfer or conveyance and I do not think any part of the proprietary rights, or any interest in them, are conveyed by this clause. It does not even confer rights of management. It only recites the existing state of affairs and either curtails or clarifies powers as manager that are assumed to exist when the proprietor is away23. Although the document repeatedly calls itself a lease, it confers no rights of enjoyment in the land. Clause (5) makes that clear, because it says"Only the lease of the forest woods is given to you."In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood24. Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950. But I need not consider that because this, being a writ petition under Art. 32, the petitioner must establish a fundamental right. For the reasons given in Ananda Beheras case (A), I would hold that she has none. This runs counter to Chhotebhai Jethabhai Patels case (B), but, as that was a decision of three Judges and the other five, I feel that we are bound to follow the later case, that is to say, Ananda Beheras case (A), especially as I think it lays down the law arightAs a matter of fact, the rights in the earlier case were held to flow from a licence and not from a contract simpliciter (see page 483 of S. C. R.) : (at p. 110 of A. I. R.), but it is true that the learned Judges held that a writ petition lay26. In so far as the petitioner rests her claim in contract simpliciter, I think she has no case because of the reasons given in Ananda Behras case (A) :"If the petitioners rights are no more than the right to obtain future goods under the State of Goods Act, then that is a purely personal right arising out of a contract is a purely personal right arising out of a contract to which the State of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right."Following the decision in Ananda Beheras case (A), I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is benefit that arises out of land. There is no difference there between the English and the Indian law. The English law will be found in 12 Halsburys Laws of England (Simonds Edition) pages 620 and 621In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immovable property33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the granteeIn the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there. | 1 | 4,906 | 1,220 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
difference between a tree and timber. It is to be noted that the exclusion is only of "standing timber" and not of "timber trees". 30. Timber is well enough known to be - "wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned". (Websters Collegiate Dictionary). Therefore, "standing timber" must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. 31. Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical facts of life cannot be altered by giving it another name and calling it "standing timber". But the amount of nourishment it takes, if it is felled at a reasonably early date, is to negligible that it can be ignored for all practical purposes and though, theoretically, there is no distinction between one class of tree and another, if the drawing of nourishment from the soil is the basis of the rule, as I hold it to be, the law is grounded, not so much on logical abstractions as on sound and practical commonsense. It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged; and here, this is the shape it has taken. 32. The distinction, set out above, has been made in a series of Indian cases that are collected in Mullas Transfer of Property Act, 4th edition, at pages 16 and 21. At page 16, the learned author says - "Standingtimberare trees fit for use for building or repairing houses. This is an exception to the general rule thatgrowing treesare immovable property." At page 21 he says - "Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they are movable property. But if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property." The learned author also refers to the English law and says at page 21 - "In English law an unconditional sale of growing trees to be cut by the purchaser, has been held to be a sale of an interest in land; but no so if it is stipulated that they are to be removed as soon as possible." 33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee. 34. Now how does the document in question regard this ? In the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it. 35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.
### Response:
1
### Explanation:
any interest in them, are conveyed by this clause. It does not even confer rights of management. It only recites the existing state of affairs and either curtails or clarifies powers as manager that are assumed to exist when the proprietor is away23. Although the document repeatedly calls itself a lease, it confers no rights of enjoyment in the land. Clause (5) makes that clear, because it says"Only the lease of the forest woods is given to you."In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood24. Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950. But I need not consider that because this, being a writ petition under Art. 32, the petitioner must establish a fundamental right. For the reasons given in Ananda Beheras case (A), I would hold that she has none. This runs counter to Chhotebhai Jethabhai Patels case (B), but, as that was a decision of three Judges and the other five, I feel that we are bound to follow the later case, that is to say, Ananda Beheras case (A), especially as I think it lays down the law arightAs a matter of fact, the rights in the earlier case were held to flow from a licence and not from a contract simpliciter (see page 483 of S. C. R.) : (at p. 110 of A. I. R.), but it is true that the learned Judges held that a writ petition lay26. In so far as the petitioner rests her claim in contract simpliciter, I think she has no case because of the reasons given in Ananda Behras case (A) :"If the petitioners rights are no more than the right to obtain future goods under the State of Goods Act, then that is a purely personal right arising out of a contract is a purely personal right arising out of a contract to which the State of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right."Following the decision in Ananda Beheras case (A), I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is benefit that arises out of land. There is no difference there between the English and the Indian law. The English law will be found in 12 Halsburys Laws of England (Simonds Edition) pages 620 and 621In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immovable property33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the granteeIn the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.
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Metal Box Company of India Ltd Vs. Their Workmen | and the deduction allowed under Section 101 (1) of the Income Tax Act. Similarly, where an assessee is a religious or charitable institution and its income either wholly or partially, as the case may be, is exempt under the Income Tax Act, such an employer to whom Section 32 of the Act does not apply is treated as a company in which the public are substantially interested and its income is to be assessed accordingly by the Tribunal and compute its liability for direct taxes. Clause (c) of Section 7 does away, for the purposes of Sections 6 and 7, the distinction between the liability of an individual and a Hindu Undivided Family under the Income Tax Act and provides that the income derived by such a Hindu Undivided Family is to be treated as the income of that employer as an individual. Likewise, where profits and gains of an employer include profits from export, a rebate allowed under the Income Tax Act on such profits is not to be taken into account while working out the tax liability under Section 6 (c). Also, the rebate allowed under any of the Acts levying direct taxes on sums spent on development of an industry is also not to be taken into account while computing the tax liability. It was, however, argued that the provisions of Section 7 lay down the only departure from the Income Tax Act and that except for that departure the Tribunal must assess the actual taxable income and arrive at the tax liability thereon at rates prevailing during the accounting year in question. In our view this submission is not correct.What Section 7 really means is that the Tribunal has to compute the direct taxes at the rates at which the income, gains and profits of the employer are taxed under the Income Tax Act and other such Acts during the accounting year in question. That is the reason why Section 6 (c) has the words is liable for and the words income, gains and profits. These words do not, however, mean that the Tribunal while computing direct taxes as a prior charge has to assess the actual taxable income and the taxes thereon. How can the Tribunal arrive at the amount of bonus to be paid to labour without first estimating the amount of taxes and deducting it from the gross profits and thus ascertaining the available surplus?If it were to reverse the process and first deduct bonus and ascertain the tax amount, it would have to do so on a somewhat ad hoc figure thus bringing about the same result deprecated by this Court in decisions referred to above.This and the other difficulties already pointed out must lead to the result that the Tribunal must estimate the amount of direct taxes on the balance of gross profits as worked out under Sections 4 and 6, but without deducting the bonus, then work out the quantum of taxes thereon at rates applicable during that year to the income, gains and profits of the employer and after deducting the amount of taxes so worked out arrive at the available surplus. Section 6 (c) being subject to Section 7 the computation has to be done without taking into account the items specified in Section 7 (a) and in the manner prescribed by the remaining clause of that section. This interpretation is commendable because: (1) it is consistent with the words is liable to pay in S. 6 (c) (2) it is in harmony with the provisions of Sections 4 and 6 and Schedule II, and (3) it is consistent with the intention of Parliament apparent from the scheme of computation of available surplus in the Act. The Act recognises the principle laid down in the Full Bench Formula that both labour and capital are entitled to a share in the profits. That is why 40 per cent of the available surplus is left to the capital and interest is allowed to the employer on paid up and working capitals while working out the gross profits. Parliament besides was or at any rate is presumed to have been aware that depreciation allowed under the Income Tax Act would not be sufficient for rehabilitation purposes. It did away with rehabilitation as a prior charge partly because there were complaints that it was being ill-used but partly also because it knew that the rebate in Income Tax Act on bonus paid would go to the employer with which he could recoup the depreciation which would be larger than the one allowed under Section 32 of the Income Tax Act. In our view it was for that reason that it did not lay down that bonus is to be deducted before computing the amount on which direct taxes are to be calculated under Section 6 (c). If Parliament intended to make a departure from the rule laid down by courts and tribunals that the bonus amount should be calculated after provision for tax was made and not before, we would have expected an express provision to that effect either in the Act or in the Schedules. In our view the contention urged by the Company that the tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under Section 6 but not the bonus payable to the employees is right. 28. In the result, the appellant Company succeeds on the questions of development rebate and the provision for gratuity amount. Its appeal on those questions is, therefore, allowed and to that extent the award is set aside. As regards the question of depreciation amount, the Tribunal will ascertain the amount afresh after giving the parties opportunity to lead such evidence as they desire and taking that amount and the amounts of development rebate and of the provision for gratuity in the light of this judgment the Tribunal will adjust its award and arrive at the quantum of bonus payable to the workmen. | 0[ds]In our view, an estimated liability under gratuity schemes such as the ones before us, even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act, if properly ascertainable and its present value is fairly discounted is deductible from the gross receipts while preparing the P. and L. account. It is recognised in trading circles and we find no rule or direction in the Bonus Act which prohibits such a practiceWe do not, therefore, see any justification for the apprehension felt by Mr. Chari, for, by trying to reduce the gross profits, the Company would land itself into being assessed on a higher net wealth. The Tribunal was, in our view, right in accepting the figure of Rs. 57 lacs and deducting interest thereon from the gross profitsIn our view it was for that reason that it did not lay down that bonus is to be deducted before computing the amount on which direct taxes are to be calculated under Section 6 (c). If Parliament intended to make a departure from the rule laid down by courts and tribunals that the bonus amount should be calculated after provision for tax was made and not before, we would have expected an express provision to that effect either in the Act or in the Schedules. In our view the contention urged by the Company that the tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under Section 6 but not the bonus payable to the employees is right28. In the result, the appellant Company succeeds on the questions of development rebate and the provision for gratuity amount. Its appeal on those questions is, therefore, allowed and to that extent the award is set aside. As regards the question of depreciation amount, the Tribunal will ascertain the amount afresh after giving the parties opportunity to lead such evidence as they desire and taking that amount and the amounts of development rebate and of the provision for gratuity in the light of this judgment the Tribunal will adjust its award and arrive at the quantum of bonus payable to the workmen. | 0 | 12,825 | 395 | ### 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:
and the deduction allowed under Section 101 (1) of the Income Tax Act. Similarly, where an assessee is a religious or charitable institution and its income either wholly or partially, as the case may be, is exempt under the Income Tax Act, such an employer to whom Section 32 of the Act does not apply is treated as a company in which the public are substantially interested and its income is to be assessed accordingly by the Tribunal and compute its liability for direct taxes. Clause (c) of Section 7 does away, for the purposes of Sections 6 and 7, the distinction between the liability of an individual and a Hindu Undivided Family under the Income Tax Act and provides that the income derived by such a Hindu Undivided Family is to be treated as the income of that employer as an individual. Likewise, where profits and gains of an employer include profits from export, a rebate allowed under the Income Tax Act on such profits is not to be taken into account while working out the tax liability under Section 6 (c). Also, the rebate allowed under any of the Acts levying direct taxes on sums spent on development of an industry is also not to be taken into account while computing the tax liability. It was, however, argued that the provisions of Section 7 lay down the only departure from the Income Tax Act and that except for that departure the Tribunal must assess the actual taxable income and arrive at the tax liability thereon at rates prevailing during the accounting year in question. In our view this submission is not correct.What Section 7 really means is that the Tribunal has to compute the direct taxes at the rates at which the income, gains and profits of the employer are taxed under the Income Tax Act and other such Acts during the accounting year in question. That is the reason why Section 6 (c) has the words is liable for and the words income, gains and profits. These words do not, however, mean that the Tribunal while computing direct taxes as a prior charge has to assess the actual taxable income and the taxes thereon. How can the Tribunal arrive at the amount of bonus to be paid to labour without first estimating the amount of taxes and deducting it from the gross profits and thus ascertaining the available surplus?If it were to reverse the process and first deduct bonus and ascertain the tax amount, it would have to do so on a somewhat ad hoc figure thus bringing about the same result deprecated by this Court in decisions referred to above.This and the other difficulties already pointed out must lead to the result that the Tribunal must estimate the amount of direct taxes on the balance of gross profits as worked out under Sections 4 and 6, but without deducting the bonus, then work out the quantum of taxes thereon at rates applicable during that year to the income, gains and profits of the employer and after deducting the amount of taxes so worked out arrive at the available surplus. Section 6 (c) being subject to Section 7 the computation has to be done without taking into account the items specified in Section 7 (a) and in the manner prescribed by the remaining clause of that section. This interpretation is commendable because: (1) it is consistent with the words is liable to pay in S. 6 (c) (2) it is in harmony with the provisions of Sections 4 and 6 and Schedule II, and (3) it is consistent with the intention of Parliament apparent from the scheme of computation of available surplus in the Act. The Act recognises the principle laid down in the Full Bench Formula that both labour and capital are entitled to a share in the profits. That is why 40 per cent of the available surplus is left to the capital and interest is allowed to the employer on paid up and working capitals while working out the gross profits. Parliament besides was or at any rate is presumed to have been aware that depreciation allowed under the Income Tax Act would not be sufficient for rehabilitation purposes. It did away with rehabilitation as a prior charge partly because there were complaints that it was being ill-used but partly also because it knew that the rebate in Income Tax Act on bonus paid would go to the employer with which he could recoup the depreciation which would be larger than the one allowed under Section 32 of the Income Tax Act. In our view it was for that reason that it did not lay down that bonus is to be deducted before computing the amount on which direct taxes are to be calculated under Section 6 (c). If Parliament intended to make a departure from the rule laid down by courts and tribunals that the bonus amount should be calculated after provision for tax was made and not before, we would have expected an express provision to that effect either in the Act or in the Schedules. In our view the contention urged by the Company that the tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under Section 6 but not the bonus payable to the employees is right. 28. In the result, the appellant Company succeeds on the questions of development rebate and the provision for gratuity amount. Its appeal on those questions is, therefore, allowed and to that extent the award is set aside. As regards the question of depreciation amount, the Tribunal will ascertain the amount afresh after giving the parties opportunity to lead such evidence as they desire and taking that amount and the amounts of development rebate and of the provision for gratuity in the light of this judgment the Tribunal will adjust its award and arrive at the quantum of bonus payable to the workmen.
### Response:
0
### Explanation:
In our view, an estimated liability under gratuity schemes such as the ones before us, even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act, if properly ascertainable and its present value is fairly discounted is deductible from the gross receipts while preparing the P. and L. account. It is recognised in trading circles and we find no rule or direction in the Bonus Act which prohibits such a practiceWe do not, therefore, see any justification for the apprehension felt by Mr. Chari, for, by trying to reduce the gross profits, the Company would land itself into being assessed on a higher net wealth. The Tribunal was, in our view, right in accepting the figure of Rs. 57 lacs and deducting interest thereon from the gross profitsIn our view it was for that reason that it did not lay down that bonus is to be deducted before computing the amount on which direct taxes are to be calculated under Section 6 (c). If Parliament intended to make a departure from the rule laid down by courts and tribunals that the bonus amount should be calculated after provision for tax was made and not before, we would have expected an express provision to that effect either in the Act or in the Schedules. In our view the contention urged by the Company that the tax liability is to be worked out by first working out the gross profits and deducting therefrom the prior charges under Section 6 but not the bonus payable to the employees is right28. In the result, the appellant Company succeeds on the questions of development rebate and the provision for gratuity amount. Its appeal on those questions is, therefore, allowed and to that extent the award is set aside. As regards the question of depreciation amount, the Tribunal will ascertain the amount afresh after giving the parties opportunity to lead such evidence as they desire and taking that amount and the amounts of development rebate and of the provision for gratuity in the light of this judgment the Tribunal will adjust its award and arrive at the quantum of bonus payable to the workmen.
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MINISTRY OF AYUSH Vs. DR. VANITHA R & ANR | have to be read together and harmoniously interpreted. It was not a case of regular vacancy but a casual vacancy that has arisen during the term of previous President. Thus, in our considered opinion, the period for which respondent No.1 was elected in March 2017 was confined for remainder of the term i.e. up to 4.7.2017, not beyond that.14. It was urged by the learned counsel appearing on behalf of the respondent No.1 that once Ministry had taken the decision under Section 4 (2) and had rejected the representation vide order dated 24.8.2017, it was not open to the Ministry to review the order and to take inconsistent view while passing the impugned order dated 8.3.2018, it should be held bound by its own order. There is no power of review with the Central Council.15. In our opinion, it is not the order of the Central Government which has to govern the tenure. Tenure is governed by Section 7 (3) read with Section 7(1). Even if there is no power of review the period for which election could be held was only up to 4th July, 2017. Whether there is an order by the Central Government or no order it cannot govern the tenure and the period for which the election was held could not have been extended even by the Ministry of Ayush by wrong interpretation of provisions and writ is not issued to perpetuate an illegality, particularly to enable holding the office unauthorizedly beyond period for which election was held. Thus, it is on this count also, we are not inclined to make any interference.16. Shri Pinaki Misra, learned senior counsel appearing on behalf of the respondent No.1 has placed reliance upon the Central Council of General Medicine (General) Regulations, 1976 (in Short ‘Regulations of 1976). He has pointed out on the strength of Regulation 5 (2) of the Regulations of 1976 that if the office of the President is vacant or in the circumstances risen is unable to exercise powers or discharge the function, his office is to be held by the Vice President in rotation for one year at a time. Thus, the Regulation 5 (2) contemplates that office of the President is to be held for a period of five years it cannot be cut short. The Regulation fortifies the stand taken by the Central Government in order passed earlier i.e. on 24.8.2017. Thus, this Court should not interfere.17. We have no hesitation in rejecting the submission as firstly, for the reason that Regulations cannot govern the provisions of the Act and secondly, we find that Regulation 5 (2) deals with powers of Vice President. The same is extracted hereunder:?5. Vice Presidents:(1) The Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act and Rules and Regulations made thereunder:(2) If the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year at a time shall act in his place and shall be exercise the powers and discharge the functions of the President.The order of the rotation shall be as below:(a) Vice President – Ayurveda(b) Vice-President – Unani(c) Vice-President – Sidha? 18. It is provided in Regulation 5 (1) that the Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act. As per Regulation 5 (2) if the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year of Ayurveda, Unani and Siddha branch and shall hold the office.19. The provisions of Regulation 5 are not at all attributed as the election had been held under Section 7(3) for the remainder of the term on 14.3.2017 as a ‘casual vacancy? had arisen. In case, the interpretation as suggested by learned senior counsel is accepted, in that case no election could have been held in March 2017 and vacancy would be required to be maintained till the period the post of President would have been held by the Member who represented from Uttarakhand which was came to an end on 4th July 2017. Nonetheless, once election has been held for such vacancy the tenure is to be for remainder of the period only as provided specifically under Section 7 (3).20. It is apparent from the notice issued for holding election that it was under Section 7(1) and it was clearly with respect to the casual vacancy. As such provisions contained in Section 7(3) would come into play. Nonmention of provisions of Section 7(3) would not govern the tenure for which election has to be held in the case of casual vacancy. Section 7(3) clearly provides that in the case of the casual vacancy the term of election is only for the remainder of the period for which outgoing person would have held the office. In our considered opinion, it has to be held on the proper interpretation of the said provisions that the term of election of the person who had been elected in the casual vacancy is only for the remainder of the period.21. In case it is held that an election under Section 7 (1) will be for a period of five years, and period cannot be curtailed then, if we read it with Regulation 5(1), ignoring provisions contained in Section 7 (3) no election could have been held before completion of five years. That is not what is contemplated by the provisions contained in Section 7 as and when vacancy arises in the office of President, Vice President or Member, obviously, an election has to be held not only for the post of the Member and also for the post held by him for remainder of the period. | 1[ds]9. A bare reading of the provisions contained in Section 7 makes it clear that person has to be first elected as Member of the CCIM for being elected as President or Vice President. By virtue of his holding the office as a Member, he holds the office of President or that of a Vice President. Once he ceases to be a Member, he automatically ceases to hold the office of the President or Vice President as the case may be10. No doubt about it that the President, Vice President or Member of a Central Council has to hold the office for a term of five years as provided under Section 7 read with Section 3 from the date of his election or nomination as the case may be or until his successor is duly elected or nominated, whichever is longer13. In the instant case, Member from Uttarakhand lost his membership to the CCIM. He would have held the post of the President for the period up to 4.7.2017, had he continued as Member of the representative of the CCIM from Uttarakhand. The casual vacancy of post of President had been caused. Thus, the tenure for which election to the post of President was to be, as provided under Section 7 (3). The provision of Section 7 (1) provides for a term of five years however the casual vacancy is dealt with under Section 7 (3) and both the provisions have to be read together and harmoniously interpreted. It was not a case of regular vacancy but a casual vacancy that has arisen during the term of previous President. Thus, in our considered opinion, the period for which respondent No.1 was elected in March 2017 was confined for remainder of the term i.e. up to 4.7.2017, not beyond that15. In our opinion, it is not the order of the Central Government which has to govern the tenure. Tenure is governed by Section 7 (3) read with Section 7(1). Even if there is no power of review the period for which election could be held was only up to 4th July, 2017. Whether there is an order by the Central Government or no order it cannot govern the tenure and the period for which the election was held could not have been extended even by the Ministry of Ayush by wrong interpretation of provisions and writ is not issued to perpetuate an illegality, particularly to enable holding the office unauthorizedly beyond period for which election was held. Thus, it is on this count also, we are not inclined to make any interference17. We have no hesitation in rejecting the submission as firstly, for the reason that Regulations cannot govern the provisions of the Act and secondly, we find that Regulation 5 (2) deals with powers of Vice President18. It is provided in Regulation 5 (1) that the Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act. As per Regulation 5 (2) if the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year of Ayurveda, Unani and Siddha branch and shall hold the office19. The provisions of Regulation 5 are not at all attributed as the election had been held under Section 7(3) for the remainder of the term on 14.3.2017 as a ‘casual vacancy? had arisen. In case, the interpretation as suggested by learned senior counsel is accepted, in that case no election could have been held in March 2017 and vacancy would be required to be maintained till the period the post of President would have been held by the Member who represented from Uttarakhand which was came to an end on 4th July 2017. Nonetheless, once election has been held for such vacancy the tenure is to be for remainder of the period only as provided specifically under Section 7 (3)20. It is apparent from the notice issued for holding election that it was under Section 7(1) and it was clearly with respect to the casual vacancy. As such provisions contained in Section 7(3) would come into play. Nonmention of provisions of Section 7(3) would not govern the tenure for which election has to be held in the case of casual vacancy. Section 7(3) clearly provides that in the case of the casual vacancy the term of election is only for the remainder of the period for which outgoing person would have held the office. In our considered opinion, it has to be held on the proper interpretation of the said provisions that the term of election of the person who had been elected in the casual vacancy is only for the remainder of the period21. In case it is held that an election under Section 7 (1) will be for a period of five years, and period cannot be curtailed then, if we read it with Regulation 5(1), ignoring provisions contained in Section 7 (3) no election could have been held before completion of five years. That is not what is contemplated by the provisions contained in Section 7 as and when vacancy arises in the office of President, Vice President or Member, obviously, an election has to be held not only for the post of the Member and also for the post held by him for remainder of the period. | 1 | 3,156 | 1,026 | ### 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:
have to be read together and harmoniously interpreted. It was not a case of regular vacancy but a casual vacancy that has arisen during the term of previous President. Thus, in our considered opinion, the period for which respondent No.1 was elected in March 2017 was confined for remainder of the term i.e. up to 4.7.2017, not beyond that.14. It was urged by the learned counsel appearing on behalf of the respondent No.1 that once Ministry had taken the decision under Section 4 (2) and had rejected the representation vide order dated 24.8.2017, it was not open to the Ministry to review the order and to take inconsistent view while passing the impugned order dated 8.3.2018, it should be held bound by its own order. There is no power of review with the Central Council.15. In our opinion, it is not the order of the Central Government which has to govern the tenure. Tenure is governed by Section 7 (3) read with Section 7(1). Even if there is no power of review the period for which election could be held was only up to 4th July, 2017. Whether there is an order by the Central Government or no order it cannot govern the tenure and the period for which the election was held could not have been extended even by the Ministry of Ayush by wrong interpretation of provisions and writ is not issued to perpetuate an illegality, particularly to enable holding the office unauthorizedly beyond period for which election was held. Thus, it is on this count also, we are not inclined to make any interference.16. Shri Pinaki Misra, learned senior counsel appearing on behalf of the respondent No.1 has placed reliance upon the Central Council of General Medicine (General) Regulations, 1976 (in Short ‘Regulations of 1976). He has pointed out on the strength of Regulation 5 (2) of the Regulations of 1976 that if the office of the President is vacant or in the circumstances risen is unable to exercise powers or discharge the function, his office is to be held by the Vice President in rotation for one year at a time. Thus, the Regulation 5 (2) contemplates that office of the President is to be held for a period of five years it cannot be cut short. The Regulation fortifies the stand taken by the Central Government in order passed earlier i.e. on 24.8.2017. Thus, this Court should not interfere.17. We have no hesitation in rejecting the submission as firstly, for the reason that Regulations cannot govern the provisions of the Act and secondly, we find that Regulation 5 (2) deals with powers of Vice President. The same is extracted hereunder:?5. Vice Presidents:(1) The Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act and Rules and Regulations made thereunder:(2) If the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year at a time shall act in his place and shall be exercise the powers and discharge the functions of the President.The order of the rotation shall be as below:(a) Vice President – Ayurveda(b) Vice-President – Unani(c) Vice-President – Sidha? 18. It is provided in Regulation 5 (1) that the Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act. As per Regulation 5 (2) if the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year of Ayurveda, Unani and Siddha branch and shall hold the office.19. The provisions of Regulation 5 are not at all attributed as the election had been held under Section 7(3) for the remainder of the term on 14.3.2017 as a ‘casual vacancy? had arisen. In case, the interpretation as suggested by learned senior counsel is accepted, in that case no election could have been held in March 2017 and vacancy would be required to be maintained till the period the post of President would have been held by the Member who represented from Uttarakhand which was came to an end on 4th July 2017. Nonetheless, once election has been held for such vacancy the tenure is to be for remainder of the period only as provided specifically under Section 7 (3).20. It is apparent from the notice issued for holding election that it was under Section 7(1) and it was clearly with respect to the casual vacancy. As such provisions contained in Section 7(3) would come into play. Nonmention of provisions of Section 7(3) would not govern the tenure for which election has to be held in the case of casual vacancy. Section 7(3) clearly provides that in the case of the casual vacancy the term of election is only for the remainder of the period for which outgoing person would have held the office. In our considered opinion, it has to be held on the proper interpretation of the said provisions that the term of election of the person who had been elected in the casual vacancy is only for the remainder of the period.21. In case it is held that an election under Section 7 (1) will be for a period of five years, and period cannot be curtailed then, if we read it with Regulation 5(1), ignoring provisions contained in Section 7 (3) no election could have been held before completion of five years. That is not what is contemplated by the provisions contained in Section 7 as and when vacancy arises in the office of President, Vice President or Member, obviously, an election has to be held not only for the post of the Member and also for the post held by him for remainder of the period.
### Response:
1
### Explanation:
9. A bare reading of the provisions contained in Section 7 makes it clear that person has to be first elected as Member of the CCIM for being elected as President or Vice President. By virtue of his holding the office as a Member, he holds the office of President or that of a Vice President. Once he ceases to be a Member, he automatically ceases to hold the office of the President or Vice President as the case may be10. No doubt about it that the President, Vice President or Member of a Central Council has to hold the office for a term of five years as provided under Section 7 read with Section 3 from the date of his election or nomination as the case may be or until his successor is duly elected or nominated, whichever is longer13. In the instant case, Member from Uttarakhand lost his membership to the CCIM. He would have held the post of the President for the period up to 4.7.2017, had he continued as Member of the representative of the CCIM from Uttarakhand. The casual vacancy of post of President had been caused. Thus, the tenure for which election to the post of President was to be, as provided under Section 7 (3). The provision of Section 7 (1) provides for a term of five years however the casual vacancy is dealt with under Section 7 (3) and both the provisions have to be read together and harmoniously interpreted. It was not a case of regular vacancy but a casual vacancy that has arisen during the term of previous President. Thus, in our considered opinion, the period for which respondent No.1 was elected in March 2017 was confined for remainder of the term i.e. up to 4.7.2017, not beyond that15. In our opinion, it is not the order of the Central Government which has to govern the tenure. Tenure is governed by Section 7 (3) read with Section 7(1). Even if there is no power of review the period for which election could be held was only up to 4th July, 2017. Whether there is an order by the Central Government or no order it cannot govern the tenure and the period for which the election was held could not have been extended even by the Ministry of Ayush by wrong interpretation of provisions and writ is not issued to perpetuate an illegality, particularly to enable holding the office unauthorizedly beyond period for which election was held. Thus, it is on this count also, we are not inclined to make any interference17. We have no hesitation in rejecting the submission as firstly, for the reason that Regulations cannot govern the provisions of the Act and secondly, we find that Regulation 5 (2) deals with powers of Vice President18. It is provided in Regulation 5 (1) that the Vice Presidents shall exercise such powers and perform such duties as may be assigned to him by or under the provisions of the Act. As per Regulation 5 (2) if the office of the President is vacant or if the President for any reason is unable to exercise the powers or discharge the functions of his office, the Vice Presidents in rotation, for one year of Ayurveda, Unani and Siddha branch and shall hold the office19. The provisions of Regulation 5 are not at all attributed as the election had been held under Section 7(3) for the remainder of the term on 14.3.2017 as a ‘casual vacancy? had arisen. In case, the interpretation as suggested by learned senior counsel is accepted, in that case no election could have been held in March 2017 and vacancy would be required to be maintained till the period the post of President would have been held by the Member who represented from Uttarakhand which was came to an end on 4th July 2017. Nonetheless, once election has been held for such vacancy the tenure is to be for remainder of the period only as provided specifically under Section 7 (3)20. It is apparent from the notice issued for holding election that it was under Section 7(1) and it was clearly with respect to the casual vacancy. As such provisions contained in Section 7(3) would come into play. Nonmention of provisions of Section 7(3) would not govern the tenure for which election has to be held in the case of casual vacancy. Section 7(3) clearly provides that in the case of the casual vacancy the term of election is only for the remainder of the period for which outgoing person would have held the office. In our considered opinion, it has to be held on the proper interpretation of the said provisions that the term of election of the person who had been elected in the casual vacancy is only for the remainder of the period21. In case it is held that an election under Section 7 (1) will be for a period of five years, and period cannot be curtailed then, if we read it with Regulation 5(1), ignoring provisions contained in Section 7 (3) no election could have been held before completion of five years. That is not what is contemplated by the provisions contained in Section 7 as and when vacancy arises in the office of President, Vice President or Member, obviously, an election has to be held not only for the post of the Member and also for the post held by him for remainder of the period.
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Kartar Singh & Others Vs. The State Of Punjab | the State authorities is that they misconceived their remedy. However provocative and indecent or unbefitting a responsible citizen of the State the conduct of the appellants was,the charge which was levelled against the appellants was one under section 9 of the Act and before the prosecution could succeed they had not only to prove that what the appellants did was against decency and was defamatory of these individuals but also was such that it undermined public order, decency, or morality or was tantamount to an incitement to an offence prejudicial to the maintenance of public order. The learned counsel for the state very rightly conceded that the statement could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court of defamation prejudicial to the security of the State nor did they tend to overthrow the State. Howsoever reprehensible these slogans were, they certainly would not have that effect. The only way in which he sought to bring these slogans uttered by the appellants within the mischief of section 9 of the Act was by urging before us that the statements undermine public order, decency or morality and that they were tantamount to an incitement to an offence prejudicial to the maintenance of public order. In support of this contention he referred us to the evidence of Ram Rakha. P. W. 2, Sub-Inspector, C.I.D., who had accompanied the procession :"There was a sufficient number of public men there and they felt annoyed over these slogans. The police had sufficient arrangement and had there been no arrangement there might have been a dispute."There was also the evidence of Gurdit Singh, P. W. 3 :-"There were many other persons of the public, with the procession. People took these slogans ill".and Sunder Singh, P. W. 4 :-"There were many other persons of the public. The slogans had a bad effect on the public.11. It is significant to observe that, in the initial report made by the Sub-Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogan. The two there withnesses Gurdit Singh, P. W. 3 and Sunder Singh, P. W. 4, were shown in their cross examination to have been the associates of the police in investigations which they used to carry on and were not at all worthy of credence. These, statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited. Even assuming that some members of the public who had congregated near the Prabhat Studio felt annoyed at these slogans and took them ill it is far cry from that annoyance to undermining of the public order, decency or morality or incitement to an offence prejudicial to the maintenance of public order. The only offence prejudicial to the maintenance of public order which could be thought of in this context was that of rioting and there is not the slightest evidence on record to justify an inference that the effect of the utterance of these slogans by the appellants against the Transport Minister and the Chief Minister would, but for the police arrangements, have led to the undermining of the public order or would have led to rioting which would be certainly prejudicial to the maintenance of public order. Indecent and vulgar though these slogans were as directed against the Transport Minister and the Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the members of the procession protesting against the scheme of nationalised motor transport was hardly calculated to undermine decency or morality the strata of society from which the appellants came being habituated to indulge freely in such vulgar abuses without any the slightest effect on the persons hearing the same.12. These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of public order. So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. "Those who file a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were underserved and unjust; yet they must bear with them and submit to be misunderstood for a time" (Per Cockburn, C. J. in Seymour v. Butterworth, (1862) 3 F and F 372 (376, 377) (A), and see the dicta of the Judges in R. v. Sir R. Carden (1879) 5 QBD 1(B)."Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant appendage to his office". (Per Bramwell, B. in Kelley v. Sherlock (1866) 1 Q. B. 686 (689) (C) Public men in such position may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give an importance to the same by prosecuting the persons responsible for the same.13. While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out above fall within the mischief of that section. | 0[ds]6. On the evidence on record, there is no doubt that the appellants were members of the procession and did utter those slogans against the Transport Minister and the Chief Minister of the Punjab Government.It cannot be denied that the appellants by words spoken published statements in relation to the Transport Minister and the Chief Minister of the Punjab Government. A futile argument was advanced before us by the advocate of the appellants that this condition was not satisfied but we need not pause to consider the same.The appellants were no doubt affected by the policy of the Punjab Government to nationalise motor transport and the Transport Minister and the Chief Minister were really responsible for sponsoring that policy. Their tirade, therefore, was against both these individuals and, in the demonstration which the appellants held against that policy, they gave vent to violent expression of opinion against them and in the slogans which they uttered, used expressions which were certainlylearned counsel for the state very rightly conceded that the statement could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court of defamation prejudicial to the security of the State nor did they tend to overthrow the State. Howsoever reprehensible these slogans were, they certainly would not have that effect.It is significant to observe that, in the initial report made by the Sub-Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogan. The two there withnesses Gurdit Singh, P. W. 3 and Sunder Singh, P. W. 4, were shown in their cross examination to have been the associates of the police in investigations which they used to carry on and were not at all worthy of credence. These, statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited.These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of publicfar as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy.13. While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out above fall within the mischief of that section. | 0 | 2,243 | 544 | ### 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 State authorities is that they misconceived their remedy. However provocative and indecent or unbefitting a responsible citizen of the State the conduct of the appellants was,the charge which was levelled against the appellants was one under section 9 of the Act and before the prosecution could succeed they had not only to prove that what the appellants did was against decency and was defamatory of these individuals but also was such that it undermined public order, decency, or morality or was tantamount to an incitement to an offence prejudicial to the maintenance of public order. The learned counsel for the state very rightly conceded that the statement could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court of defamation prejudicial to the security of the State nor did they tend to overthrow the State. Howsoever reprehensible these slogans were, they certainly would not have that effect. The only way in which he sought to bring these slogans uttered by the appellants within the mischief of section 9 of the Act was by urging before us that the statements undermine public order, decency or morality and that they were tantamount to an incitement to an offence prejudicial to the maintenance of public order. In support of this contention he referred us to the evidence of Ram Rakha. P. W. 2, Sub-Inspector, C.I.D., who had accompanied the procession :"There was a sufficient number of public men there and they felt annoyed over these slogans. The police had sufficient arrangement and had there been no arrangement there might have been a dispute."There was also the evidence of Gurdit Singh, P. W. 3 :-"There were many other persons of the public, with the procession. People took these slogans ill".and Sunder Singh, P. W. 4 :-"There were many other persons of the public. The slogans had a bad effect on the public.11. It is significant to observe that, in the initial report made by the Sub-Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogan. The two there withnesses Gurdit Singh, P. W. 3 and Sunder Singh, P. W. 4, were shown in their cross examination to have been the associates of the police in investigations which they used to carry on and were not at all worthy of credence. These, statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited. Even assuming that some members of the public who had congregated near the Prabhat Studio felt annoyed at these slogans and took them ill it is far cry from that annoyance to undermining of the public order, decency or morality or incitement to an offence prejudicial to the maintenance of public order. The only offence prejudicial to the maintenance of public order which could be thought of in this context was that of rioting and there is not the slightest evidence on record to justify an inference that the effect of the utterance of these slogans by the appellants against the Transport Minister and the Chief Minister would, but for the police arrangements, have led to the undermining of the public order or would have led to rioting which would be certainly prejudicial to the maintenance of public order. Indecent and vulgar though these slogans were as directed against the Transport Minister and the Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the members of the procession protesting against the scheme of nationalised motor transport was hardly calculated to undermine decency or morality the strata of society from which the appellants came being habituated to indulge freely in such vulgar abuses without any the slightest effect on the persons hearing the same.12. These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of public order. So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. "Those who file a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were underserved and unjust; yet they must bear with them and submit to be misunderstood for a time" (Per Cockburn, C. J. in Seymour v. Butterworth, (1862) 3 F and F 372 (376, 377) (A), and see the dicta of the Judges in R. v. Sir R. Carden (1879) 5 QBD 1(B)."Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant appendage to his office". (Per Bramwell, B. in Kelley v. Sherlock (1866) 1 Q. B. 686 (689) (C) Public men in such position may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give an importance to the same by prosecuting the persons responsible for the same.13. While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out above fall within the mischief of that section.
### Response:
0
### Explanation:
6. On the evidence on record, there is no doubt that the appellants were members of the procession and did utter those slogans against the Transport Minister and the Chief Minister of the Punjab Government.It cannot be denied that the appellants by words spoken published statements in relation to the Transport Minister and the Chief Minister of the Punjab Government. A futile argument was advanced before us by the advocate of the appellants that this condition was not satisfied but we need not pause to consider the same.The appellants were no doubt affected by the policy of the Punjab Government to nationalise motor transport and the Transport Minister and the Chief Minister were really responsible for sponsoring that policy. Their tirade, therefore, was against both these individuals and, in the demonstration which the appellants held against that policy, they gave vent to violent expression of opinion against them and in the slogans which they uttered, used expressions which were certainlylearned counsel for the state very rightly conceded that the statement could not be said to undermine the security of the State or friendly relations with foreign States nor did they amount to contempt of Court of defamation prejudicial to the security of the State nor did they tend to overthrow the State. Howsoever reprehensible these slogans were, they certainly would not have that effect.It is significant to observe that, in the initial report made by the Sub-Inspector Ram Rakha as also the Diary Report prepared by him, no mention had been made by him of the members of the public having felt annoyed over these slogan. The two there withnesses Gurdit Singh, P. W. 3 and Sunder Singh, P. W. 4, were shown in their cross examination to have been the associates of the police in investigations which they used to carry on and were not at all worthy of credence. These, statements, therefore, in regard to the members of the public having felt annoyed over these slogans uttered by the appellants, were liable to be discredited.These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of publicfar as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy.13. While commending thus the conduct of the Transport Minister and the Chief Minister of the Punjab Government, we cannot help observing that the step which the State authorities took against the appellants in prosecuting them under section 9 of the Act was unjustified as the slogans uttered by the appellants did not under the circumstances set out above fall within the mischief of that section.
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Raghu Seeds & Farms and others Vs. Union of India and others | Yogeshwar Dayal, J. By Transferred Case Nos. 4, 5 and 48 of 1986 and Writ Petition (Civil) Nos. 15337-15338 of 1984 the petitioners herein have challenged the constitutional validity of the Seeds (Control) Order, 1983 purported to have been issued in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) as being unconstitutional, ultra vires and void. The petitioners have also challenged the declaration of seeds of food-crops and seeds of fruits and vegetables as the essential commodities by the Government of India, Ministry of Civil Supplies contained in the order dated February 24, 1983 also issued under the Act. 2.Section 2 of the Act is the definitions section and inter alia clause (a) thereof defines essential commodity. The relevant part of clause (a) reads as follows: (a) essential commodity means any of the following cl asses of commodities- (i) cattle fodder, including oil cakes and other concentrates; (ii) coal, including coke and other derivatives; (iii)component parts and accessories of automobiles; (iv) cotton and woollen textiles; (iv-a) drugs; Explanation.-In this sub-clause drug has the meaning assigned to it in clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940); (v) foodstuffs, including edible oilseeds and oils; (vi) to (x) (xi)any other class of commodity which the Central Government may, by notified order, declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue o f Entry 33 in List III in the Seventh Schedule to the Constitution; * 3.By the impugned notified order dated February 24, 1983 the Central Government in exercise of the powers conferred by sub-clause (xi) of clause (a) of Section 2 of t he Act declared the following seeds used for sowing or planting (including seedlings and tubers, bulbs, rhizomes, roots, cuttings and all types of grafts and other vegetatively propagated material of food-crops or cattle fodder) to be essential commodities for the purpose of the said Act, namely- (i) Seeds of food-crops and seeds of fruits and vegetables; (ii) Seeds of cattle fodder and (iii)Jute seed;. 281 4. After issuing the said notified order declaring inter alia the seeds of food-crops and seeds of fruits and vegetables as essential commodities the Central Government issued the impugned Seeds (Control) Order, 1983 purported to be in exercise of the powers conferred by Section 3 of the Act. It inter alia contemplates that the persons carrying on business of selling, exporting or importing seeds to obtain licence. It also inter alia provides for grant and/or refusal of the licence; renewal o f the licence and various ancillary provisions for suspension, cancellation of licence and submissions of various returns including provision of punishment for violation of the Seeds (Control) Order, 1983. 5. The basic question involved in these matters is the validity of the notified order dated February 24, 1983 whereby inter alia seeds of food-crops and seeds of fruits and vegetables have been declared as essential commodities for the purposes of the Act. The validity of the notified order inter alia is challenged on the ground that the seeds of food-crops and seeds of fruits and vegetables are not class of commodities which could be declared by the Central Government as essential commodities for the purposes of the Act . The argument is that it is so because such a commodity is not a commodity in respect of which the Parliament has powers to make law by virtue of Entry 33 of List III of the Seventh Schedule to the Constitution of India. Entry 33 of List III of t he Seventh Schedule to the Constitution of India reads as follows: 33. Trade and commerce in, and the production, supply and distribution of, - (a) (b) Foodstuffs, including edible oilseeds and oils; (c) to (e) 6. It is clear that the aforesaid Entry 33 deals with not merely trade and commerce in, but also the production, supply and distribution of, various products and articles mentioned in clauses (a) to (e) thereof. Clause (b) of Entry 33 mentions foodstuffs as a class of commodity which includes edible oilseeds and oils. The main thing to be noticed is that the entry deals with not merely trade and commerce in foodstuffs but also in relation thereof in production, supply and distribution as well. Once it is clear that Entry 33 also deals with production, it is obvious that the seeds are a vital commodity having direct connection with the production of the foodstuffs to which it relates. Therefore, seeds of foodstuffs is an item which has direct bearing with the production of the foodstuffs and consequently it is competent for the Parliament as well as States to make laws in relation to seeds of foodstuffs. Surely seeds of food-crops and seeds of fruits and vegetables relate to foodstuffs. 7. The various entries in the three lists are fields of legislation. [See Calcutta Gas Company (Proprietary) Ltd. v. State of W. B. 1 and Har akchand Ratanchand Banthia v. Union of India2] 8. Again it is well established that the language of the various entries should be given the widest scope of which their meaning is fairly capable. 9. Therefore there is no doubt that the notified order dated February 24, 1983 was intra vires the powers conferred by sub-clause (xi) of clause (a) of Section 2 of the Act. Once the said notified order becomes valid, the Seeds (Control) Order, 1983 is within the power of the Central Government under Section 3 of the Act. | 0[ds]4. After issuing the said notified order declaring inter alia the seeds ofs and seeds of fruits and vegetables as essential commodities the Central Government issued the impugned Seeds (Control) Order, 1983 purported to be in exercise of the powers conferred by Section 3 of the Act. It inter alia contemplates that the persons carrying on business of selling, exporting or importing seeds to obtain licence. It also inter alia provides for grant and/or refusal of the licence; renewal o f the licence and various ancillary provisions for suspension, cancellation of licence and submissions of various returns including provision of punishment for violation of the Seeds (Control) Order, 1983. | 0 | 1,095 | 126 | ### 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:
Yogeshwar Dayal, J. By Transferred Case Nos. 4, 5 and 48 of 1986 and Writ Petition (Civil) Nos. 15337-15338 of 1984 the petitioners herein have challenged the constitutional validity of the Seeds (Control) Order, 1983 purported to have been issued in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) as being unconstitutional, ultra vires and void. The petitioners have also challenged the declaration of seeds of food-crops and seeds of fruits and vegetables as the essential commodities by the Government of India, Ministry of Civil Supplies contained in the order dated February 24, 1983 also issued under the Act. 2.Section 2 of the Act is the definitions section and inter alia clause (a) thereof defines essential commodity. The relevant part of clause (a) reads as follows: (a) essential commodity means any of the following cl asses of commodities- (i) cattle fodder, including oil cakes and other concentrates; (ii) coal, including coke and other derivatives; (iii)component parts and accessories of automobiles; (iv) cotton and woollen textiles; (iv-a) drugs; Explanation.-In this sub-clause drug has the meaning assigned to it in clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940); (v) foodstuffs, including edible oilseeds and oils; (vi) to (x) (xi)any other class of commodity which the Central Government may, by notified order, declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue o f Entry 33 in List III in the Seventh Schedule to the Constitution; * 3.By the impugned notified order dated February 24, 1983 the Central Government in exercise of the powers conferred by sub-clause (xi) of clause (a) of Section 2 of t he Act declared the following seeds used for sowing or planting (including seedlings and tubers, bulbs, rhizomes, roots, cuttings and all types of grafts and other vegetatively propagated material of food-crops or cattle fodder) to be essential commodities for the purpose of the said Act, namely- (i) Seeds of food-crops and seeds of fruits and vegetables; (ii) Seeds of cattle fodder and (iii)Jute seed;. 281 4. After issuing the said notified order declaring inter alia the seeds of food-crops and seeds of fruits and vegetables as essential commodities the Central Government issued the impugned Seeds (Control) Order, 1983 purported to be in exercise of the powers conferred by Section 3 of the Act. It inter alia contemplates that the persons carrying on business of selling, exporting or importing seeds to obtain licence. It also inter alia provides for grant and/or refusal of the licence; renewal o f the licence and various ancillary provisions for suspension, cancellation of licence and submissions of various returns including provision of punishment for violation of the Seeds (Control) Order, 1983. 5. The basic question involved in these matters is the validity of the notified order dated February 24, 1983 whereby inter alia seeds of food-crops and seeds of fruits and vegetables have been declared as essential commodities for the purposes of the Act. The validity of the notified order inter alia is challenged on the ground that the seeds of food-crops and seeds of fruits and vegetables are not class of commodities which could be declared by the Central Government as essential commodities for the purposes of the Act . The argument is that it is so because such a commodity is not a commodity in respect of which the Parliament has powers to make law by virtue of Entry 33 of List III of the Seventh Schedule to the Constitution of India. Entry 33 of List III of t he Seventh Schedule to the Constitution of India reads as follows: 33. Trade and commerce in, and the production, supply and distribution of, - (a) (b) Foodstuffs, including edible oilseeds and oils; (c) to (e) 6. It is clear that the aforesaid Entry 33 deals with not merely trade and commerce in, but also the production, supply and distribution of, various products and articles mentioned in clauses (a) to (e) thereof. Clause (b) of Entry 33 mentions foodstuffs as a class of commodity which includes edible oilseeds and oils. The main thing to be noticed is that the entry deals with not merely trade and commerce in foodstuffs but also in relation thereof in production, supply and distribution as well. Once it is clear that Entry 33 also deals with production, it is obvious that the seeds are a vital commodity having direct connection with the production of the foodstuffs to which it relates. Therefore, seeds of foodstuffs is an item which has direct bearing with the production of the foodstuffs and consequently it is competent for the Parliament as well as States to make laws in relation to seeds of foodstuffs. Surely seeds of food-crops and seeds of fruits and vegetables relate to foodstuffs. 7. The various entries in the three lists are fields of legislation. [See Calcutta Gas Company (Proprietary) Ltd. v. State of W. B. 1 and Har akchand Ratanchand Banthia v. Union of India2] 8. Again it is well established that the language of the various entries should be given the widest scope of which their meaning is fairly capable. 9. Therefore there is no doubt that the notified order dated February 24, 1983 was intra vires the powers conferred by sub-clause (xi) of clause (a) of Section 2 of the Act. Once the said notified order becomes valid, the Seeds (Control) Order, 1983 is within the power of the Central Government under Section 3 of the Act.
### Response:
0
### Explanation:
4. After issuing the said notified order declaring inter alia the seeds ofs and seeds of fruits and vegetables as essential commodities the Central Government issued the impugned Seeds (Control) Order, 1983 purported to be in exercise of the powers conferred by Section 3 of the Act. It inter alia contemplates that the persons carrying on business of selling, exporting or importing seeds to obtain licence. It also inter alia provides for grant and/or refusal of the licence; renewal o f the licence and various ancillary provisions for suspension, cancellation of licence and submissions of various returns including provision of punishment for violation of the Seeds (Control) Order, 1983.
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MD.ABRAR Vs. MEGHALAYA BOARD OF WAKF | grants. In the case of documents relating to private property, the words have now become words of limitation and as such they indicate absolute estate and in the case of absolute estate agnate heirs being residuaries exclude cognates under the Mahomedan law. But where these words occur in documents laying down the line of devolution for a religious office, such as the managership of a wakf, the above said consequence does not necessarily follow. There the words generation after generation must be taken literally and we do not see any reason why at least in the case of descendants of a person claiming through females they should be excluded. It has been contended relying on Abdul Ganne Kasam v. Hussen Miya Rahimtula and Shah Ahmud Hossain v. Shah Mohiooddeen Ahmad that descendants through females should not be regarded as members of the family and must be regarded as strangers. The word family itself is ambiguous. In this decision it is used in the sense of agnate heirs. In a larger sense a mans descendants through females are equally members of his family and certainly under Muhammadan Law are heirs though they are remote heirs and they can come in by the use of the appropriate words, for example, by the use of the word Ahfad, as in Shekh Karimodin v. Nawab Mir Sayad Alam Khan. The passages relied on in the various text books no more than summarise the effect of these decisions and do not help us further. The word Naslan certainly includes all descendants: vide Tyabjis Muhammadan Law, S. 508 and Naslan bad Naslan indicates all descendants; That is how it was translated in Ali Muqtada Khan v. Abdul Hamid Khan. On the whole therefore we come to the conclusion that the words batnam bad batnam in Ex. D and the words naslan bad naslan in Ex. M are not intended to exclude the descendants through females. Baillies Mahomedan Law, page 579 does not indicate a contrary view. We have therefore to consider the relative merits of all the claimants including the descendants through females. (emphasis supplied) Accordingly, the High Court in Syed Mahomed Ghouse (supra) confirmed the subordinate courts finding that the son of a female descendant would be qualified to manage the waqf property. 12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each case. We may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬ship. Therefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendants. Hence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation. 13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. Section 63 of the 1995 Act is useful to refer to at this juncture: 63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit. | 1[ds]Asraful Alam Shani (supra) was a case similar to the present case wherein two persons were appointed as joint mutawallis, and after the death of one, the surviving mutawalli claimed to be the sole mutawalli. The High Court upon consideration of the terms of the waqf deed in Asraful Alam Shani found that the intention of the waqifs was that upon the death of any one of them, the survivor shall be the sole mutawalli. Any person nominated by either of the mutawallis as their successor during their lifetime could only assume the office when both joint mutawallis died9. From the above discussion it can be said that ordinarily, upon the death of one of the joint mutawallis, the surviving mutawalli becomes the sole mutawalli of the waqf property. In a case where there are more than two joint mutawallis, after the death of one of the mutawallis, only the remaining mutawallis would be entitled to continue as joint mutawallis. Any successor nominated by the deceased mutawalli can only assume office after the death of the original mutawallis, unless there is an express or implied direction in the waqfnama to the contraryHence in the present case, it has to be seen what scheme of succession was laid down in the waqf deed dated 9.11.1936 (relevant portion quoted supra). Upon perusal of the terms of the waqf deed, we are of the considered opinion that the waqif intended that after the death of any of the original joint mutawallis, the survivor was required to nominate a person from the waqifs family line to succeed the deceasedIt is crucial to note that Clause 2 of the waqf deed dated 9.11.1936 provides that upon the death of either of the joint mutawallis, the survivor shall be the sole mutawalli for the time being. (emphasis supplied) This differentiates the waqf deed from the present waqf deed in Asraful Alam Shani (supra) where it was simpliciter stated that upon the death of either of the joint mutawallis, the survivor shall become the sole mutawalli. The phrasing of the waqf deed dated 9.11.1936 indicates that the waqif intended that after the death of either of the mutawallis, the survivor shall continue as the sole mutawalli only for a temporary period. In the interim, the survivor is required to nominate a competent successor to the deceased mutawalli from the waqifs family line, and thereafter, the said successor shall have the right to nominate his successor (i.e. successors successor) from the same sourceFurther, having regard to the fact that the waqf was constituted of properties belonging to Md. Haji and Kammu Mia, it can be inferred that the waqif intended that the succeeding mutawalli should be nominated from the descendants of the deceased mutawalli. It is unreasonable that the waqif would have wanted the surviving mutawalli to continue as a sole mutawalli, and administer the properties of the deceased in exclusion of the family members of the deceased mutawalli, unless the family line of the deceased mutawalli was to be exhaustedOur interpretation of the waqf deed in the above terms is supported by the order of the Assam Wakf Board dated 4.3.1973 allowing Respondent No. 2s claim to be appointed as joint mutawalli together with the deceased Kammu Mia. The Wakf Board strongly condemned the deceased Kammu Mia for continuing as sole mutawalli and observed that this indicated a desire on his part to misappropriate the income of the waqf for his own family, to the exclusion of the other descendants of the waqifThe aforesaid order of the Wakf Board has not been challenged by the respondents in the present appeal at any point of time. We find it difficult to understand how it can lie to Respondent No. 2 to seek appointment as joint mutawalli after his fathers death as his fathers heir and deny the same right to the descendants of his erstwhile co¬ mutawalli Kammu MiaImportantly, we find from a careful perusal of the decision, that the High Court in Md. Eshaque (supra) did not rule as a matter of law that mutawalli-ship can never devolve upon the descendants through the female line. In the same decision, the High Court noted that in an earlier decision of the Bombay High Court in Sheikh Karimodin v. Nawab Mir Sayad Alam Khan, 10 Bom. 119., it was held that the expression ahfad, if used in the waqf deed, would be wide enough to cover descendants of the daughter as well. The clauses of the waqf deed in Md. Eshaque also expressly indicated that preference was to be given to the male issue over the female issue12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each caseWe may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬shipTherefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendantsHence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. | 1 | 4,925 | 1,417 | ### 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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grants. In the case of documents relating to private property, the words have now become words of limitation and as such they indicate absolute estate and in the case of absolute estate agnate heirs being residuaries exclude cognates under the Mahomedan law. But where these words occur in documents laying down the line of devolution for a religious office, such as the managership of a wakf, the above said consequence does not necessarily follow. There the words generation after generation must be taken literally and we do not see any reason why at least in the case of descendants of a person claiming through females they should be excluded. It has been contended relying on Abdul Ganne Kasam v. Hussen Miya Rahimtula and Shah Ahmud Hossain v. Shah Mohiooddeen Ahmad that descendants through females should not be regarded as members of the family and must be regarded as strangers. The word family itself is ambiguous. In this decision it is used in the sense of agnate heirs. In a larger sense a mans descendants through females are equally members of his family and certainly under Muhammadan Law are heirs though they are remote heirs and they can come in by the use of the appropriate words, for example, by the use of the word Ahfad, as in Shekh Karimodin v. Nawab Mir Sayad Alam Khan. The passages relied on in the various text books no more than summarise the effect of these decisions and do not help us further. The word Naslan certainly includes all descendants: vide Tyabjis Muhammadan Law, S. 508 and Naslan bad Naslan indicates all descendants; That is how it was translated in Ali Muqtada Khan v. Abdul Hamid Khan. On the whole therefore we come to the conclusion that the words batnam bad batnam in Ex. D and the words naslan bad naslan in Ex. M are not intended to exclude the descendants through females. Baillies Mahomedan Law, page 579 does not indicate a contrary view. We have therefore to consider the relative merits of all the claimants including the descendants through females. (emphasis supplied) Accordingly, the High Court in Syed Mahomed Ghouse (supra) confirmed the subordinate courts finding that the son of a female descendant would be qualified to manage the waqf property. 12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each case. We may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬ship. Therefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendants. Hence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation. 13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. Section 63 of the 1995 Act is useful to refer to at this juncture: 63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.
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time being. (emphasis supplied) This differentiates the waqf deed from the present waqf deed in Asraful Alam Shani (supra) where it was simpliciter stated that upon the death of either of the joint mutawallis, the survivor shall become the sole mutawalli. The phrasing of the waqf deed dated 9.11.1936 indicates that the waqif intended that after the death of either of the mutawallis, the survivor shall continue as the sole mutawalli only for a temporary period. In the interim, the survivor is required to nominate a competent successor to the deceased mutawalli from the waqifs family line, and thereafter, the said successor shall have the right to nominate his successor (i.e. successors successor) from the same sourceFurther, having regard to the fact that the waqf was constituted of properties belonging to Md. Haji and Kammu Mia, it can be inferred that the waqif intended that the succeeding mutawalli should be nominated from the descendants of the deceased mutawalli. It is unreasonable that the waqif would have wanted the surviving mutawalli to continue as a sole mutawalli, and administer the properties of the deceased in exclusion of the family members of the deceased mutawalli, unless the family line of the deceased mutawalli was to be exhaustedOur interpretation of the waqf deed in the above terms is supported by the order of the Assam Wakf Board dated 4.3.1973 allowing Respondent No. 2s claim to be appointed as joint mutawalli together with the deceased Kammu Mia. The Wakf Board strongly condemned the deceased Kammu Mia for continuing as sole mutawalli and observed that this indicated a desire on his part to misappropriate the income of the waqf for his own family, to the exclusion of the other descendants of the waqifThe aforesaid order of the Wakf Board has not been challenged by the respondents in the present appeal at any point of time. We find it difficult to understand how it can lie to Respondent No. 2 to seek appointment as joint mutawalli after his fathers death as his fathers heir and deny the same right to the descendants of his erstwhile co¬ mutawalli Kammu MiaImportantly, we find from a careful perusal of the decision, that the High Court in Md. Eshaque (supra) did not rule as a matter of law that mutawalli-ship can never devolve upon the descendants through the female line. In the same decision, the High Court noted that in an earlier decision of the Bombay High Court in Sheikh Karimodin v. Nawab Mir Sayad Alam Khan, 10 Bom. 119., it was held that the expression ahfad, if used in the waqf deed, would be wide enough to cover descendants of the daughter as well. The clauses of the waqf deed in Md. Eshaque also expressly indicated that preference was to be given to the male issue over the female issue12. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalli-ship. As Mulla notes on page 90 and as observed in Fyzees Outlines of Muhammedan Law (5 th edn., 2008, Prof. Tahir Mahmood ed., page 339), daughters children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalli-ship mentioned supra, it is the interpretation of the waqf deed which is germane in each caseWe may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (See Aliyathammuda Beethathebiyyappura Pookoya & Ors. v. Pattakal Cheriyakoya & Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalli¬shipTherefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli¬ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mias descendants would naturally be Haji Elahi Bakshs descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli¬ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafis descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafis descendantsHence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mias daughters descendants, as part of his family line. The High Courts finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mias descendants only after the waqifs direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office.
|
Commissioner of Income Tax-6 Vs. Bharat Bijlee Limited | parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, the Tribunal held that Section 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, Section 50B was also inapplicable.19. We are of the opinion that the findings of fact rendered by the Tribunal from paragraph 40 and in relation to Ground No.2 are thus rendered by applying the legal principles to the facts and circumstances of the assessees transaction. In the given facts and circumstances and going by the clauses of the Scheme and reading them harmoniously and together, the Tribunal held that the transfer of Lift Division comes within the purview of Section 2(47) of the Act but cannot be termed as a slump sale.20. This finding of fact cannot be said to be perverse or based on no material. It also cannot be said to be vitiated by an error of law apparent on the face of the record. It is in these circumstances, we find that this appeal does not raise any substantial question of law.21. It also does not raise any substantial question of law because the alternative argument, though formulated for consideration before the Assessing Officer and covered by question No.4(iii), is not pressed before us.22. Before us, the emphasis of the revenue is on the applicability of Section 2(42C) of the Income Tax Act, 1961.23. Before parting, we must make a reference and in all fairness to a Division Bench judgment of the Delhi High Court rendered in the case of SRIE Infrastructure Finance Ltd. (supra). This decision is heavily relied upon by Mr.Suresh Kumar, learned counsel appearing for the revenue in support of this appeal. Mr.Suresh Kumar submits that the order of the Tribunal runs contrary to the law laid down in the judgment of the Delhi High Court. The Delhi High Court has considered the matter in the light of the amendments made to the Income tax Act, 1961, particularly, by the Finance Act, 1999, with effect from 1st April, 2000.24. We see no force in the contention of Mr.Suresh Kumar. Firstly, it is not necessary for us to decide any wider question or larger controversy. The judgment of the Delhi High Court would apply provided the transfer is by way of a sale. Before the Delhi High Court, facts were that the petitioner Company was engaged in project financing through term loans and leasing in specified sectors. For the assessment year 2009-20010, the petitioner had disclosed loss of more than Rs.76 crores in their return. No return was filed for the assessment year 2010-2011. The book loss was more than Rs.72 crores. An application was filed before the Settlement Commission for the two assessment years and disclosing additional income. The Settlement Commission passed an order and which is termed as final order in paragraph 4 of the judgment of the Delhi High Court, determining and deciding various questions which are raised in the writ petition. In the writ petition, the only aspect was that of taxability of Rs.375 lacs under Section 50B of the Income Tax Act as capital gains on slump sale paid under the Scheme of Arrangement to the petitioner by its subsidiary. The Settlement Commission held that the amount of Rs.375 lacs received by the petitioner from its subsidiary on transfer of its project finance business and assets based on financing business including its shareholding in SRIE Insurance Broking Pvt. Ltd. was taxable under Section 50B of the Act as a slump sale.25. The argument of the petitioner was that this is a transfer under the Scheme of Arrangement but is not a sale. The Scheme of Arrangement was sanctioned by the High Court of Calcutta. The argument was that this is a transfer of a statutory interest and character. Section 50B therefore had no application as the Scheme of Arrangement is not a slump sale.26. It is in dealing with that argument and in the peculiar facts that the Delhi High Court held that the petitioners contentions cannot be accepted. The petitioner before the Delhi High Court had admitted that there was a monetary consideration in the Scheme of Arrangement. The money was paid and additionally shares of a third company were issued in favour of the assessee. Thus, the consideration was in money as also shares and not shares or bonds exclusively. The transfer could not be termed as an exchange but a sale. In that light the Delhi High Court held that the consideration of Rs.375 lacs was received on transfer of the project finance business of the assessees subsidiary including its shareholding in another company. Therefore, the transaction itself was by way of a sale and not an exchange.27. There is no necessity for us to analyze the circumstances in which the Section 50B was inserted in the statute book. Before us, the issue as to whether the conclusions reached by the Honble Supreme Court in the case of Motors & General Stores (Pvt) Ltd. (supra) would still hold good or that they would not be the enabling principles after the amendment to the Income Tax Act, does not arise at all. We proceed on the footing that the statute was amended with some specific object and purpose. However, we are in agreement with the learned senior counsel appearing for the assessee before us that the applicability of Section 50B would have to be considered in the facts and circumstances of each case. If the transfer is by way of sale, only then it could be termed as a slump sale and then Section 50B would be attracted. It is in these circumstances and going by the facts of the present case that we have decided the present appeal. No larger question or wider controversy need be decided as we are of the opinion that even the judgment rendered by the Delhi High Court is distinguishable on facts. | 0[ds]10. At the outset, the counsel agreed that the question posed at paragraph 4(i), namely, the deduction claimed by the assessee on account of the provisions for warranty is concerned, that is fully covered in favour of the assessee and against the revenue by the judgment of the Honble Supreme Court in the case of Rotork Controls Pvt. Ltd. (supra). The appeal, therefore, does not raise any substantial question of law in relation to this deduction.11. The appeal survives now in relation to the transfer of Lift Division.12. In relation to that, what has come on record and admittedly is that, during the assessment year in question, namely,the assessee transferred its Lift Division to M/s. Tiger Elevators Pvt. Ltd., according to the Assessing Officer, for a consideration of Rs.36.5 crores. The Company transferred its Lift Field Operations Undertaking to Tiger Elevators Pvt. Ltd. under the Scheme of Arrangement. That was by invoking Section 391 read with Section 394 of the Companies Act, 1956. That scheme was sanctioned by this Court. The order of the Court is effective from 23rd December, 2004. The Assessing Officer notes that the transfer of the undertaking took place in exchange of preference shares and bonds issued by Tiger Elevators Pvt. Ltd. as per fair valuation report obtained from Bansi S. Mehta & Co., dated 21st October,Tribunal analyzed the transaction/transfer in the present case in the backdrop of the legal principles. The Tribunal referred to the judgment of the Honble Supreme Court in the case of Commissioner of Income Tax, Andhra Pradesh v/s Motors & General Stores (P) Ltd., reported in (1967) Vol.66 ITR 692.In the light of the principles laid down in the above referred decision, the Tribunal concluded in paragraph 40 that the Scheme of Arrangement approved by this Court in the present case, cannot be said to be a sale of the Lift Division or undertaking by the assessee. The Tribunal referred to Clause 3.1 of the Scheme. It then referred to Clause 1.36 in its entirety. Then, it referred to Clause 14.1 of the Scheme.18. The Tribunal then held that, a reading of the clauses in the Scheme of Arrangement shows that the transfer of the undertaking has took place in exchange for issue of preference shares and bonds. It held that, merely because there was quantification when bonds/preference shares were issued, would not mean that the monetary consideration was determined and its discharge was only by way of issue of bonds/preference shares. In other words, the Tribunal held and as a fact that this is not a case where the consideration was determined and decided by parties in terms of money but its disbursement was to be in terms of allotment or issue of bonds/preference shares. In fact, all the clauses read together and the entire Scheme of Arrangement envisages transfer of the Lift Division not for any monetary consideration. The Scheme does not refer to any monetary consideration for the transfer. The parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, the Tribunal held that Section 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, Section 50B was also inapplicable.19. We are of the opinion that the findings of fact rendered by the Tribunal from paragraph 40 and in relation to Ground No.2 are thus rendered by applying the legal principles to the facts and circumstances of the assessees transaction. In the given facts and circumstances and going by the clauses of the Scheme and reading them harmoniously and together, the Tribunal held that the transfer of Lift Division comes within the purview of Section 2(47) of the Act but cannot be termed as a slump sale.20. This finding of fact cannot be said to be perverse or based on no material. It also cannot be said to be vitiated by an error of law apparent on the face of the record. It is in these circumstances, we find that this appeal does not raise any substantial question of law.21. It also does not raise any substantial question of law because the alternative argument, though formulated for consideration before the Assessing Officer and covered by question No.4(iii), is not pressed before us.22. Before us, the emphasis of the revenue is on the applicability of Section 2(42C) of the Income Tax Act, 1961.23.Before parting, we must make a reference and in all fairness to a Division Bench judgment of the Delhi High Court rendered in the case of SRIE Infrastructure Finance Ltd. (supra).We see no force in the contention of Mr.Suresh Kumar. Firstly, it is not necessary for us to decide any wider question or larger controversy. The judgment of the Delhi High Court would apply provided the transfer is by way of a sale. Before the Delhi High Court, facts were that the petitioner Company was engaged in project financing through term loans and leasing in specified sectors. For the assessment yearthe petitioner had disclosed loss of more than Rs.76 crores in their return. No return was filed for the assessment yearThe book loss was more than Rs.72 crores. An application was filed before the Settlement Commission for the two assessment years and disclosing additional income. The Settlement Commission passed an order and which is termed as final order in paragraph 4 of the judgment of the Delhi High Court, determining and deciding various questions which are raised in the writ petition. In the writ petition, the only aspect was that of taxability of Rs.375 lacs under Section 50B of the Income Tax Act as capital gains on slump sale paid under the Scheme of Arrangement to the petitioner by its subsidiary. The Settlement Commission held that the amount of Rs.375 lacs received by the petitioner from its subsidiary on transfer of its project finance business and assets based on financing business including its shareholding in SRIE Insurance Broking Pvt. Ltd. was taxable under Section 50B of the Act as a slump sale.The argument of the petitioner was that this is a transfer under the Scheme of Arrangement but is not a sale. The Scheme of Arrangement was sanctioned by the High Court of Calcutta. The argument was that this is a transfer of a statutory interest and character. Section 50B therefore had no application as the Scheme of Arrangement is not a slump sale.It is in dealing with that argument and in the peculiar facts that the Delhi High Court held that the petitioners contentions cannot be accepted. The petitioner before the Delhi High Court had admitted that there was a monetary consideration in the Scheme of Arrangement. The money was paid and additionally shares of a third company were issued in favour of the assessee. Thus, the consideration was in money as also shares and not shares or bonds exclusively. The transfer could not be termed as an exchange but a sale. In that light the Delhi High Court held that the consideration of Rs.375 lacs was received on transfer of the project finance business of the assessees subsidiary including its shareholding in another company. Therefore, the transaction itself was by way of a sale and not an exchange.27. There is no necessity for us to analyze the circumstances in which the Section 50B was inserted in the statute book. Before us, the issue as to whether the conclusions reached by the Honble Supreme Court in the case of Motors & General Stores (Pvt) Ltd. (supra) would still hold good or that they would not be the enabling principles after the amendment to the Income Tax Act, does not arise at all. We proceed on the footing that the statute was amended with some specific object and purpose. However, we are in agreement with the learned senior counsel appearing for the assessee before us that the applicability of Section 50B would have to be considered in the facts and circumstances of each case. If the transfer is by way of sale, only then it could be termed as a slump sale and then Section 50B would be attracted. It is in these circumstances and going by the facts of the present case that we have decided the present appeal. No larger question or wider controversy need be decided as we are of the opinion that even the judgment rendered by the Delhi High Court is distinguishable on facts. | 0 | 4,326 | 1,554 | ### 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:
parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, the Tribunal held that Section 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, Section 50B was also inapplicable.19. We are of the opinion that the findings of fact rendered by the Tribunal from paragraph 40 and in relation to Ground No.2 are thus rendered by applying the legal principles to the facts and circumstances of the assessees transaction. In the given facts and circumstances and going by the clauses of the Scheme and reading them harmoniously and together, the Tribunal held that the transfer of Lift Division comes within the purview of Section 2(47) of the Act but cannot be termed as a slump sale.20. This finding of fact cannot be said to be perverse or based on no material. It also cannot be said to be vitiated by an error of law apparent on the face of the record. It is in these circumstances, we find that this appeal does not raise any substantial question of law.21. It also does not raise any substantial question of law because the alternative argument, though formulated for consideration before the Assessing Officer and covered by question No.4(iii), is not pressed before us.22. Before us, the emphasis of the revenue is on the applicability of Section 2(42C) of the Income Tax Act, 1961.23. Before parting, we must make a reference and in all fairness to a Division Bench judgment of the Delhi High Court rendered in the case of SRIE Infrastructure Finance Ltd. (supra). This decision is heavily relied upon by Mr.Suresh Kumar, learned counsel appearing for the revenue in support of this appeal. Mr.Suresh Kumar submits that the order of the Tribunal runs contrary to the law laid down in the judgment of the Delhi High Court. The Delhi High Court has considered the matter in the light of the amendments made to the Income tax Act, 1961, particularly, by the Finance Act, 1999, with effect from 1st April, 2000.24. We see no force in the contention of Mr.Suresh Kumar. Firstly, it is not necessary for us to decide any wider question or larger controversy. The judgment of the Delhi High Court would apply provided the transfer is by way of a sale. Before the Delhi High Court, facts were that the petitioner Company was engaged in project financing through term loans and leasing in specified sectors. For the assessment year 2009-20010, the petitioner had disclosed loss of more than Rs.76 crores in their return. No return was filed for the assessment year 2010-2011. The book loss was more than Rs.72 crores. An application was filed before the Settlement Commission for the two assessment years and disclosing additional income. The Settlement Commission passed an order and which is termed as final order in paragraph 4 of the judgment of the Delhi High Court, determining and deciding various questions which are raised in the writ petition. In the writ petition, the only aspect was that of taxability of Rs.375 lacs under Section 50B of the Income Tax Act as capital gains on slump sale paid under the Scheme of Arrangement to the petitioner by its subsidiary. The Settlement Commission held that the amount of Rs.375 lacs received by the petitioner from its subsidiary on transfer of its project finance business and assets based on financing business including its shareholding in SRIE Insurance Broking Pvt. Ltd. was taxable under Section 50B of the Act as a slump sale.25. The argument of the petitioner was that this is a transfer under the Scheme of Arrangement but is not a sale. The Scheme of Arrangement was sanctioned by the High Court of Calcutta. The argument was that this is a transfer of a statutory interest and character. Section 50B therefore had no application as the Scheme of Arrangement is not a slump sale.26. It is in dealing with that argument and in the peculiar facts that the Delhi High Court held that the petitioners contentions cannot be accepted. The petitioner before the Delhi High Court had admitted that there was a monetary consideration in the Scheme of Arrangement. The money was paid and additionally shares of a third company were issued in favour of the assessee. Thus, the consideration was in money as also shares and not shares or bonds exclusively. The transfer could not be termed as an exchange but a sale. In that light the Delhi High Court held that the consideration of Rs.375 lacs was received on transfer of the project finance business of the assessees subsidiary including its shareholding in another company. Therefore, the transaction itself was by way of a sale and not an exchange.27. There is no necessity for us to analyze the circumstances in which the Section 50B was inserted in the statute book. Before us, the issue as to whether the conclusions reached by the Honble Supreme Court in the case of Motors & General Stores (Pvt) Ltd. (supra) would still hold good or that they would not be the enabling principles after the amendment to the Income Tax Act, does not arise at all. We proceed on the footing that the statute was amended with some specific object and purpose. However, we are in agreement with the learned senior counsel appearing for the assessee before us that the applicability of Section 50B would have to be considered in the facts and circumstances of each case. If the transfer is by way of sale, only then it could be termed as a slump sale and then Section 50B would be attracted. It is in these circumstances and going by the facts of the present case that we have decided the present appeal. No larger question or wider controversy need be decided as we are of the opinion that even the judgment rendered by the Delhi High Court is distinguishable on facts.
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0
### Explanation:
issue of bonds/preference shares. In other words, the Tribunal held and as a fact that this is not a case where the consideration was determined and decided by parties in terms of money but its disbursement was to be in terms of allotment or issue of bonds/preference shares. In fact, all the clauses read together and the entire Scheme of Arrangement envisages transfer of the Lift Division not for any monetary consideration. The Scheme does not refer to any monetary consideration for the transfer. The parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, the Tribunal held that Section 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, Section 50B was also inapplicable.19. We are of the opinion that the findings of fact rendered by the Tribunal from paragraph 40 and in relation to Ground No.2 are thus rendered by applying the legal principles to the facts and circumstances of the assessees transaction. In the given facts and circumstances and going by the clauses of the Scheme and reading them harmoniously and together, the Tribunal held that the transfer of Lift Division comes within the purview of Section 2(47) of the Act but cannot be termed as a slump sale.20. This finding of fact cannot be said to be perverse or based on no material. It also cannot be said to be vitiated by an error of law apparent on the face of the record. It is in these circumstances, we find that this appeal does not raise any substantial question of law.21. It also does not raise any substantial question of law because the alternative argument, though formulated for consideration before the Assessing Officer and covered by question No.4(iii), is not pressed before us.22. Before us, the emphasis of the revenue is on the applicability of Section 2(42C) of the Income Tax Act, 1961.23.Before parting, we must make a reference and in all fairness to a Division Bench judgment of the Delhi High Court rendered in the case of SRIE Infrastructure Finance Ltd. (supra).We see no force in the contention of Mr.Suresh Kumar. Firstly, it is not necessary for us to decide any wider question or larger controversy. The judgment of the Delhi High Court would apply provided the transfer is by way of a sale. Before the Delhi High Court, facts were that the petitioner Company was engaged in project financing through term loans and leasing in specified sectors. For the assessment yearthe petitioner had disclosed loss of more than Rs.76 crores in their return. No return was filed for the assessment yearThe book loss was more than Rs.72 crores. An application was filed before the Settlement Commission for the two assessment years and disclosing additional income. The Settlement Commission passed an order and which is termed as final order in paragraph 4 of the judgment of the Delhi High Court, determining and deciding various questions which are raised in the writ petition. In the writ petition, the only aspect was that of taxability of Rs.375 lacs under Section 50B of the Income Tax Act as capital gains on slump sale paid under the Scheme of Arrangement to the petitioner by its subsidiary. The Settlement Commission held that the amount of Rs.375 lacs received by the petitioner from its subsidiary on transfer of its project finance business and assets based on financing business including its shareholding in SRIE Insurance Broking Pvt. Ltd. was taxable under Section 50B of the Act as a slump sale.The argument of the petitioner was that this is a transfer under the Scheme of Arrangement but is not a sale. The Scheme of Arrangement was sanctioned by the High Court of Calcutta. The argument was that this is a transfer of a statutory interest and character. Section 50B therefore had no application as the Scheme of Arrangement is not a slump sale.It is in dealing with that argument and in the peculiar facts that the Delhi High Court held that the petitioners contentions cannot be accepted. The petitioner before the Delhi High Court had admitted that there was a monetary consideration in the Scheme of Arrangement. The money was paid and additionally shares of a third company were issued in favour of the assessee. Thus, the consideration was in money as also shares and not shares or bonds exclusively. The transfer could not be termed as an exchange but a sale. In that light the Delhi High Court held that the consideration of Rs.375 lacs was received on transfer of the project finance business of the assessees subsidiary including its shareholding in another company. Therefore, the transaction itself was by way of a sale and not an exchange.27. There is no necessity for us to analyze the circumstances in which the Section 50B was inserted in the statute book. Before us, the issue as to whether the conclusions reached by the Honble Supreme Court in the case of Motors & General Stores (Pvt) Ltd. (supra) would still hold good or that they would not be the enabling principles after the amendment to the Income Tax Act, does not arise at all. We proceed on the footing that the statute was amended with some specific object and purpose. However, we are in agreement with the learned senior counsel appearing for the assessee before us that the applicability of Section 50B would have to be considered in the facts and circumstances of each case. If the transfer is by way of sale, only then it could be termed as a slump sale and then Section 50B would be attracted. It is in these circumstances and going by the facts of the present case that we have decided the present appeal. No larger question or wider controversy need be decided as we are of the opinion that even the judgment rendered by the Delhi High Court is distinguishable on facts.
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Kirshna Texport & Capital Markets Ltd Vs. ILA A Agrawal & Others | speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.” 13. With these principles in mind, we now consider the provisions in question. According to Section 138, where any cheque drawn by a person on an account maintained by him is returned by the Bank unpaid for reasons mentioned in said Section such person shall be deemed to have committed an offence. The proviso to the Section stipulates three conditions on the satisfaction of which the offence is said to be completed. The proviso inter alia obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing to “the drawer of the cheque” and if “the drawer of the cheque” fails to make the payment of the said amount within 15 days of the receipt of said notice, the stages stipulated in the proviso stand fulfilled. The notice under Section 138 is required to be given to “the drawer” of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. 14. Section 141 states that if the person committing an offence under Section 138 is a Company, every director of such Company who was in charge of and responsible to that Company for conduct of its business shall also be deemed to be guilty. The reason for creating vicarious liability is plainly that a juristic entity i.e. a Company would be run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Section 141 again does not lay down any requirement that in such eventuality the directors must individually be issued separate notices under Section 138. The persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to the ‘drawer’ Company is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138. 15. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that point to issue notices to all the directors, whose names the payee may not even be aware of at that stage. Under Second proviso to Section 138, the notice of demand has to be made within 30 days of the dishonour of cheque and the third proviso gives 15 days time to the drawer to make the payment of the amount and escape the penal consequences. Under clause (a) of Section 142, the complaint must be filed within one month of the date on which the cause of action arises under the third proviso to Section 138. Thus a complaint can be filed within the aggregate period of seventy five days from the dishonour, by which time a complainant can gather requisite information as regards names and other details as to who were in charge of and how they were responsible for the affairs of the Company. But if we accept the logic that has weighed with the High Court in the present case, such period gets reduced to 30 days only. Furthermore, unlike proviso to clause (b) of Section 142 of the Act, such period is non-extendable. The summary remedy created for the benefit of a drawee of a dishonoured cheque will thus be rendered completely cumbersome and capable of getting frustrated. 16. In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act. | 1[ds]10. Since the High Court has read into Section 138 of the Act the requirement that separate notices ought to be given to the directors, without which they cannot be made vicariously liable, the principles concerning interpretative function of the Court may be advertedproviso inter alia obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing todrawer of thethe drawerfails to make the payment of the said amount within 15 days of the receipt of said notice, the stages stipulated in the proviso stand fulfilled. The notice under Section 138 is required to be given toof the cheque so as to givean opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other thane persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to theCompany is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138.In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act. | 1 | 4,420 | 421 | ### 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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speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.” 13. With these principles in mind, we now consider the provisions in question. According to Section 138, where any cheque drawn by a person on an account maintained by him is returned by the Bank unpaid for reasons mentioned in said Section such person shall be deemed to have committed an offence. The proviso to the Section stipulates three conditions on the satisfaction of which the offence is said to be completed. The proviso inter alia obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing to “the drawer of the cheque” and if “the drawer of the cheque” fails to make the payment of the said amount within 15 days of the receipt of said notice, the stages stipulated in the proviso stand fulfilled. The notice under Section 138 is required to be given to “the drawer” of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. 14. Section 141 states that if the person committing an offence under Section 138 is a Company, every director of such Company who was in charge of and responsible to that Company for conduct of its business shall also be deemed to be guilty. The reason for creating vicarious liability is plainly that a juristic entity i.e. a Company would be run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Section 141 again does not lay down any requirement that in such eventuality the directors must individually be issued separate notices under Section 138. The persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to the ‘drawer’ Company is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138. 15. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that point to issue notices to all the directors, whose names the payee may not even be aware of at that stage. Under Second proviso to Section 138, the notice of demand has to be made within 30 days of the dishonour of cheque and the third proviso gives 15 days time to the drawer to make the payment of the amount and escape the penal consequences. Under clause (a) of Section 142, the complaint must be filed within one month of the date on which the cause of action arises under the third proviso to Section 138. Thus a complaint can be filed within the aggregate period of seventy five days from the dishonour, by which time a complainant can gather requisite information as regards names and other details as to who were in charge of and how they were responsible for the affairs of the Company. But if we accept the logic that has weighed with the High Court in the present case, such period gets reduced to 30 days only. Furthermore, unlike proviso to clause (b) of Section 142 of the Act, such period is non-extendable. The summary remedy created for the benefit of a drawee of a dishonoured cheque will thus be rendered completely cumbersome and capable of getting frustrated. 16. In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act.
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### Explanation:
10. Since the High Court has read into Section 138 of the Act the requirement that separate notices ought to be given to the directors, without which they cannot be made vicariously liable, the principles concerning interpretative function of the Court may be advertedproviso inter alia obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing todrawer of thethe drawerfails to make the payment of the said amount within 15 days of the receipt of said notice, the stages stipulated in the proviso stand fulfilled. The notice under Section 138 is required to be given toof the cheque so as to givean opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other thane persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to theCompany is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138.In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act.
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HARNEK SINGH & ORS Vs. GURMIT SINGH & ORS | as is apparent from the following points: - (a) There was a large bowel perforation after the laparoscopic operation. This complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (b) More important Dr. Gurmit has failed to suspect the occurrence of complications despite following warning, signs/symptoms- i) the patient not recovering after the operation. ii) the patient increasingly deteriorating. iii) there was a strong indication of a complication occurring after the procedure. Thereafter, his failure to detect all these conditions led to delay in diagnosis all perforation of the bowel and has to lead a situation of avoidable delay which causes increased deterioration of the patient. 34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him. 35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under: 1. Existence of Generalized peritonitis as a result of bowel perforation. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 2. There was a significant delay in its diagnosis and operative intervention, first at the local hospital and subsequently at DMC, Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 3. This has led to the unfavourable outcome. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 4. Shifting of the patient by Respondent 1 was done in a distant hospital where better GI and ventilatory facilities are claimed. However, the availability of these facilities in the local city is a matter of survey, which should be sought for. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 5. Minor bile leak during surgery is accepted by Dr. Gurmit Singh. This kept on increasing in the post-operative period. Bowel perforation and bile duct injuries were noted in surgery done by Dr. Atul Mishra at Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 6. Dr. Gurmit Singh has failed to exercise adequate medical competence in treating the patient as is apparent from the facts. (Experts Common Opinion) 7. There was a large bowel perforation after the laparoscopic operation. (Experts Common Opinion) 8. The complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (Experts Common Opinion) 9. Dr. Gurmit Singh failed to suspect the occurrence of the complication despite warning signs/symptoms. (Experts Common Opinion) 10. Dr. Gurmit Singh ignored the following factors namely, (a) the patient was not recovering after the operation, (b) the patients condition was increasingly deteriorating, and (c) there was a strong indication of a complication occurring after the procedure. (Experts Common Opinion) 11. Failure of Dr. Gurmit Singh to detect the warning signs/symptom led to a delay in diagnosis of bowel perforation and this has, in turn, led to a situation of avoidable delay which eventually cause increased deterioration of the patient. (Experts Common Opinion). 36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record. 37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency. In the oral evidence, the following answers were elicited from Respondent 1 in the cross-examination which fortify the report given by the MCI. Q) Did you consider during your investigation that there was possible intra-operative injury to bile duct or intestines? A) No it did not occur to my mind. In-fact there was no such injury while the patient was in my hospital. Q) Did you think it necessary to take opinion/consultation of another Surgeon? A) I did not think it necessary in the circumstances of this case to consult another surgeon. Q) Why did you consider it proper to refer the patient to another Surgeon instead of a Chest Specialist as according to your opinion, the patient was not having any surgical problem but was having chest problem. A) The patient was referred to a Surgeon because we wanted to know that why the abdomen pain has developed as also why there was excessive discharge from the drain. 38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service. 39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2. | 1[ds]The SCDRC in its detailed decision considered the oral and documentary evidence including medical journals and concluded that Respondents 1 and 2 acted negligently in performing the operation. SCDRC also held that there is no evidence of negligence in so far as Respondents 3 and 4 are concerned.28. What we have noticed in the impugned decision of the NCDRC is that a substantive part of the decision refers only to judicial precedents on the question of medical negligence. Reference is made to the decisions in the case of Kusum Sharma & Others v. Batra Hospital & Medical Research Centre and others (Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480) ; Jacob Mathew v. State of Punjab (Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1) ; Achutrao Haribhau Khodwa and others v. State of Maharashtra and others (Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2 SCC 634) ; and S.K. Jhunjhunwala v. Dhanwanti Kaur (S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282) . Apart from the case laws on facts, the NCDRC devoted its attention substantially to the allegations against Respondent 3 who was anyway exonerated by the SCDRC. In so far as Respondent 1 is concerned, the NCDRC did not meet the specific allegations of negligence in the performance of the surgery.29. There was sufficient material indicative of large bowel perforation after the laparoscopic operation. It is true that it may not have manifested immediately in the normal course. However, there were sufficient indicators to a diligent professional, to detect and take immediate steps for restitution. Instead of examining the material that was placed on record, NCDRC seemed satisfied with raising and rejecting the plea of res ipsa loquitur and holding that it is impermissible to assume that any sensible professional would intentionally commit an act which would result in an injury to the patient. In these proceedings for damages due to professional negligence, the question of intention does not arise. Unfortunately, the NCDRC did not even refer to the report of the MCI. In fact, a reference to the MCI report would have been sufficient to come to the right conclusion.34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him.35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance.36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record.37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency.38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service.39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2. | 1 | 5,053 | 764 | ### Instruction:
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as is apparent from the following points: - (a) There was a large bowel perforation after the laparoscopic operation. This complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (b) More important Dr. Gurmit has failed to suspect the occurrence of complications despite following warning, signs/symptoms- i) the patient not recovering after the operation. ii) the patient increasingly deteriorating. iii) there was a strong indication of a complication occurring after the procedure. Thereafter, his failure to detect all these conditions led to delay in diagnosis all perforation of the bowel and has to lead a situation of avoidable delay which causes increased deterioration of the patient. 34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him. 35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under: 1. Existence of Generalized peritonitis as a result of bowel perforation. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 2. There was a significant delay in its diagnosis and operative intervention, first at the local hospital and subsequently at DMC, Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 3. This has led to the unfavourable outcome. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 4. Shifting of the patient by Respondent 1 was done in a distant hospital where better GI and ventilatory facilities are claimed. However, the availability of these facilities in the local city is a matter of survey, which should be sought for. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 5. Minor bile leak during surgery is accepted by Dr. Gurmit Singh. This kept on increasing in the post-operative period. Bowel perforation and bile duct injuries were noted in surgery done by Dr. Atul Mishra at Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 6. Dr. Gurmit Singh has failed to exercise adequate medical competence in treating the patient as is apparent from the facts. (Experts Common Opinion) 7. There was a large bowel perforation after the laparoscopic operation. (Experts Common Opinion) 8. The complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (Experts Common Opinion) 9. Dr. Gurmit Singh failed to suspect the occurrence of the complication despite warning signs/symptoms. (Experts Common Opinion) 10. Dr. Gurmit Singh ignored the following factors namely, (a) the patient was not recovering after the operation, (b) the patients condition was increasingly deteriorating, and (c) there was a strong indication of a complication occurring after the procedure. (Experts Common Opinion) 11. Failure of Dr. Gurmit Singh to detect the warning signs/symptom led to a delay in diagnosis of bowel perforation and this has, in turn, led to a situation of avoidable delay which eventually cause increased deterioration of the patient. (Experts Common Opinion). 36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record. 37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency. In the oral evidence, the following answers were elicited from Respondent 1 in the cross-examination which fortify the report given by the MCI. Q) Did you consider during your investigation that there was possible intra-operative injury to bile duct or intestines? A) No it did not occur to my mind. In-fact there was no such injury while the patient was in my hospital. Q) Did you think it necessary to take opinion/consultation of another Surgeon? A) I did not think it necessary in the circumstances of this case to consult another surgeon. Q) Why did you consider it proper to refer the patient to another Surgeon instead of a Chest Specialist as according to your opinion, the patient was not having any surgical problem but was having chest problem. A) The patient was referred to a Surgeon because we wanted to know that why the abdomen pain has developed as also why there was excessive discharge from the drain. 38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service. 39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2.
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The SCDRC in its detailed decision considered the oral and documentary evidence including medical journals and concluded that Respondents 1 and 2 acted negligently in performing the operation. SCDRC also held that there is no evidence of negligence in so far as Respondents 3 and 4 are concerned.28. What we have noticed in the impugned decision of the NCDRC is that a substantive part of the decision refers only to judicial precedents on the question of medical negligence. Reference is made to the decisions in the case of Kusum Sharma & Others v. Batra Hospital & Medical Research Centre and others (Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480) ; Jacob Mathew v. State of Punjab (Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1) ; Achutrao Haribhau Khodwa and others v. State of Maharashtra and others (Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2 SCC 634) ; and S.K. Jhunjhunwala v. Dhanwanti Kaur (S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282) . Apart from the case laws on facts, the NCDRC devoted its attention substantially to the allegations against Respondent 3 who was anyway exonerated by the SCDRC. In so far as Respondent 1 is concerned, the NCDRC did not meet the specific allegations of negligence in the performance of the surgery.29. There was sufficient material indicative of large bowel perforation after the laparoscopic operation. It is true that it may not have manifested immediately in the normal course. However, there were sufficient indicators to a diligent professional, to detect and take immediate steps for restitution. Instead of examining the material that was placed on record, NCDRC seemed satisfied with raising and rejecting the plea of res ipsa loquitur and holding that it is impermissible to assume that any sensible professional would intentionally commit an act which would result in an injury to the patient. In these proceedings for damages due to professional negligence, the question of intention does not arise. Unfortunately, the NCDRC did not even refer to the report of the MCI. In fact, a reference to the MCI report would have been sufficient to come to the right conclusion.34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him.35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance.36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record.37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency.38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service.39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2.
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Allahabad Bank Vs. Canara Bank & Another | the Company Court, if he loses part of his security towards workmens dues, he gets reimbursed to that extent as a secured creditor, with an overriding priority under Section 529-A(1)(b). He gets priority over all other creditors before the Tribunal, to be compensated for this loss out of the monies that may have been realised at the instance of other creditors before the Tribunal. It is pointed out that Canara Bank has neither realised any amount outside winding up nor has it lost any part of its security towards workmens dues. In our view, this contention of the learned Attorney General is well founded and is entitled to be accepted. 62. In our opinion, the words "so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso" obviously mean the amount taken away from the private realisation of the secured creditor by the liquidator by way of enforcing the charge for workmens dues under clause (c) of the proviso to Section 529(1) "rateably" against each secured creditor. To that extent, the secured creditor - who has stood outside the winding up and who has lost a part of the monies otherwise covered by security - can come before the Tribunal to reimburse himself from out of other monies available in the Tribunal, claiming priority over al creditors, by virtue of Section 529(1)(b).63. This can be exemplified by three more examples. (1) Let us assume that the total amount due to a secured creditor is Rs. 90,000 and he has a security valued at Rs. 1 lakh. This security is sufficient to cover his entire dues. Let us assume that the total amount due to all secured creditors is Rs. 3 lakhs and workmens dues are Rs. 1 lakh, as in the illustration given under Section 529-A(3). This creditor can be made to part prorata upto with Rs. 25,000 out of his security of one lakh towards the workmens dues. This is the "workmens portion". That still leaves with him Rs. 75,000 of his security but that is not sufficient to meet his total dues of Rs. 90,000. Still Rs. 15,000 of his dues have to be cleared. By virtue of Section 529-A(1)(b), he can claim this sum of Rs. 15000 from monies realised by other creditors in the Tribunal on the basis of Section 529-A(1)(b) claiming overriding priority as against all other creditors. This is because the above amount is less than the `workmens dues of Rs. 25,000 taken away from the realisation out of his security, as prescribed in clause (c) of the proviso to Section 529(1). That is what is meant by the words "whichever is less".(ii) Take a case where the total dues of a secured creditor are only Rs. 65,000 and his security is Rs. 1 lakh in value. The other facts being the same as in the illustration to Section 529(3), the secured creditor loses his security rateably in a sum of Rs. 25,000. The balance of the available security is Rs. 75,000 and that is sufficient to meet his entire debt of Rs. 65,000. He has no occasion to claim any extra amount as a secured creditor under Section 529-A(1)(b). This situation presents no difficulty.(iii) Take yet another case where the secured creditor has a security valued at Rs. 1 lakh, but his total dues are Rs. 1.10 lakhs. In other words, Rs. 10,000 are not secured. Other facts are as in illustration to Section 529(3). He is made to part with Rs. 25,000 towards workmens dues rateably. He has Rs. 75,000 available from his security but he has to meet Rs. 1,10,000 and that leaves a balance of Rs. 35,000 (Rs. 1,10,000 - Rs. 75,000) to be recovered. He can claim overriding priority only upto Rs. 25,000 as a secured creditor, under clause (c) to proviso to Section 529(1). The priority is restricted to Rs. 35,000 only because as between Rs. 25,000 and Rs. 35,000, the amount of Rs. 25,000 answers the description whichever is less. It will be noticed that, after claiming Rs. 25,000 as a secured creditor out of the realisation of other creditors before the Tribunal, he has still dues upto Rs. 10,000 which remain unsecured. That was also the unsecured amount to start with initially.64. The above examples show that the secured creditor who stands outside the winding up and whose claims are restricted to Section 529-A read with the clause (c) of proviso to Section 529(1), does not in the ultimate analysis stand to lose any part of his security merely because the "workmens portion" is taken away from his security. Whatever he loses towards "workmens portion" out of his security, can be claimed by him as a secured amount with priority over such creditors out of other realisations made by other creditors whose monies are lying in the Tribunal. At the same time, his position would not improve from what it was originally and his priority would not extend to his entire unrealised sums which might be in excess of his security.65. But the point here is that the occasion for such a claim by a secured creditor (here the Canara Bank) against realisations by other creditors (like the Allahabad Bank) under Section 529-A read with proviso (c) to Section 529(1) can arise before the Tribunal only if the Canara Bank has stood outside winding up and realised amounts and if it shows that out of the amounts privately realised by it, some portion has been rateably taken away by the liquidator under sub-clauses (a) and (b) of the proviso to Section 529(1). It is only then that it can claim that it is to be re-imbursed at the same level as a secured creditor with priority over the realisations of other creditors lying in the Tribunal. None of these conditions is satisfied by Canara Bank. Thus, Canara Bank does not belong to the class of secured creditors covered by Section 529-A(1)(b). | 1[ds]20. It is clear from Section 17 of the Act that the Tribunal is to decide the applications of the Banks and Financial Institutionsfor recovery ofdebts due to them. We have already referred to the definition of `debt in Section 2(g) as amended by Ordinance 12000. It includes "claims" by Banks and financial institutions and includes the liability incurred and also liability under a decree or otherwise. In this context Section 31 of the Act is also relevant. That Section deals with transfer of pending suits or proceedings to the Tribunal. In our view, the word `proceedings in Section 31 includes an `execution proceedings pending before a Civil Court before the commencement of the Act. The suits and proceedings so pending on the date of the Act stand transferred to the Tribunal and have to be disposed of "in the same manner" as applications under Section 19.In our opinion, the jurisdiction of the Tribunal in regard to adjudication is exclusive. The RDB Act requires the Tribunal alone to decide applicationsfor recovery ofdebts due to Banks or financial institutions. Once the Tribunal passes an order that the debt is due, the Tribunal has to issue a certificate under Section 19(22) (formerly under Section 19(7)) to the Recovery officerfor recovery ofthe debt specified in the certificate. The question arises as to the meaning of the word `recovery in Section 17 of the Act. It appears to us that basically the Tribunal is to adjudicate the liability of the defendant and then it has to issue a certificate under Section 19(22). Under Section 18, the jurisdiction of any other Court or authority which would otherwise have had jurisdiction but for the provisions of the Act, is ousted and the power to adjudicate upon the liability is exclusively vested in the Tribunal. (This exclusion does not however apply to the jurisdiction of the Supreme Court or of a High Court exercising power under Articles 226 or 227 of the Constitution). This is the effect of Sections 17 and 18 of the Act.We hold that the provisions of Sections 17 and 18 of the RDB Act are exclusive so far as the question of adjudication of the liability of the defendant to the appellant Bank is concerned.Even in regard to `execution, the jurisdiction of the Recovery Officer is exclusive. Now a procedure has been laid down in the Actfor recovery ofthe debt as per the certificate issued by the Tribunal and this procedure is contained in Chapter V of the Act and is covered by Sections 25 to 30. It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the BanksFinancial institutions should go to the Civil Court or the Company Court or some other authority outside the Act for the actual realisation of the amount. The certificate granted under Section 19(22) has, in our opinion, to be executed only by the Recovery Officer. No dual jurisdiction at differentd. Further, Section 34 of the Act gives overriding effect to the provisions of the RDBThere is one more reason as to why it must be held that the jurisdiction of the Recovery Officer is exclusive. The Tiwari Committee which recommended the constitution of a Special Tribunal in 1981for recovery ofdebts due to Banks and financial institutions state in its Report that the exclusive jurisdiction of the Tribunal must relate not only in regard to the adjudication of the liability but also in regard to the execution proceedings. It stated in Annexure XI of its Report that all "execution proceedings" must be taken up only by the Special Tribunal under the Act. In our opinion, in view of the special procedure for recovery prescribed in Chapter V of the Act, and Section 34, execution of the certificate is also within the exclusive jurisdiction of the Recovery Officer.23. Thus, the adjudication of liability and the recovery of the amount by execution of the certificate are respectively within the exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the Company Court can go into the said questions relating to the liability and the recovery except as provided in the Act. Point 1 is decidedare of the view that the appellants case under the RDB Actwith an additional section like section 34is on a stronger footing for holding that leave of the Company Court is not necessary under Section 527 or under Section 446 for the same reasons. If the jurisdiction of the Tribunal is exclusive, the Company Court cannot also use its powers under Section 442 against the TribunalRecovery Officer. Thus, Sections 442, 446 and 537 cannot be applied against the Tribunal.Tribunal.31. While it is true that the principle of purposive interpretation has been applied by the Supreme Court in favour of jurisdiction and powers of the Company Court in Sudarshan Chits (P) Ltd. case, and other cases the said principle, in our view, cannot be invoked in the present case against the Debt Recovery Tribunal in view of the superior purpose of the RDB Act and the special provisions contained therein. In our opinion, the very same principle mentioned above equally applies to the TribunalRecovery Officer under the RDB Act, 1993 because the purpose of the said Act is something more important than the purpose of Sections 442, 446 and 537 of the Companies Act. It was intended that there should be a speedy and summary remedyfor recovery ofthousands of crores which were due to the Banks and to financial institutions, so that the delays occurring in winding up proceedings could becounsel for respondent relied upon para 24 of the judgment which stated that Section 171 (corresponding to Section 446(1)) was supplementary to Section 232 and 229 (corresponding to Section 529 of the new Act). But the said observations, in our view, cannot help the respondents, in view of the reasons given above.40. When the matter was listed for fresh arguments, learnedcounsel for the respondentrelied upon Ram Narain v. The Simla Banking and Industrial Co. Ltd., AIR 1956 SC 614 to contend that in that case the Court (the High Court of Punjab) which was winding up the Banking Company was held entitled to transfer the execution case pending before a Tribunal to the High Court and to dispose of the same. That case is, in our view, distinguishable. The facts there were that the Tribunal was one constituted under the Displaced Persons (Debt Adjustment) Act, 1951, while the High Court of Punjab was exercising special powers under Sectionsof the Banking Companies Act, 1949 (as amended in 1953) for winding up a Banking Company). Earlier, under the 1913 Act, the District Court was dealing with winding up proceedings but so far as Banking Companies were concerned, the Banking Companies Act, 1949 was amended in 1953 giving powers to the High Court to wind up Banking Companies. It was held that the latter Act of 1953 prevailed over the former Act of 1951 in view of Sectionand that the legislative intention was to prescribe a speedy procedure for the winding up of the Banking Companies outside the provisions of the Companies Act, 1913. Sectionconferred exclusive jurisdiction on the High Court (there the Punjab High Court) in this behalf. The more important distinguishing feature between that case and the present one is that Section 2 of the Banking Companies Act, 1949 specifically provided that its provisions would be in addition to those in the Companies Act and it was held that Sections 171 and 232 of the Companies Act, 1913 were available to the High Court as a winding up Court to stay the execution proceedings taken pursuant to the decree of the Tribunal under the 1951 Act and to transfer them to the High Court. But the position under the RDB Act is different. Sections 442, 446 and 537 are not saved by the RDB Act. Even Section 34(2) of the RDB Act does not save the provisions of the Companies Act.In our view, the decision of the Kerala High Court in ICICI case (supra) relied upon for the appellant, is correctly decided. It was pointed out in that case that the records leading to the decision in Srinivas Agencies and batch, 1996(4) SCC 165 show that suits filed by Banks and financial institutions were pending in civil Courts and a winding up petition was filed later on in the High Court. The Kerala High Court held that the suits would stand transferred to the Debt Recovery Tribunal under Section 31 of the RDB Act automatically and that section 446 of the Companies Act, 1956 could not be invoked in view of Section 34 of the RDB Act. The RDB Act was a special law overriding another special law, the Companies Act. Leave of the Company Court under Section 446(1) was not necessary nor could the suit be transferred to the Company Court under Section 446(2).45. Similarly, we are of the view that the Patna High Courts decision in Bihar Sales Pvt. Ltd. In re Vol. 96 Comp. Cases 40 is also correctly decided. There the decision of this Court in Srinivas Agencies was not accepted as laying down anything specific about the RDB Act and as to its interpretation. The decision of the Kerala High Court in Vanjinad Leathers Ltd. was followed.The decision of the Rajasthan High Court in Rajasthan Finance Corporation v. Official Liquidator, 1963(2) Comp.LJ 309 relied upon for the respondent cannot be of any help. That was a case which concerned itself with the State Finance Corporation Act, 1951. Section 537 of the Companies Act was applied and it was held that the Companies Act did not yield to the provisions of the State Finance Corporation Act, 1951. There was no provision in the State Finance Corporation Act, 1951 like Section 34 which gave overriding effect to its provisions.46. For the aforesaid reasons, we hold that at the stage of adjudication under section 17 and execution of the certificates under section 25 etc. the provisions of the RDB Act, 1993 confer exclusive jurisdiction in the Tribunal and the Recovery Officer in respect of debts payable to Banks and financial institutions and there can be no interference by the Company Court under Section 442 read within Section 537 or under Section 446 of the Companies Act, 1956. In respect of the monies realised under the RDB Act, the question of priorities among the Banks and financial institutions and other creditors can be decided only by the Tribunal under the RDB Act and in accordance with Section 19(19) read with Sectionof the Companies Act and in no other manner. The provisions of the RDB Act, 1993 are to the above extent inconsistent with the provisions of the Companies Act, 1956 and the latter Act has to yield to the provisions of the former. This position holds good during the pendency of the winding up petition against theand also after a winding up order is passed. No leave of the Company Court is necessary for initiating or continuing the proceedings under the RDB Act, 1993. Points 2 and 3 are decided accordingly in favour of the appellant and against themay point out that Section 19(2) permits such impleadment "at any stage of the proceedings before a final order is passed". The final order here is the order of adjudication under Section 19(1) as to whether the debt is due or not. In the present case, the adjudication order in respect of the debt has already been made long back and therefore Section 19(2) does not permit any impleadment in the main application under Section 19(1) at this stage. Hence, this relief for impeadment cannot be granted.49. We shall now go into effect of Section 19(19) of the Ordinance 12000.(a) Case where defendant company is not ordered to be wound up :Where the defendant company is a company against which no winding up order is passed, the Company, in our view, is like any other defendant and if in such a situation a question of priority arises before the Tribunal, in respect of any monies realised under the RDB Act, as between the Bank or financial institutions on the one hand and the other creditors on the other, it will, in our opinion, be necessary for the Tribunal to decide such questions of priority bearing in mind principles underlying Section 73 of the Code of Civil Procedure. Section 22 of the RDB Act, in our view, gives sufficiently wide powers to the Tribunal and the Appellate Tribunal to decide such questions of priorities, subject only to the principles of natural justice. This Court has explained that the powers under Section 22 are wider than those of Civil Courts and the only restriction on its powers is that principles of natural justice have to be followed. See Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and others, 1999(4) SCC 710 and Allahabad Bank, Calcutta v. Radha Krishna Maity and others, 1999(6) SCC 755.50. But under Section 73 CPC, sharing in the sale proceeds (here, sale proceeds realised under the RDB Act) is permissible only if a person seeking such share has obtained a decree or an order of adjudication from the Tribunal and has also complied with other conditions laid down under Section 73. In the present case, the Canara Bank is not in a position to invoke the principles underlying Section 73 CPC because it has not yet obtained any decree or adjudication of its debt from the Tribunal. Nor has it complied with other provisions underlying Section 73 CPC. Hence no relief can be granted on the basis of the said principles.(b) Position of secured creditors standing outside winding up and also not so standing out :The discussion here in confined to sharing the realisations made by the Recovery Officer under the RDB Act where winding up proceedings are pending in the Company Court against the defendant company.The respondents contention that Section 19(19) gives priority to all "secured creditors" to share in the sale proceeds before the TribunalRecovery Officer cannot, in our opinion, be accepted. The said words are qualified by the words "in accordance with the provision of SectionIn our opinion, the words "so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso" obviously mean the amount taken away from the private realisation of the secured creditor by the liquidator by way of enforcing the charge for workmens dues under clause (c) of the proviso to Section 529(1) "rateably" against each secured creditor. To that extent, the secured creditorwho has stood outside the winding up and who has lost a part of the monies otherwise covered by securitycan come before the Tribunal to reimburse himself from out of other monies available in the Tribunal, claiming priority over al creditors, by virtue of Section 529(1)(b).63. This can be exemplified by three more examples. (1) Let us assume that the total amount due to a secured creditor is Rs. 90,000 and he has a security valued at Rs. 1 lakh. This security is sufficient to cover his entire dues. Let us assume that the total amount due to all secured creditors is Rs. 3 lakhs and workmensRs. 1 lakh, as in the illustration given under SectionThis creditor can be made to part prorata upto with Rs. 25,000 out of his security of one lakh towards the workmens dues. This is the "workmens portion". That still leaves with him Rs. 75,000 of his security but that is not sufficient to meet his total dues of Rs. 90,000. Still Rs. 15,000 of his dues have to be cleared. By virtue of Sectionhe can claim this sum of Rs. 15000 from monies realised by other creditors in the Tribunal on the basis of Sectionclaiming overriding priority as against all other creditors. This is because the above amount is less than the `workmens dues of Rs. 25,000 taken away from the realisation out of his security, as prescribed in clause (c) of the proviso to Section 529(1). That is what is meant by the words "whichever is less".(ii) Take a case where the total dues of a secured creditor are only Rs. 65,000 and his security is Rs. 1 lakh in value. The other facts being the same as in the illustration to Section 529(3), the secured creditor loses his security rateably in a sum of Rs. 25,000. The balance of the available security is Rs. 75,000 and that is sufficient to meet his entire debt of Rs. 65,000. He has no occasion to claim any extra amount as a secured creditor under SectionThis situation presents no difficulty.(iii) Take yet another case where the secured creditor has a security valued at Rs. 1 lakh, but his totalRs. 1.10 lakhs. In other words, Rs. 10,000 are not secured. Other facts are as in illustration to Section 529(3). He is made to part with Rs. 25,000 towards workmens dues rateably. He has Rs. 75,000 available from his security but he has to meet Rs. 1,10,000 and that leaves a balance of Rs. 35,000 (Rs. 1,10,000Rs. 75,000) to be recovered. He can claim overriding priority only upto Rs. 25,000 as a secured creditor, under clause (c) to proviso to Section 529(1). The priority is restricted to Rs. 35,000 only because as between Rs. 25,000 and Rs. 35,000, the amount of Rs. 25,000 answers the description whichever is less. It will be noticed that, after claiming Rs. 25,000 as a secured creditor out of the realisation of other creditors before the Tribunal, he has still dues upto Rs. 10,000 which remain unsecured. That was also the unsecured amount to start with initially.64. The above examples show that the secured creditor who stands outside the winding up and whose claims are restricted to Sectionread with the clause (c) of proviso to Section 529(1), does not in the ultimate analysis stand to lose any part of his security merely because the "workmens portion" is taken away from his security. Whatever he loses towards "workmens portion" out of his security, can be claimed by him as a secured amount with priority over such creditors out of other realisations made by other creditors whoseare lying in theTribunal. At the same time, his position would not improve from what it was originally and his priority would not extend to his entire unrealised sums which might be in excess of his security.65. But the point here is that thesuch a claim by a secured creditor (here the Canara Bank) against realisations by other creditors (like the Allahabad Bank) under Sectionread with proviso (c) to Section 529(1) can arise before the Tribunal only if the Canara Bank has stood outside winding up and realised amounts and if it shows that out of the amounts privately realised by it, some portion has been rateably taken away by the liquidator under(a) and (b) of the proviso to Section 529(1). It is only then that it can claim that it is to beat the same level as a secured creditor with priority over the realisations of other creditors lying in the Tribunal. None of these conditions is satisfied by Canara Bank. Thus, Canara Bank does not belong to the class of secured creditors covered by Section | 1 | 15,111 | 3,654 | ### Instruction:
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the Company Court, if he loses part of his security towards workmens dues, he gets reimbursed to that extent as a secured creditor, with an overriding priority under Section 529-A(1)(b). He gets priority over all other creditors before the Tribunal, to be compensated for this loss out of the monies that may have been realised at the instance of other creditors before the Tribunal. It is pointed out that Canara Bank has neither realised any amount outside winding up nor has it lost any part of its security towards workmens dues. In our view, this contention of the learned Attorney General is well founded and is entitled to be accepted. 62. In our opinion, the words "so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso" obviously mean the amount taken away from the private realisation of the secured creditor by the liquidator by way of enforcing the charge for workmens dues under clause (c) of the proviso to Section 529(1) "rateably" against each secured creditor. To that extent, the secured creditor - who has stood outside the winding up and who has lost a part of the monies otherwise covered by security - can come before the Tribunal to reimburse himself from out of other monies available in the Tribunal, claiming priority over al creditors, by virtue of Section 529(1)(b).63. This can be exemplified by three more examples. (1) Let us assume that the total amount due to a secured creditor is Rs. 90,000 and he has a security valued at Rs. 1 lakh. This security is sufficient to cover his entire dues. Let us assume that the total amount due to all secured creditors is Rs. 3 lakhs and workmens dues are Rs. 1 lakh, as in the illustration given under Section 529-A(3). This creditor can be made to part prorata upto with Rs. 25,000 out of his security of one lakh towards the workmens dues. This is the "workmens portion". That still leaves with him Rs. 75,000 of his security but that is not sufficient to meet his total dues of Rs. 90,000. Still Rs. 15,000 of his dues have to be cleared. By virtue of Section 529-A(1)(b), he can claim this sum of Rs. 15000 from monies realised by other creditors in the Tribunal on the basis of Section 529-A(1)(b) claiming overriding priority as against all other creditors. This is because the above amount is less than the `workmens dues of Rs. 25,000 taken away from the realisation out of his security, as prescribed in clause (c) of the proviso to Section 529(1). That is what is meant by the words "whichever is less".(ii) Take a case where the total dues of a secured creditor are only Rs. 65,000 and his security is Rs. 1 lakh in value. The other facts being the same as in the illustration to Section 529(3), the secured creditor loses his security rateably in a sum of Rs. 25,000. The balance of the available security is Rs. 75,000 and that is sufficient to meet his entire debt of Rs. 65,000. He has no occasion to claim any extra amount as a secured creditor under Section 529-A(1)(b). This situation presents no difficulty.(iii) Take yet another case where the secured creditor has a security valued at Rs. 1 lakh, but his total dues are Rs. 1.10 lakhs. In other words, Rs. 10,000 are not secured. Other facts are as in illustration to Section 529(3). He is made to part with Rs. 25,000 towards workmens dues rateably. He has Rs. 75,000 available from his security but he has to meet Rs. 1,10,000 and that leaves a balance of Rs. 35,000 (Rs. 1,10,000 - Rs. 75,000) to be recovered. He can claim overriding priority only upto Rs. 25,000 as a secured creditor, under clause (c) to proviso to Section 529(1). The priority is restricted to Rs. 35,000 only because as between Rs. 25,000 and Rs. 35,000, the amount of Rs. 25,000 answers the description whichever is less. It will be noticed that, after claiming Rs. 25,000 as a secured creditor out of the realisation of other creditors before the Tribunal, he has still dues upto Rs. 10,000 which remain unsecured. That was also the unsecured amount to start with initially.64. The above examples show that the secured creditor who stands outside the winding up and whose claims are restricted to Section 529-A read with the clause (c) of proviso to Section 529(1), does not in the ultimate analysis stand to lose any part of his security merely because the "workmens portion" is taken away from his security. Whatever he loses towards "workmens portion" out of his security, can be claimed by him as a secured amount with priority over such creditors out of other realisations made by other creditors whose monies are lying in the Tribunal. At the same time, his position would not improve from what it was originally and his priority would not extend to his entire unrealised sums which might be in excess of his security.65. But the point here is that the occasion for such a claim by a secured creditor (here the Canara Bank) against realisations by other creditors (like the Allahabad Bank) under Section 529-A read with proviso (c) to Section 529(1) can arise before the Tribunal only if the Canara Bank has stood outside winding up and realised amounts and if it shows that out of the amounts privately realised by it, some portion has been rateably taken away by the liquidator under sub-clauses (a) and (b) of the proviso to Section 529(1). It is only then that it can claim that it is to be re-imbursed at the same level as a secured creditor with priority over the realisations of other creditors lying in the Tribunal. None of these conditions is satisfied by Canara Bank. Thus, Canara Bank does not belong to the class of secured creditors covered by Section 529-A(1)(b).
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the present case, the Canara Bank is not in a position to invoke the principles underlying Section 73 CPC because it has not yet obtained any decree or adjudication of its debt from the Tribunal. Nor has it complied with other provisions underlying Section 73 CPC. Hence no relief can be granted on the basis of the said principles.(b) Position of secured creditors standing outside winding up and also not so standing out :The discussion here in confined to sharing the realisations made by the Recovery Officer under the RDB Act where winding up proceedings are pending in the Company Court against the defendant company.The respondents contention that Section 19(19) gives priority to all "secured creditors" to share in the sale proceeds before the TribunalRecovery Officer cannot, in our opinion, be accepted. The said words are qualified by the words "in accordance with the provision of SectionIn our opinion, the words "so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso" obviously mean the amount taken away from the private realisation of the secured creditor by the liquidator by way of enforcing the charge for workmens dues under clause (c) of the proviso to Section 529(1) "rateably" against each secured creditor. To that extent, the secured creditorwho has stood outside the winding up and who has lost a part of the monies otherwise covered by securitycan come before the Tribunal to reimburse himself from out of other monies available in the Tribunal, claiming priority over al creditors, by virtue of Section 529(1)(b).63. This can be exemplified by three more examples. (1) Let us assume that the total amount due to a secured creditor is Rs. 90,000 and he has a security valued at Rs. 1 lakh. This security is sufficient to cover his entire dues. Let us assume that the total amount due to all secured creditors is Rs. 3 lakhs and workmensRs. 1 lakh, as in the illustration given under SectionThis creditor can be made to part prorata upto with Rs. 25,000 out of his security of one lakh towards the workmens dues. This is the "workmens portion". That still leaves with him Rs. 75,000 of his security but that is not sufficient to meet his total dues of Rs. 90,000. Still Rs. 15,000 of his dues have to be cleared. By virtue of Sectionhe can claim this sum of Rs. 15000 from monies realised by other creditors in the Tribunal on the basis of Sectionclaiming overriding priority as against all other creditors. This is because the above amount is less than the `workmens dues of Rs. 25,000 taken away from the realisation out of his security, as prescribed in clause (c) of the proviso to Section 529(1). That is what is meant by the words "whichever is less".(ii) Take a case where the total dues of a secured creditor are only Rs. 65,000 and his security is Rs. 1 lakh in value. The other facts being the same as in the illustration to Section 529(3), the secured creditor loses his security rateably in a sum of Rs. 25,000. The balance of the available security is Rs. 75,000 and that is sufficient to meet his entire debt of Rs. 65,000. He has no occasion to claim any extra amount as a secured creditor under SectionThis situation presents no difficulty.(iii) Take yet another case where the secured creditor has a security valued at Rs. 1 lakh, but his totalRs. 1.10 lakhs. In other words, Rs. 10,000 are not secured. Other facts are as in illustration to Section 529(3). He is made to part with Rs. 25,000 towards workmens dues rateably. He has Rs. 75,000 available from his security but he has to meet Rs. 1,10,000 and that leaves a balance of Rs. 35,000 (Rs. 1,10,000Rs. 75,000) to be recovered. He can claim overriding priority only upto Rs. 25,000 as a secured creditor, under clause (c) to proviso to Section 529(1). The priority is restricted to Rs. 35,000 only because as between Rs. 25,000 and Rs. 35,000, the amount of Rs. 25,000 answers the description whichever is less. It will be noticed that, after claiming Rs. 25,000 as a secured creditor out of the realisation of other creditors before the Tribunal, he has still dues upto Rs. 10,000 which remain unsecured. That was also the unsecured amount to start with initially.64. The above examples show that the secured creditor who stands outside the winding up and whose claims are restricted to Sectionread with the clause (c) of proviso to Section 529(1), does not in the ultimate analysis stand to lose any part of his security merely because the "workmens portion" is taken away from his security. Whatever he loses towards "workmens portion" out of his security, can be claimed by him as a secured amount with priority over such creditors out of other realisations made by other creditors whoseare lying in theTribunal. At the same time, his position would not improve from what it was originally and his priority would not extend to his entire unrealised sums which might be in excess of his security.65. But the point here is that thesuch a claim by a secured creditor (here the Canara Bank) against realisations by other creditors (like the Allahabad Bank) under Sectionread with proviso (c) to Section 529(1) can arise before the Tribunal only if the Canara Bank has stood outside winding up and realised amounts and if it shows that out of the amounts privately realised by it, some portion has been rateably taken away by the liquidator under(a) and (b) of the proviso to Section 529(1). It is only then that it can claim that it is to beat the same level as a secured creditor with priority over the realisations of other creditors lying in the Tribunal. None of these conditions is satisfied by Canara Bank. Thus, Canara Bank does not belong to the class of secured creditors covered by Section
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Rajah Velugoti Kumara Krishna Yachendra Varu & Others Vs. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu & Others | and were satisfied that the Estates included in the schedule to Act 2 of 1904 were impartible and the inclusion of the Estates therein is a legislative determination that they were impartible. In Pushavathi Vijayaram Gajapathi Raj v. Pushavathi Visweswar Gajapathi Raj, (1964) 2 SCR 403 = (AIR 1964 SC 118 ), this Court observed: Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the limitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II.1902, II/1903 and II/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and conditions on which the said estates were held. 12. In these circumstances we see no reason to differ from the finding of the High Court that the Estate of Venkatagiri was an ancient impartible Estate by custom and was not made impartible for the first time under the agreement of 1889 or by the Madras Acts of 1902 and 1904. 13. The next question for determination is what is the effect of the Abolition Act on the rights and obligations of the members of the family in relation to the Venkatagiri Zamindari. According to the plaintiffs the property described in the B Schedule appended to the plaint did not vest under Section 3 (b) of the Abolition Act. The properties in the B Schedule include a building at Mount Road Madras a bungalow at Kalahasti and the District Judges bungalow at Nellore Town. These buildings are situated outside the territorial limits of the Venkatagiri Estate. Section 3 (a) and (b) of the Abolition Act states: x x x x x x 3 With effect on and from the notified date and save as otherwise expressly provided in this Act- (a) the Madras Estates Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947) in so far as it relates to matters other than the reduction of rents and the collection of arrears of rent and the Madras Permanent Settlement Regulation, 1802 (Madras Regulation XXV of 1802), the Madras Estates Land Act, 1908 (Madras Act I of 1908), and all other enactments applicable to the estate as such shall be deemed to have been repealed in their application to the estate. (b) the entire estate (including all communal lands; porambokes: other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1864, and all other enactments applicable to ryotwari areas shall apply to the estate; x x x x x x Section 1 (3), states: x x x x x x (3) It applies to all estates as defined in Section 3, clause (2) of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936. Section 2 (3) defines estate to mean . . . x x x x x x (3) estate means a zamindari or an undertenure or an inam estate; x x x x x x Section 2 (16) defines Zamindari as follows: x x x x x x (16) zamindari estate means- (i) an estate within the meaning of Section 3, clause (2) (a) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (b) or (2) (e) of that Act; or (ii) an estate within the meaning of Section 3, clause (2) (b) or (2) (c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (e), of that Act. x x x x x x Section 3 (2) of Estates Land Act (Madras Act I of 1908) defined an estate to mean: (a) any permanently-settled estate or temporarily-settled zamindari; (b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; x x x x x x 14. Section 2 (2) of the Madras Impartible Estates Act, 1904 (Madras Act 2 of 1904) defines an `impartible estate as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. In relation to the Venkatagiri Zamindari the expression `Estate in Section 3 (a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then was subject to the operation of the Madras Permanent Settlement Regulation and the Madras Estates Land Act. In relation to the Venkatagiri Zamindari Section 66 of the Abolition Act enacts that with effect from the notified date the Madras Impartible Estates Act, 1904 shall be deemed to have been repealed in its application to the Estate,. The question arises whether the word estate in Section 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government under the Abolition Act and properties which are not so transferred, or whether the expression `estate refers to only the Venkatagiri Estate which until the notification issued under the Abolition Act took effect was the subject of the Permanent Settlement Regulation and the Madras Estates Land Act.The High Court has given sufficient reasons in support of its view that the word estate in Section 66 of the Abolition Act denotes only the estate governed by the Permanent Settlement Regulation and the Estates Land Act and not any other part of the impartible zamindari. In other words the Abolition Act has no application to properties which are outside the territorial limits of the Venkatagiri Estate. | 1[ds]8. In our opinion the contention of the plaintiffs that Venkatagiri Estate was not impartible by custom is untenable9. The document of 1889 also negatives the case of the plaintiffs that the Estate was made impartible for the first time by that document. The language of the document clearly shows that it only recognised the then subsisting impartible character of the Estate. In other words the document proceeds on the assumption that the Zamindari was made impartible by custom from the very beginning10. Counsel for the plaintiffs has been unable to show any term in this agreement to support his contention that it was only by virtue of that document that the parties agreed to call the Estate impartible. On the contrary the document indicates that there was clear recognition by the executants of the then character of the Estate as an impartible zamindariWe have already given reasons for the view that the Zamindari was impartible independently of the agreement of 1889 and that the agreement was no more than a conscious affirmation by the parties of what the position was previously in fact and in law. To put it differently the agreement of 1889 merely acknowledged and defined antecedent rights and antecedent obligations. It is therefore difficult to accept the contention of the plaintiffs that the three items of property in Schedule B have become partible properties. Since the Abolition Act did not affect these items the properties have continued to be what they were at the time of incorporation with the zamindari, namely the properties retain their impartible character15. We are also not impressed with the argument that as there was incorporation of the buildings with the original impartible estate the buildings ceased to have any impartible character when the impartibility of the parent estate was gone.It is true that the buildings which are outside the geographical limits of the Venkatagiri Zamindari cannot be brought within the definition of the Estate as defined in the Estates Land Act and the Abolition Act cannot therefore be made applicable to such buildings. But `the buildings have acquire the character of impartibility as a result of incorporation with the parent estate and that character cannot be lost unless the statute intervernes. Section 4 of the Impartible Estates Act itself contemplates parts of an Estate being impartibleIt is not possible to accept this principle in the present case. For, many times custom outlives the condition of things which give it birth. As observed by Lord Atkinson in Rao Kishore Singh v. Mst. Gahenabai, AIR 1919 PC 100:Rao Kishore Singh v. Mst. Gahenabai, AIR 1919 PC 10017. We are also unable to accept the contention of the plaintiffs that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility. In other words, the contention was that junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed. In our opinion there is no justification for this argumentThe law regarding the nature and incidents of impartible estate is now well settled. Impartibility is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and, therefore, have no right of partition having regard to the very nature of the estate that it is impartial. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to Section 4 of the Madras Impartible Estates Act in the case of impartible estates governed by the Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the Judicial Committee in Commr. of I.-T., Punjab v. Krishna Kishore, 68 Ind App 155 = (AIR 1941 PC 120 ), App 155 = (AIR 1941 PC 120 ), 68 Ind App 181 = (AIR 1942 P C 3).The income of the impartible estate is the individual in- come of the holder of the estate and is not the income of the joint familyUnder the agreement of 1889, plaintiffs 1 to 4 are entitled to an allowance of Rs. 1,000 if paid out of the income of the zamindari, that is to say, the income of the Venkatagiri Estate strictly so called and the income of the properties which did not get transferred to the Government under the Abolition Act.The Madras Impartible Estates Act, 1904, provides by Sec. 9 for the payment of maintenance of junior members of an impartible zamindari family:Where there is in force an agreement relating to payment of maintenance, the Act does not authorise reduction of the quantum of maintenance provided by such agreement except in the circumstances stated in Section 14 (2) - circumstances which are not applicable to the present case. It is admitted that junior members of the Venkatagiri family were receiving maintenance, under the agreement of 1889 until the coming into force of the Abolition Act20. Under the agreement of 1889, plaintiffs 1 to 4 are entitled to payment of Rs. 1,000 per month from the income of the Venkatagiri Zamindari. That part of the zamindari which consisted of the Venkatagiri Estate has been converted into compensation deposited and to be deposited in the office of the Tribunal. The first defendant and plaintiffs 1 to 4 would also be entitled to ryotwari pattas under Sections 12 and 47 of the Abolition Act. It is not disputed that plaintiffs 1 to 4 have been paid Rupees 75,000 when the second instalment of compensation is deposited by the Government. If additional compensation is allowed under Section 54-B of the Abolition Act, plaintiffs 1 to 4 would get a part of such additional compensationIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesThe Subordinate Judge, Nellore, held in O. S. No. 30 of 1932 that plaintiffs 5 and 6 were not the purusha santathi of Venugopal. The decision was affirmed by the High Court in ILR (1939) Mad 622 = (AIR 1939 Mad 614) and an appeal against the judgment of the High Court was dismissed by the Judicial Committee. That decision is binding upon the plaintiffs 5 and 6 on the ground of res judicata. The seventh plaintiff as the son of the 5th plaintiff can claim no higher rights than the 5th plaintiffThis clause provides that on the death of any male member entitled to maintenance allowance under the deed without leaving any male issue either by birth or adoption, the allowance which was received by that person should go according to Hindu Law to the gnatis who in the same line as the deceased are nearest to such deceased member. Plaintiffs 5 to 7 alternatively claimed to be the gnatis of Venugopal. In our opinion, it is not open to plaintiffs 5 to 7 to re-agitate the matter which should have been pressed as a ground of claim in the previous suit. In any case the argument is without substance.It is true that the word `gnati in Sanskrit literally interpreted includes a brother also. But in the context of the particular passage in the agreement, it could not have been the intention of the parties that when there was a failure of legitimate or adopted son, gnatis including illegitimate sons would take the allowance.The question in reality is not whether an legitimate brother is a gnati or not for purposes of succession, but whether the word is used in that unusual sense in the agreement. As pointed out in the previous case, this clause has no application and the case is really governed by the earlier clause already referred to. We accordingly reject the argument of plaintiffs 5 to 7 on this aspect of the case21. Lastly, it was contended on behalf of plaintiffs 1 to 4 that they were entitled to one-third share of the golden howdah in sub-item 8 of item No. 8 of B Schedule. The only evidence upon which plaintiffs relied was cls. 5 and 6 in the will of Rajagopalkrishna dated 22nd September, 1910,These clauses make it clear that the golden howdah had been divided and nothing was left for further division. In our opinion the Division Bench was right in taking the view that the plaintiffs 1 to 4 are not entitled to division of the golden howdah. | 1 | 5,799 | 1,636 | ### Instruction:
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and were satisfied that the Estates included in the schedule to Act 2 of 1904 were impartible and the inclusion of the Estates therein is a legislative determination that they were impartible. In Pushavathi Vijayaram Gajapathi Raj v. Pushavathi Visweswar Gajapathi Raj, (1964) 2 SCR 403 = (AIR 1964 SC 118 ), this Court observed: Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the limitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II.1902, II/1903 and II/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and conditions on which the said estates were held. 12. In these circumstances we see no reason to differ from the finding of the High Court that the Estate of Venkatagiri was an ancient impartible Estate by custom and was not made impartible for the first time under the agreement of 1889 or by the Madras Acts of 1902 and 1904. 13. The next question for determination is what is the effect of the Abolition Act on the rights and obligations of the members of the family in relation to the Venkatagiri Zamindari. According to the plaintiffs the property described in the B Schedule appended to the plaint did not vest under Section 3 (b) of the Abolition Act. The properties in the B Schedule include a building at Mount Road Madras a bungalow at Kalahasti and the District Judges bungalow at Nellore Town. These buildings are situated outside the territorial limits of the Venkatagiri Estate. Section 3 (a) and (b) of the Abolition Act states: x x x x x x 3 With effect on and from the notified date and save as otherwise expressly provided in this Act- (a) the Madras Estates Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947) in so far as it relates to matters other than the reduction of rents and the collection of arrears of rent and the Madras Permanent Settlement Regulation, 1802 (Madras Regulation XXV of 1802), the Madras Estates Land Act, 1908 (Madras Act I of 1908), and all other enactments applicable to the estate as such shall be deemed to have been repealed in their application to the estate. (b) the entire estate (including all communal lands; porambokes: other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1864, and all other enactments applicable to ryotwari areas shall apply to the estate; x x x x x x Section 1 (3), states: x x x x x x (3) It applies to all estates as defined in Section 3, clause (2) of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936. Section 2 (3) defines estate to mean . . . x x x x x x (3) estate means a zamindari or an undertenure or an inam estate; x x x x x x Section 2 (16) defines Zamindari as follows: x x x x x x (16) zamindari estate means- (i) an estate within the meaning of Section 3, clause (2) (a) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (b) or (2) (e) of that Act; or (ii) an estate within the meaning of Section 3, clause (2) (b) or (2) (c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, clause (2) (e), of that Act. x x x x x x Section 3 (2) of Estates Land Act (Madras Act I of 1908) defined an estate to mean: (a) any permanently-settled estate or temporarily-settled zamindari; (b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; x x x x x x 14. Section 2 (2) of the Madras Impartible Estates Act, 1904 (Madras Act 2 of 1904) defines an `impartible estate as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. In relation to the Venkatagiri Zamindari the expression `Estate in Section 3 (a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then was subject to the operation of the Madras Permanent Settlement Regulation and the Madras Estates Land Act. In relation to the Venkatagiri Zamindari Section 66 of the Abolition Act enacts that with effect from the notified date the Madras Impartible Estates Act, 1904 shall be deemed to have been repealed in its application to the Estate,. The question arises whether the word estate in Section 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government under the Abolition Act and properties which are not so transferred, or whether the expression `estate refers to only the Venkatagiri Estate which until the notification issued under the Abolition Act took effect was the subject of the Permanent Settlement Regulation and the Madras Estates Land Act.The High Court has given sufficient reasons in support of its view that the word estate in Section 66 of the Abolition Act denotes only the estate governed by the Permanent Settlement Regulation and the Estates Land Act and not any other part of the impartible zamindari. In other words the Abolition Act has no application to properties which are outside the territorial limits of the Venkatagiri Estate.
### Response:
1
### Explanation:
is now well settled. Impartibility is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and, therefore, have no right of partition having regard to the very nature of the estate that it is impartial. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to Section 4 of the Madras Impartible Estates Act in the case of impartible estates governed by the Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the Judicial Committee in Commr. of I.-T., Punjab v. Krishna Kishore, 68 Ind App 155 = (AIR 1941 PC 120 ), App 155 = (AIR 1941 PC 120 ), 68 Ind App 181 = (AIR 1942 P C 3).The income of the impartible estate is the individual in- come of the holder of the estate and is not the income of the joint familyUnder the agreement of 1889, plaintiffs 1 to 4 are entitled to an allowance of Rs. 1,000 if paid out of the income of the zamindari, that is to say, the income of the Venkatagiri Estate strictly so called and the income of the properties which did not get transferred to the Government under the Abolition Act.The Madras Impartible Estates Act, 1904, provides by Sec. 9 for the payment of maintenance of junior members of an impartible zamindari family:Where there is in force an agreement relating to payment of maintenance, the Act does not authorise reduction of the quantum of maintenance provided by such agreement except in the circumstances stated in Section 14 (2) - circumstances which are not applicable to the present case. It is admitted that junior members of the Venkatagiri family were receiving maintenance, under the agreement of 1889 until the coming into force of the Abolition Act20. Under the agreement of 1889, plaintiffs 1 to 4 are entitled to payment of Rs. 1,000 per month from the income of the Venkatagiri Zamindari. That part of the zamindari which consisted of the Venkatagiri Estate has been converted into compensation deposited and to be deposited in the office of the Tribunal. The first defendant and plaintiffs 1 to 4 would also be entitled to ryotwari pattas under Sections 12 and 47 of the Abolition Act. It is not disputed that plaintiffs 1 to 4 have been paid Rupees 75,000 when the second instalment of compensation is deposited by the Government. If additional compensation is allowed under Section 54-B of the Abolition Act, plaintiffs 1 to 4 would get a part of such additional compensationIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesIn other words, the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation amount and the sum of Rs 1,000 per mensem and the difference was made a charge on items 1, 14 and 16 of Schedule B propertiesThe Subordinate Judge, Nellore, held in O. S. No. 30 of 1932 that plaintiffs 5 and 6 were not the purusha santathi of Venugopal. The decision was affirmed by the High Court in ILR (1939) Mad 622 = (AIR 1939 Mad 614) and an appeal against the judgment of the High Court was dismissed by the Judicial Committee. That decision is binding upon the plaintiffs 5 and 6 on the ground of res judicata. The seventh plaintiff as the son of the 5th plaintiff can claim no higher rights than the 5th plaintiffThis clause provides that on the death of any male member entitled to maintenance allowance under the deed without leaving any male issue either by birth or adoption, the allowance which was received by that person should go according to Hindu Law to the gnatis who in the same line as the deceased are nearest to such deceased member. Plaintiffs 5 to 7 alternatively claimed to be the gnatis of Venugopal. In our opinion, it is not open to plaintiffs 5 to 7 to re-agitate the matter which should have been pressed as a ground of claim in the previous suit. In any case the argument is without substance.It is true that the word `gnati in Sanskrit literally interpreted includes a brother also. But in the context of the particular passage in the agreement, it could not have been the intention of the parties that when there was a failure of legitimate or adopted son, gnatis including illegitimate sons would take the allowance.The question in reality is not whether an legitimate brother is a gnati or not for purposes of succession, but whether the word is used in that unusual sense in the agreement. As pointed out in the previous case, this clause has no application and the case is really governed by the earlier clause already referred to. We accordingly reject the argument of plaintiffs 5 to 7 on this aspect of the case21. Lastly, it was contended on behalf of plaintiffs 1 to 4 that they were entitled to one-third share of the golden howdah in sub-item 8 of item No. 8 of B Schedule. The only evidence upon which plaintiffs relied was cls. 5 and 6 in the will of Rajagopalkrishna dated 22nd September, 1910,These clauses make it clear that the golden howdah had been divided and nothing was left for further division. In our opinion the Division Bench was right in taking the view that the plaintiffs 1 to 4 are not entitled to division of the golden howdah.
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V.N. PUBLIC HEALTH AND EDUCATIONAL TRUST ETC Vs. STATE OF KERALA & ORS. ETC | no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents. 23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature. 24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. 25. In view of above, this issue is also answered against the appellant and in favour of the respondents. 26. Once again reverting back to the factual matrix of the present case, an inspection of the appellant institution was carried out on 09.11.2020 and following deficiencies were found : I. Infrastructure i. Needs thorough refinement to start a medical college. Construction of the building is not completed. II. Equipments i. Needs refined equipments in theatre, Laundry, Labs, Histopathology and Radiology. ii. Blood Bank – Nil iii. Practical Laboratories- Available I (required 3) iv. Journals - Nil v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU – Available 18 beds (required -60 beds) vi. X-Ray Mobile Unit- Available 1 (required 2) vii. No in house facilities are available and spaced are available most requirement are out sourced for Microbiology and Pathology Laboratories. III. Clinical Materials As per records, it is not clear whether a 300 bedded hospital (NMC Norms) is running for past 2 years. Records shows hospital is functioning only from 2019 onwards. On the day of inspection, Bed occupancy is 30 % only. OPD required is 600 and there is only less than 200 attendance on the day of inspection. IV. Faculty Deficiencies The following faculty deficiencies was noted: i. One Professor in the Dept. of Biochemistry. ii. Associate Professor -8 (Anatomy-1, Physiology-1, Pharmacology-1, Pathology-1, General Medicine-1, Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1) iii. Assistant Professor-11 (Anatomy-2, Physiology-3, Forensic Medicine-1, Community Medicine-1, General Medicine-1, Respiratory Medicine-1, OBG-1, Anasthesiology-1) iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2, Biochemistry-4, pathology-1, Microbiology-1, Forensic Medicine-1, General Medicine-3, Paediatrics-1, Pulmonary Medicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%. 27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020. 28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:- It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. 30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India. 31. Initial time schedule fixed under the Regulations for establishment of a new Medical College was amended in 2015 vide Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA TABLE 32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant. | 1[ds]13. In the case of Medical Council of India (Supra), it has been held that the Court has repeatedly observed that the decision taken by the Union of India on the basis of the recommendation of the expert body, cannot be interfered with lightly and interference is permissible only when the college demonstrates jurisdictional errors ex-facie perversity or malafides. In the case of The Chairman, S.R. Educational and Charitable Trust & Anr. (Supra), this Court observed as under : -High Court at the same time has ordered inspection and if the deficiencies are found to existence then the Medical Council of India and Govt. of India have been given liberty to take appropriate decision. Such orders may ruin the entire carrier of the students. Once permission to admit students is granted, it should not be such conditional one. Considering the deficiencies, it would be against the efficacious medical education and would amount to permit the unequipped medical College to impart Medical education without proper infrastructure and faculty, patients serve as the object of teaching by such an approach ultimately interest of the society would suffer and half- baked doctors cannot be left loose on society like drones and parasites to deal with the life of the patients in the absence of proper educational training. It would be dangerous and again the right to life itself in case unequipped medical colleges are permitted to impart substandard medical education without proper facilities and infrastructure.16. Thus, an EC is mandatorily required by a person before he receives permission for establishment of a Medical College. The Legislative scheme that imposes the requirement of the EC is prescribed in Section 10(A) of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed. The Central Government then refers the scheme to the MCI for its recommendations. The Medical Council is required to consider the same and satisfy itself by obtaining any particulars as are necessary and after having the defects if any removed, make its recommendations to the Central Government. The Central Government, may on receipt of the scheme, approve it conditionally or disapprove the same.17. The power to permit the establishment of a Medical College is thus conferred on the Central Government by the MCI Act. The Regulations referred above, were framed in exercise of powers conferred under Section 10(A) read with Section 33 of the MCI Act prescribed the qualifying criteria. These criteria lay down the eligibility to apply for permission to establish a Medical College. One of the criteria is that the person who is desirous of establishing a Medical College should obtain an Essentiality Certificate as prescribed in Form 2 of the Regulations, certifying that the State Government/Union Territory Administration has no objection for the establishment of the proposed Medical College at the proposed site and availability of adequate clinical material. Thus, the State Government is required to certify that it has decided to issue an Essentiality Certificate for the establishment of a Medical College with a specified number of seats in public interest and further such establishment is feasible.This Essentiality Certificate in the prescribed form is crucial for avoiding cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice.Medical Council of India Regulations as well as Kerala University Health Sciences Statutes very emphatically mandate that the consent of affiliation can only be given after the Institution fulfills the essential requirements. The contention of the Appellant that the absence of Essentiality Certificate is not one of the factors for consideration and is extraneous to the decision-making process cannot be accepted. Whilst granting the Essentiality Certificate, the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. Such an undertaking on the part of the State Government is unequivocal and unambiguous. An Essentiality Certificate by the State Government legitimizes a medical college declaring it fit to impart medical education and gives accouchement to the expectation amongst the stakeholders that the Applicant College shall fulfill basic norms specified by the MCI to start and operate a medical college. Bearing in mind that the question of justified existence of a college and irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. We come to the conclusion that the issuance/re-issuances of an essentiality certificate is not in any way a ministerial job and while dealing with a case of maintaining standards in a professional college, strict approach must be adopted as these colleges are responsible for ensuring that medical graduate has the required skill set to work as a doctor in the country. Poor assessment system; exploding number of medical colleges; shortage of patients/clinical materials; devaluation of merit in admission, particularly in private institutions; increasing capitation fees; a debilitated assessment and accreditation system, are problems plaguing our Medical Education system. Allowing such deficient colleges to continue to function jeopardizes the future of the student community and leading to incompetent doctors to graduate from such colleges and ultimately pose a bigger risk to the society at large defeating the very purpose of the Essentiality Certificate issued by the State. The State would be deterring from its duty if it did not conduct an inspection from time to time to ensure that the requisite standards as set by the MCI are met before issuing/renewing the Essentiality certificate. That is by no stretch of imagination merely a ministerial job. Considering especially that while issuing the Essentiality Certificate the State Govt undertakes that should the Medical College fail to provide the requisite infrastructure and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College.Same is the position with respect of CoA by the University. The First Statute of KUHS prescribes that University may appoint a Commission to inspect the proposed site to make a physical verification of the existing facilities and suitability of proposed site. The grant of affiliation is dependent upon fulfillment of all the conditions that are specified in Clause X(I) of First Statues or that may be specified which includes staff, infrastructure facility, hospital, internet, library, playground, hostel, etc. Thus, even grant of CoA by the University also cannot be said to be merely a ministerial act.In view of above, we are of the considered opinion that grant of EC by the State Government and CoA by the University is not simply a ministerial act and we do not find any merit in the argument of the appellant in this regard.22. A two-Judge Bench decision in the case of Chintpurni Medical College (Supra) was considered by a three-Judge Bench in the case of Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Ors. (2020) SCC Online SC 851 In paragraph 13 of the reports, the three-Judge Bench though agreed with the dictum in Chintpurni Medical College (Supra) that the act of the State in issuing EC is a quasi-judicial function. It further went on to note the exception carved out in the case of Chintpurni Medical College (Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (Supra).Let us make it clear that there can be no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents.23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception.25. In view of above, this issue is also answered against the appellant and in favour of the respondents.27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:-It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners.30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India.32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant. | 1 | 9,062 | 2,416 | ### Instruction:
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:
no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents. 23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature. 24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception. 25. In view of above, this issue is also answered against the appellant and in favour of the respondents. 26. Once again reverting back to the factual matrix of the present case, an inspection of the appellant institution was carried out on 09.11.2020 and following deficiencies were found : I. Infrastructure i. Needs thorough refinement to start a medical college. Construction of the building is not completed. II. Equipments i. Needs refined equipments in theatre, Laundry, Labs, Histopathology and Radiology. ii. Blood Bank – Nil iii. Practical Laboratories- Available I (required 3) iv. Journals - Nil v. ICU/ICCU/PICU/NICU/SICU/Obstetric ICU/ICU – Available 18 beds (required -60 beds) vi. X-Ray Mobile Unit- Available 1 (required 2) vii. No in house facilities are available and spaced are available most requirement are out sourced for Microbiology and Pathology Laboratories. III. Clinical Materials As per records, it is not clear whether a 300 bedded hospital (NMC Norms) is running for past 2 years. Records shows hospital is functioning only from 2019 onwards. On the day of inspection, Bed occupancy is 30 % only. OPD required is 600 and there is only less than 200 attendance on the day of inspection. IV. Faculty Deficiencies The following faculty deficiencies was noted: i. One Professor in the Dept. of Biochemistry. ii. Associate Professor -8 (Anatomy-1, Physiology-1, Pharmacology-1, Pathology-1, General Medicine-1, Orthopaedics-1, Anaesthesia-1, Radiodiagnosis-1) iii. Assistant Professor-11 (Anatomy-2, Physiology-3, Forensic Medicine-1, Community Medicine-1, General Medicine-1, Respiratory Medicine-1, OBG-1, Anasthesiology-1) iv. Tutor/Demostrator/SR-29 (Anatomy-4, Physiology-2, Biochemistry-4, pathology-1, Microbiology-1, Forensic Medicine-1, General Medicine-3, Paediatrics-1, Pulmonary Medicine-1, DVL-1, Psychiatry-1, General Surgery-3, ENT-1, OBG-2, Anasthesia-1, Radiodiagnosis1, Dentistry-1) 4. There is total Faculty deficiency of 32% and Tutor/Demonstrator/SR deficiency of 78%. 27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020. 28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI. 29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:- It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. 30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India. 31. Initial time schedule fixed under the Regulations for establishment of a new Medical College was amended in 2015 vide Establishment of Medical College Regulations (Amendment), 2015. The said amendment substituted the following schedule :- TIME SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES/RENEWAL OF PERMISSION AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA TABLE 32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.
### Response:
1
### Explanation:
to note the exception carved out in the case of Chintpurni Medical College (Supra), wherein the State Government can cancel/revoke/withdraw the EC in paragraph 36. It was finally observed in paragraph 25 of the reports in Sukh Sagar Medical College and Hospital (Supra) as under:-25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (Supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.08.2014 has remained unfulfilled by the appellant-college for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate has completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the appellant-college is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (Supra).Let us make it clear that there can be no analogy drawn between the facts of Chintpurni case (Supra) and the present case. The Sukh Sagar Case (Supra) actually expanded the circumstances in which the State Government may withdraw the EC. The dictum of Sukh Sagar (Supra) actually supports the case of respondents.23. The law thus stand settled that the State Government has power to withdraw the EC where it is obtained by playing fraud on it or where the very substratum on which the EC was granted vanishes or any other reason of like nature.24. In the case at hand, even though initially a conditional EC was granted in the year 2004 subject to removal of deficiencies and since then 17 years elapsed, the appellant has been unsuccessful in removing the deficiencies. Reference may be made to the last joint inspection carried out on 07th November, 2020, wherein a number of deficiencies were noted and the facilities were found inadequate for consideration of an application for the year 2021-2022. What is true in case of vanishing of substratum applies with equal force where the substratum is missing right from the very inception.25. In view of above, this issue is also answered against the appellant and in favour of the respondents.27. The appellant institution was duly intimated about the deficiencies calling for their remarks. No objection was raised regarding inspection though a compliance report was submitted contending that facilities available are sufficient to grant affiliation. However, noting gross deficiencies found during inspection the application for grant of CoA for Academic Year 2021-22 was rejected vide letter/order dated 23.11.2020.28. In the case at hands, the Essentiality Certificate was first issued in the year 2004 and over 17 years later the appellant College is not in a position to secure requisite permissions from the MCI. It is quite apparent that the Appellant Institution has been long trying to escape its responsibility and fill up the lacuna through judicial process by getting Orders from the High Court for consent of affiliation and consideration of its belated half-baked applications before the MCI. In both the inspections in 2015 and 2020, it was found that the Appellant Institution lacks proper facilities. Even though the Appellant claims to be running a hospital since 2006 neither adequate amenities nor infrastructure on inspection was found to be in existence. This lackadaisical attitude is testament to the fact that the Appellant has no real interest in running a Hospital in that place and has no ground to call foul upon rejection of EC, CoA or its applications before MCI.29. There is yet another aspect of the matter not only proper facilities and infrastructure including teaching faculty is absolutely necessary but adherence to time schedule is also equally important. This Court in the case of Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.7 has observed in Paragraph 13 as under:-It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners.30. Regulation 8(3) of the 1999 Regulations provides a schedule for the receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and the Medical Council of India.32. Time and again, this Court has emphasized that time schedule either for establishment of new Medical College or to increase intake in existing colleges shall be adhered to strictly by all concerned. There is no manner of doubt that the time schedule prescribed in receipt of starting a new Medical College for the year 2020- 2021 is already over long back. Even the last date for the Academic Year 2021-2022 which was extended to 15.12.2020, in view of prevailing Covid-19 Pandemic is also over by now. Thus the State Government of the University cannot be directed to issue EC or CoA to the appellant for the year 2020-2021 even notionally as suggested by the learned counsel for the appellant.
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MAHARASHTRA SEAMLESS LIMITED Vs. PADMANABHAN VENKATESH | resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 24. On behalf of the Indian Bank and the said promoter of the corporate debtor, reliance was placed on Clause 35 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016: 35. Liquidation value. (1) Liquidation value is the estimated realizable value of the assets of the corporate debtor if the corporate debtor were to be liquidated on the insolvency commencement date. (2) Liquidation value shall be determined in the following manner: (a) the two registered valuers appointed under Regulation 27 shall submit to the interim resolution professional or the resolution professional, as the case may be, an estimate of the liquidation value computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the corporate debtor; (b) if in the opinion of the interim resolution professional or the resolution professional, as the case may be, the two estimates are significantly different, he may appoint another registered valuer who shall submit an estimate computed in the same manner; and (c) the average of the two closest estimates shall be considered the liquidation value. (3) The resolution professional shall provide the liquidation value to the committee in electronic form. 25. Now the question arises as to whether, while approving a resolution plan, the Adjudicating Authority could reassess a resolution plan approved by the Committee of Creditors, even if the same otherwise complies with the requirement of Section 31 of the Code. Learned counsel appearing for the Indian Bank and the said erstwhile promoter of the corporate debtor have emphasised that there could be no reason to release property valued at Rs.597.54 crores to MSL for Rs.477 crores. Learned counsel appearing for these two respondents have sought to strengthen their submission on this point referring to the other Resolution Applicant whose bid was for Rs.490 crores which is more than that of the appellant MSL. 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan. 28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront. 29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not. 30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question. | 1[ds]16. It is admitted position that approximately Rs.472 crores have been remitted to the financial creditors which was received from Mr. Sibals clients. The D.B. International Asia Limited, having 73.40% voting shares in the CoC has also assailed the impugned order on grounds similar to that taken by the MSLBefore we proceed to answer these two questions, we must indicate that before the Appellate Authority substantial argument was advanced over failure on the part of the Adjudicating Authority to maintain parity between the financial creditors and operational creditors on the aspect of clearing duesWe have taken note of submission made by Mr. Singhvi that the operational creditors of the corporate debtor come way down in the priority list for distribution of assets under Section 53 of the Code in forming our opinion over applicability of clause 38(1) of the 2016 Regulations expressed in the previous paragraph. But on this point, a clear guidance comes from the decision of co-ordinate Bench in the case of Essar Steel (supra) on the point of dealing with the claims of operational creditors26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question. | 1 | 9,123 | 920 | ### Instruction:
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resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 24. On behalf of the Indian Bank and the said promoter of the corporate debtor, reliance was placed on Clause 35 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016: 35. Liquidation value. (1) Liquidation value is the estimated realizable value of the assets of the corporate debtor if the corporate debtor were to be liquidated on the insolvency commencement date. (2) Liquidation value shall be determined in the following manner: (a) the two registered valuers appointed under Regulation 27 shall submit to the interim resolution professional or the resolution professional, as the case may be, an estimate of the liquidation value computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the corporate debtor; (b) if in the opinion of the interim resolution professional or the resolution professional, as the case may be, the two estimates are significantly different, he may appoint another registered valuer who shall submit an estimate computed in the same manner; and (c) the average of the two closest estimates shall be considered the liquidation value. (3) The resolution professional shall provide the liquidation value to the committee in electronic form. 25. Now the question arises as to whether, while approving a resolution plan, the Adjudicating Authority could reassess a resolution plan approved by the Committee of Creditors, even if the same otherwise complies with the requirement of Section 31 of the Code. Learned counsel appearing for the Indian Bank and the said erstwhile promoter of the corporate debtor have emphasised that there could be no reason to release property valued at Rs.597.54 crores to MSL for Rs.477 crores. Learned counsel appearing for these two respondents have sought to strengthen their submission on this point referring to the other Resolution Applicant whose bid was for Rs.490 crores which is more than that of the appellant MSL. 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan. 28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront. 29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not. 30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question.
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16. It is admitted position that approximately Rs.472 crores have been remitted to the financial creditors which was received from Mr. Sibals clients. The D.B. International Asia Limited, having 73.40% voting shares in the CoC has also assailed the impugned order on grounds similar to that taken by the MSLBefore we proceed to answer these two questions, we must indicate that before the Appellate Authority substantial argument was advanced over failure on the part of the Adjudicating Authority to maintain parity between the financial creditors and operational creditors on the aspect of clearing duesWe have taken note of submission made by Mr. Singhvi that the operational creditors of the corporate debtor come way down in the priority list for distribution of assets under Section 53 of the Code in forming our opinion over applicability of clause 38(1) of the 2016 Regulations expressed in the previous paragraph. But on this point, a clear guidance comes from the decision of co-ordinate Bench in the case of Essar Steel (supra) on the point of dealing with the claims of operational creditors26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question.
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Delhi Administration & Another Vs. Kidarnath Mohindernath & Another | correct. If the entire land is needed for a public purpose, it is not necessary for the Government (or here the Ld. Governor) to say in the Section 6 declaration that each piece of land is required for the public purpose. The Division Bench then mixed up this question with individual objections in each writ petition. Obviously, these individual objections of types (ii) and (iii) mentioned above can only be personal to each writ petitioner or peculiar in respect of each of the pieces of land owned. In that event, the rejection of the objections by the Land Acquisition Officer and the "satisfaction" of the Government/Lt. Governor can relate only to each of these pieces of land and not the whole. Therefore, there is no question of the Division Bench holding in its order dated 18-11-1988 that the satisfaction of the Ld. Governor in respect of the entire land is vitiated. As already stated, the satisfaction regarding public purpose was never in issue.57. It was then argued that satisfaction under Section 6 for the rest of the land not covered by the 73 writ petitioners or even where no objections are filed under Section 5-A, must be held vitiated because the objections filed in certain other cases were not properly considered by the officer and hence Section 6 satisfaction of the Ld. Governor for the rest of the land is also vitiated.58. We are unable to agree that in the cases not before the Division Bench and in particular in cases where no objections are filed, the satisfaction under Section 6 is vitiated because in some other cases, the objections which were filed were not properly disposed of. As to rejection of personal grounds of each writ petitioner, - other than the 73 writ petitions - there was no occasion for the Lt. Governor to apply his mind if objections were not indeed filed. The only question then could have been about the public purpose.59. In the present cases there is no dispute that the purpose is a public purpose. The applicant had not filed objections on grounds personally applicable to him or to this land seeking exclusion from acquisition, and the objections in that behalf must be deemed to have been waived. Such a person cannot be allowed to file a writ petition seeking the quashing of Section 5-A inquiry and Section 6 declaration on personal grounds if he had not filed objections. Points 4 and 5 are decided accordingly against the applicants."(Emphasis supplied)15. In view of the aforesaid decision, it is clear that the decision of the High Court is not correct and impugned order passed by the High Court can not be sustained. Though, aforesaid binding decision was available but it was not placed before the High Court.16. Coming to the next submission raised by learned counsel for Respondent No.1 with respect to the declaration under Section 6 whether it was issued after requisite period prescribed under proviso of Section 6 (1) of the Act. Section 6 (1) of the Act makes it clear that in computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1), is stayed by an order of a Court shall be excluded and this aspect has been taken into consideration in respect to the same notification by this Court in the case of Om Parkash (supra) in which it has been laid down :"71. It is also worth mentioning that each of the notifications issued under Section 4 of the Act was composite in nature. The interim order of stay granted in one of the matters i.e. Munni Lal and confirmed subsequently have been reproduced herein above. We have also been given to understand that similar orders of stay were passed in many other petitions. Thus, in the teeth of such interim orders of stay, as reproduced herein above, we are of the opinion that during the period of stay the respondents could not have proceeded further to issue declaration/notification under Section 6 of the Act. As soon as the interim stay came to be vacated by virtue of the main order having been passed in the writ petition, the respondents, taking advantage of the period of stay during which they were restrained from issuance of declaration under Section 6 of the Act proceeded further and issued notification under Section 6 of the Act.72. Thus, in other words, the interim order of stay granted in one of the matters of the landowners would put complete restraint on the respondents to have proceeded further to issue notification under Section 6 of the Act. Had they issued the said notification during the period when the stay was operative, then obviously they may have been hauled up for committing contempt of court. The language employed in the interim orders of stay is also such that it had completely restrained the respondents from proceeding further in the matter by issuing declaration/notification under Section 6 of the Act."17. Thus submission is liable to be rejected. Apart from that we find that this objection had not been pressed rightly, in view of the aforesaid decision, before the High Court. We are of the opinion that no case for interference is made out on this ground also.18. It was submitted by the learned counsel for Respondent No.1 that in one such other case, Delhi Administration has accepted a judgment of Delhi High Court thus could not have questioned the order passed by the High Court in the case of the Respondent No.1 only. We are not inclined to accept the submission raised by the learned counsel for Respondent No.1, firstly, for the reason that there is no concept of negative equality, secondly, apart from that, this Court has already decided the matter in the decisions mentioned above which were binding and not brought into the notice of the High Court. Thus, illegal order cannot be permitted to survive. | 1[ds]11. After hearing learned counsel for the parties, we are of the considered opinion that notification issued under Section 4 of the Act was with respect to the large chunk of area, comprised in several villages, approximately 50,000 bighas was proposed to be acquired. Though, it is true that notification issued under Section 4 of the Act intended to exempt the land, with respect to which building plans, had been sanctioned before 05.11.1980. The notification under Section 4 was with respect to the entire area in villages, it was necessary to claim exemption and there was no other mechanism available with respect to the ascertainment of the sanction of the building plan before 05.11.1980, with respect to the particular piece of land, it was to be claimed by filing objections under Section 5 A of the Act.12. In the instant case, inquiry under Sectionhad been held and the lands in question were proposed to be acquired and certain other lands were to be excluded as per notification. The Report under Sectionhad been accepted by appropriate Government and thereafter declaration under Section 6 had been issued. According to the report under Sectionthe land of Respondent No.1 came to be included in the acquisition by virtue of the final declaration issued under Section 6.13. Admittedly, Respondent No.1 did not file any objection under Sectionto seek exemption from acquisition on the basis of the aforesaid sanction. It was incumbent upon Respondent No.1 to have claimed such an exemption from acquisition, otherwise the land of the entire village was notified under Section 4 for the purpose of acquisition. Having failed to do so, it is apparent that he has waived his rights on the basis of so called sanction as it was not made the basis for claiming exemption and in the circumstances when the claim had not been raised for exemption of land, inquiry under Sectioncannot be termed as illegal and consequently declaration under Section 6. Otherwise several complications and piquant situations may arise if it is held that it was not necessary to participate in inquiry to claim exemption then it would not be possible to give finality to declaration under Section 6 and it would have to be quashed time and again on such claims for exemptions not set forth at the stage of inquiry under Sectionof the Act.14. The only purpose of the inquiry is to ascertain which land is to be excluded from acquisition. In such circumstances, when the land was so to be excluded from acquisition on the basis of exceptions mentioned in the Notification under Section 4, it had to be claimed. It would not follow automatically, such exceptions as reflected in Notification under Section 4 find place in other schemes also. However, such exemptions have to be claimed either on the basis of scheme or on the basis of notification in the course of inquiry. Having failed to do so, the final declaration under Section 6 of the Act which had been issued could not be termed illegal.15. In view of the aforesaid decision, it is clear that the decision of the High Court is not correct and impugned order passed by the High Court can not be sustained. Though, aforesaid binding decision was available but it was not placed before the High Court.Thus submission is liable to be rejected. Apart from that we find that this objection had not been pressed rightly, in view of the aforesaid decision, before the High Court. We are of the opinion that no case for interference is made out on this groundare not inclined to accept the submission raised by the learned counsel for Respondent No.1, firstly, for the reason that there is no concept of negative equality, secondly, apart from that, this Court has already decided the matter in the decisions mentioned above which were binding and not brought into the notice of the High Court. Thus, illegal order cannot be permitted to survive. | 1 | 3,169 | 711 | ### Instruction:
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correct. If the entire land is needed for a public purpose, it is not necessary for the Government (or here the Ld. Governor) to say in the Section 6 declaration that each piece of land is required for the public purpose. The Division Bench then mixed up this question with individual objections in each writ petition. Obviously, these individual objections of types (ii) and (iii) mentioned above can only be personal to each writ petitioner or peculiar in respect of each of the pieces of land owned. In that event, the rejection of the objections by the Land Acquisition Officer and the "satisfaction" of the Government/Lt. Governor can relate only to each of these pieces of land and not the whole. Therefore, there is no question of the Division Bench holding in its order dated 18-11-1988 that the satisfaction of the Ld. Governor in respect of the entire land is vitiated. As already stated, the satisfaction regarding public purpose was never in issue.57. It was then argued that satisfaction under Section 6 for the rest of the land not covered by the 73 writ petitioners or even where no objections are filed under Section 5-A, must be held vitiated because the objections filed in certain other cases were not properly considered by the officer and hence Section 6 satisfaction of the Ld. Governor for the rest of the land is also vitiated.58. We are unable to agree that in the cases not before the Division Bench and in particular in cases where no objections are filed, the satisfaction under Section 6 is vitiated because in some other cases, the objections which were filed were not properly disposed of. As to rejection of personal grounds of each writ petitioner, - other than the 73 writ petitions - there was no occasion for the Lt. Governor to apply his mind if objections were not indeed filed. The only question then could have been about the public purpose.59. In the present cases there is no dispute that the purpose is a public purpose. The applicant had not filed objections on grounds personally applicable to him or to this land seeking exclusion from acquisition, and the objections in that behalf must be deemed to have been waived. Such a person cannot be allowed to file a writ petition seeking the quashing of Section 5-A inquiry and Section 6 declaration on personal grounds if he had not filed objections. Points 4 and 5 are decided accordingly against the applicants."(Emphasis supplied)15. In view of the aforesaid decision, it is clear that the decision of the High Court is not correct and impugned order passed by the High Court can not be sustained. Though, aforesaid binding decision was available but it was not placed before the High Court.16. Coming to the next submission raised by learned counsel for Respondent No.1 with respect to the declaration under Section 6 whether it was issued after requisite period prescribed under proviso of Section 6 (1) of the Act. Section 6 (1) of the Act makes it clear that in computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1), is stayed by an order of a Court shall be excluded and this aspect has been taken into consideration in respect to the same notification by this Court in the case of Om Parkash (supra) in which it has been laid down :"71. It is also worth mentioning that each of the notifications issued under Section 4 of the Act was composite in nature. The interim order of stay granted in one of the matters i.e. Munni Lal and confirmed subsequently have been reproduced herein above. We have also been given to understand that similar orders of stay were passed in many other petitions. Thus, in the teeth of such interim orders of stay, as reproduced herein above, we are of the opinion that during the period of stay the respondents could not have proceeded further to issue declaration/notification under Section 6 of the Act. As soon as the interim stay came to be vacated by virtue of the main order having been passed in the writ petition, the respondents, taking advantage of the period of stay during which they were restrained from issuance of declaration under Section 6 of the Act proceeded further and issued notification under Section 6 of the Act.72. Thus, in other words, the interim order of stay granted in one of the matters of the landowners would put complete restraint on the respondents to have proceeded further to issue notification under Section 6 of the Act. Had they issued the said notification during the period when the stay was operative, then obviously they may have been hauled up for committing contempt of court. The language employed in the interim orders of stay is also such that it had completely restrained the respondents from proceeding further in the matter by issuing declaration/notification under Section 6 of the Act."17. Thus submission is liable to be rejected. Apart from that we find that this objection had not been pressed rightly, in view of the aforesaid decision, before the High Court. We are of the opinion that no case for interference is made out on this ground also.18. It was submitted by the learned counsel for Respondent No.1 that in one such other case, Delhi Administration has accepted a judgment of Delhi High Court thus could not have questioned the order passed by the High Court in the case of the Respondent No.1 only. We are not inclined to accept the submission raised by the learned counsel for Respondent No.1, firstly, for the reason that there is no concept of negative equality, secondly, apart from that, this Court has already decided the matter in the decisions mentioned above which were binding and not brought into the notice of the High Court. Thus, illegal order cannot be permitted to survive.
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11. After hearing learned counsel for the parties, we are of the considered opinion that notification issued under Section 4 of the Act was with respect to the large chunk of area, comprised in several villages, approximately 50,000 bighas was proposed to be acquired. Though, it is true that notification issued under Section 4 of the Act intended to exempt the land, with respect to which building plans, had been sanctioned before 05.11.1980. The notification under Section 4 was with respect to the entire area in villages, it was necessary to claim exemption and there was no other mechanism available with respect to the ascertainment of the sanction of the building plan before 05.11.1980, with respect to the particular piece of land, it was to be claimed by filing objections under Section 5 A of the Act.12. In the instant case, inquiry under Sectionhad been held and the lands in question were proposed to be acquired and certain other lands were to be excluded as per notification. The Report under Sectionhad been accepted by appropriate Government and thereafter declaration under Section 6 had been issued. According to the report under Sectionthe land of Respondent No.1 came to be included in the acquisition by virtue of the final declaration issued under Section 6.13. Admittedly, Respondent No.1 did not file any objection under Sectionto seek exemption from acquisition on the basis of the aforesaid sanction. It was incumbent upon Respondent No.1 to have claimed such an exemption from acquisition, otherwise the land of the entire village was notified under Section 4 for the purpose of acquisition. Having failed to do so, it is apparent that he has waived his rights on the basis of so called sanction as it was not made the basis for claiming exemption and in the circumstances when the claim had not been raised for exemption of land, inquiry under Sectioncannot be termed as illegal and consequently declaration under Section 6. Otherwise several complications and piquant situations may arise if it is held that it was not necessary to participate in inquiry to claim exemption then it would not be possible to give finality to declaration under Section 6 and it would have to be quashed time and again on such claims for exemptions not set forth at the stage of inquiry under Sectionof the Act.14. The only purpose of the inquiry is to ascertain which land is to be excluded from acquisition. In such circumstances, when the land was so to be excluded from acquisition on the basis of exceptions mentioned in the Notification under Section 4, it had to be claimed. It would not follow automatically, such exceptions as reflected in Notification under Section 4 find place in other schemes also. However, such exemptions have to be claimed either on the basis of scheme or on the basis of notification in the course of inquiry. Having failed to do so, the final declaration under Section 6 of the Act which had been issued could not be termed illegal.15. In view of the aforesaid decision, it is clear that the decision of the High Court is not correct and impugned order passed by the High Court can not be sustained. Though, aforesaid binding decision was available but it was not placed before the High Court.Thus submission is liable to be rejected. Apart from that we find that this objection had not been pressed rightly, in view of the aforesaid decision, before the High Court. We are of the opinion that no case for interference is made out on this groundare not inclined to accept the submission raised by the learned counsel for Respondent No.1, firstly, for the reason that there is no concept of negative equality, secondly, apart from that, this Court has already decided the matter in the decisions mentioned above which were binding and not brought into the notice of the High Court. Thus, illegal order cannot be permitted to survive.
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Raja Bahadur Dhanraj Girji Vs. Raja P. Parthasarathy Rayanimvaru And Others | the question as to whether liability under such a surety bond is discharged by reason of the fact that a compromise decree had been passed in the judicial proceedings in which the surety bond came to be executed, it will always be necessary to examine the terms of the bond itself. Did the surety contemplate when he executed the bond that the dispute pending between the debtor and the creditor may be compromised, or did be contemplate that the dispute would, and must be settled by the court and not compromised by the parties? If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute would be decided on the merits by the court in invitium and would not be amicably settled, then the compromise of the dispute would discharge the liability of the surety (vide The Official Liquidators, The Travancore National & Quilon Bank Ltd. v. The Official Assignee of Madras, (I.L.R, 944 Mad. 708.) Parvatibai v. Vinayak Balvant (I.L.R. 1938 Bom. 794 .); Mahomedalli Ibrahimji v. Laxmibai, ((1929) I.L.R. LIV Bom. 118.); Narsingh Mahton v. Nirpat Singh ((1932) I.I.R. XI Patna 590.) and Muhammad Yusaf v. Ram Gobinda Ojha. ((1927) I.L.R. LV Cal. 91 .) If, on the other hand, from the terms of the bond it appears that it was within the contemplation of the parties including the surety that the dispute may be amicably settled and the surety executed the bond knowing that his liability may arise even under the compromise decree, then the passing of the compromise decree will not entitle him to claim discharge vide Haji Ahmed v. Maruti Ramji; ((1930) I.L R. LV Bom 97.) Appunni Nair v. Isack Mackadan, ((1919) I.L.R. 43 Mad. 272.) and Kanailal Mookerjee v. Kali Mohan Chatterjee (A.I.R. 1957 Cal 645.). The question would thus always be one of construing the surety bond in order to decide whether a compromise decree discharges the surety or not.Turning to the bond passed by respondents Nos. 2 and 3 in the present case, it is impossible to, hold that it was within the contemplation of the sureties when they executed the bond that the parties would amicably settle their dispute in the manner they have done. At the time when the surety bond was executed, the dispute pending between the parties was the money dispute the decision of which would have ended in an order directing one party to pay another a certain specified amount. The compromise decree has introduced complicated provisions for the satisfaction of the appellants claim against respondent No. 1. Under the compromise decree, the appellant would have been entitled to take possession of the properties in suit and in that process, rival claims of both the parties would have been adjusted. We are satisfied that the material terms in clause 5 of the surety bond could not be said to be attracted when the parties chose to settle their dispute in accordance with the terms of the compromise agreement. Besides, it is clear that the compromise agreement gave time to respondent No. 1 and the decree was, therefore, not executable immediately after it was passed. In substance, by the decree, time was granted though it is true that time was granted to both the parties to discharge their respective obligations under the compromise. That is another reason why we think the liability of respondents No. 2 and 3 under the surety bond is discharged as a result of the Compromise decree.5. There is yet another consideration which is relevant in dealing with this point. It is common ground that amongst the disputes which were settled between the parties was included the claim made by respondent No. 1 for damages on account of the fact that the appellant had created occupancy rights in favour of strangers in respect of the properties which were in his possession as a mortgagee. This claim is plainly outside the proceedings contemplated and permitted by the order passed by the Privy Council, and yet this dispute has been settled by the compromise decree which means that a matter which was strictly not germane to the judicial proceedings in which the surety bond was executed has been introduced by the parties in their final settlement. Therefore, we are satisfied that though the appellant succeeds in showing that he was not a defaulter, he cannot seek his remedy against the surety, respondents Nos. 2 and 3.An attempt was made by Mr. Kuppuswamy to suggest that respondents Nos. 2 and 3 should not have been allowed to raise ibis point before the High Court, because no such point bad been taken by them in the trial Court. We do not think there is any substance in this argument. It is true that respondents No. 2 and 3 did not take any such contention in the trial Court, but that may be because parties had then concentrated on the issue as to who was the defaulter. But when the appeals were argued before the High Court, this point was specifically urged by respondent No. 2 and it has been considered by the High Court. No doubt Mr. Kuppuswamy ingeniously suggested that this was not a pure question of law and so, the High Court should not have allowed it to be raised for the first time in appeal. The argument is that if the point had been raised in the Court of first instance, the appellant would have shown that respondents Nos. 2 and 3 bad consented to the compromise agreement between the appellant and respondent No-. 1. This is clearly an afterthought. If the appellants case was that respondents Nos. 2 and 3 were not discharged by the compromise decree because they were consenting parties to the compromise agreement, they should have stated so before the High Court and the High Court would then have either called for a finding on that issue or would have refused permission to respondents Nos. 2 and 3 to raise that point.6. | 0[ds]There can thus be no doubt that a contract of suretyship to which s. 135 applies would be unenforceable if the debt in question is compromised between the debtor and the creditor without the assent of the surety. But this provision in terms cannot apply to a surety who has executed a bond in favour of the court, because such a contract of guarantee of suretyship does not fall within the scope of s. 126 of the Contract Act. A contract of guarantee under the said section postulates the existence of the surety, the principal debtor and the creditor, and this requirement is not satisfied the case of a bond executed in favour of the court. Such a bond is given to the court and not to the creditor and it is in the discretion of the court to enforce the bond or not. Therefore, there cannot be any doubt that in terms, the provisions of s. 135 cannot apply to a courtis also clear that the equitable principles underlying the provisions of s. 135 apply to such a bond. If, for instance, the decree-holder gives time to the judgment- debtor and promises not to seek his remedy against him during that period, there is no reason why the extension of time granted by the creditor to the debtor should not discharge the surety even where the surety bond is executed in favour of the court. The reason for the equitable rule which entitles the surety to a discharge in such circumstances is that the surety should be able at any time to require the creditor to call upon the principal debtor to pay off his debt or himself pay off the debt and seek his remedy against the principal debtor. If the creditor has bound himself not to claim the debt from his principal debtor, that materially affects the right of the surety and so, whenever time it; granted to the debtor by the creditor without the consent of the surety, the surety can claim discharge. This equitable principle would apply as much to a surety bond to which s. 126. of the Contract Act applies as to a surety bond executed in favour of the court. Therefore, we see no justification for the argument that even the equitable principles underlying the provisions of s. 135 of the contract Act should not apply to surety bonds executed in favour of the court.In determining the question as to whether liability under such a surety bond is discharged by reason of the fact that a compromise decree had been passed in the judicial proceedings in which the surety bond came to be executed, it will always be necessary to examine the terms of the bond itself. Did the surety contemplate when he executed the bond that the dispute pending between the debtor and the creditor may be compromised, or did be contemplate that the dispute would, and must be settled by the court and not compromised by the parties? If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute would be decided on the merits by the court in invitium and would not be amicably settled, then the compromise of the dispute would discharge the liability of the surety (vide The Official Liquidators, The Travancore National & Quilon Bank Ltd. v. The Official Assignee of Madras, (I.L.R, 944 Mad. 708.) Parvatibai v. Vinayak Balvant (I.L.R. 1938 Bom. 794 .); Mahomedalli Ibrahimji v. Laxmibai, ((1929) I.L.R. LIV Bom. 118.); Narsingh Mahton v. Nirpat Singh ((1932) I.I.R. XI Patna 590.) and Muhammad Yusaf v. Ram Gobinda Ojha. ((1927) I.L.R. LV Cal. 91 .) If, on the other hand, from the terms of the bond it appears that it was within the contemplation of the parties including the surety that the dispute may be amicably settled and the surety executed the bond knowing that his liability may arise even under the compromise decree, then the passing of the compromise decree will not entitle him to claim discharge vide Haji Ahmed v. Maruti Ramji; ((1930) I.L R. LV Bom 97.) Appunni Nair v. Isack Mackadan, ((1919) I.L.R. 43 Mad. 272.) and Kanailal Mookerjee v. Kali Mohan Chatterjee (A.I.R. 1957 Calto the bond passed by respondents Nos. 2 and 3 in the present case, it is impossible to, hold that it was within the contemplation of the sureties when they executed the bond that the parties would amicably settle their dispute in the manner they have done. At the time when the surety bond was executed, the dispute pending between the parties was the money dispute the decision of which would have ended in an order directing one party to pay another a certain specified amount. The compromise decree has introduced complicated provisions for the satisfaction of the appellants claim against respondent No. 1. Under the compromise decree, the appellant would have been entitled to take possession of the properties in suit and in that process, rival claims of both the parties would have been adjusted. We are satisfied that the material terms in clause 5 of the surety bond could not be said to be attracted when the parties chose to settle their dispute in accordance with the terms of the compromise agreement. Besides, it is clear that the compromise agreement gave time to respondent No. 1 and the decree was, therefore, not executable immediately after it was passed. In substance, by the decree, time was granted though it is true that time was granted to both the parties to discharge their respective obligations under the compromise. That is another reason why we think the liability of respondents No. 2 and 3 under the surety bond is discharged as a result of the Compromiseis yet another consideration which is relevant in dealing with this point. It is common ground that amongst the disputes which were settled between the parties was included the claim made by respondent No. 1 for damages on account of the fact that the appellant had created occupancy rights in favour of strangers in respect of the properties which were in his possession as a mortgagee. This claim is plainly outside the proceedings contemplated and permitted by the order passed by the Privy Council, and yet this dispute has been settled by the compromise decree which means that a matter which was strictly not germane to the judicial proceedings in which the surety bond was executed has been introduced by the parties in their final settlement. Therefore, we are satisfied that though the appellant succeeds in showing that he was not a defaulter, he cannot seek his remedy against the surety, respondents Nos. 2 and 3.An attempt was made by Mr. Kuppuswamy to suggest that respondents Nos. 2 and 3 should not have been allowed to raise ibis point before the High Court, because no such point bad been taken by them in the trial Court. We do not think there is any substance in this argument. It is true that respondents No. 2 and 3 did not take any such contention in the trial Court, but that may be because parties had then concentrated on the issue as to who was the defaulter. But when the appeals were argued before the High Court, this point was specifically urged by respondent No. 2 and it has been considered by the High Court. No doubt Mr. Kuppuswamy ingeniously suggested that this was not a pure question of law and so, the High Court should not have allowed it to be raised for the first time in appeal. The argument is that if the point had been raised in the Court of first instance, the appellant would have shown that respondents Nos. 2 and 3 bad consented to the compromise agreement between the appellant and respondent No-. 1. This is clearly an afterthought. If the appellants case was that respondents Nos. 2 and 3 were not discharged by the compromise decree because they were consenting parties to the compromise agreement, they should have stated so before the High Court and the High Court would then have either called for a finding on that issue or would have refused permission to respondents Nos. 2 and 3 to raise that point. | 0 | 2,221 | 1,515 | ### Instruction:
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the question as to whether liability under such a surety bond is discharged by reason of the fact that a compromise decree had been passed in the judicial proceedings in which the surety bond came to be executed, it will always be necessary to examine the terms of the bond itself. Did the surety contemplate when he executed the bond that the dispute pending between the debtor and the creditor may be compromised, or did be contemplate that the dispute would, and must be settled by the court and not compromised by the parties? If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute would be decided on the merits by the court in invitium and would not be amicably settled, then the compromise of the dispute would discharge the liability of the surety (vide The Official Liquidators, The Travancore National & Quilon Bank Ltd. v. The Official Assignee of Madras, (I.L.R, 944 Mad. 708.) Parvatibai v. Vinayak Balvant (I.L.R. 1938 Bom. 794 .); Mahomedalli Ibrahimji v. Laxmibai, ((1929) I.L.R. LIV Bom. 118.); Narsingh Mahton v. Nirpat Singh ((1932) I.I.R. XI Patna 590.) and Muhammad Yusaf v. Ram Gobinda Ojha. ((1927) I.L.R. LV Cal. 91 .) If, on the other hand, from the terms of the bond it appears that it was within the contemplation of the parties including the surety that the dispute may be amicably settled and the surety executed the bond knowing that his liability may arise even under the compromise decree, then the passing of the compromise decree will not entitle him to claim discharge vide Haji Ahmed v. Maruti Ramji; ((1930) I.L R. LV Bom 97.) Appunni Nair v. Isack Mackadan, ((1919) I.L.R. 43 Mad. 272.) and Kanailal Mookerjee v. Kali Mohan Chatterjee (A.I.R. 1957 Cal 645.). The question would thus always be one of construing the surety bond in order to decide whether a compromise decree discharges the surety or not.Turning to the bond passed by respondents Nos. 2 and 3 in the present case, it is impossible to, hold that it was within the contemplation of the sureties when they executed the bond that the parties would amicably settle their dispute in the manner they have done. At the time when the surety bond was executed, the dispute pending between the parties was the money dispute the decision of which would have ended in an order directing one party to pay another a certain specified amount. The compromise decree has introduced complicated provisions for the satisfaction of the appellants claim against respondent No. 1. Under the compromise decree, the appellant would have been entitled to take possession of the properties in suit and in that process, rival claims of both the parties would have been adjusted. We are satisfied that the material terms in clause 5 of the surety bond could not be said to be attracted when the parties chose to settle their dispute in accordance with the terms of the compromise agreement. Besides, it is clear that the compromise agreement gave time to respondent No. 1 and the decree was, therefore, not executable immediately after it was passed. In substance, by the decree, time was granted though it is true that time was granted to both the parties to discharge their respective obligations under the compromise. That is another reason why we think the liability of respondents No. 2 and 3 under the surety bond is discharged as a result of the Compromise decree.5. There is yet another consideration which is relevant in dealing with this point. It is common ground that amongst the disputes which were settled between the parties was included the claim made by respondent No. 1 for damages on account of the fact that the appellant had created occupancy rights in favour of strangers in respect of the properties which were in his possession as a mortgagee. This claim is plainly outside the proceedings contemplated and permitted by the order passed by the Privy Council, and yet this dispute has been settled by the compromise decree which means that a matter which was strictly not germane to the judicial proceedings in which the surety bond was executed has been introduced by the parties in their final settlement. Therefore, we are satisfied that though the appellant succeeds in showing that he was not a defaulter, he cannot seek his remedy against the surety, respondents Nos. 2 and 3.An attempt was made by Mr. Kuppuswamy to suggest that respondents Nos. 2 and 3 should not have been allowed to raise ibis point before the High Court, because no such point bad been taken by them in the trial Court. We do not think there is any substance in this argument. It is true that respondents No. 2 and 3 did not take any such contention in the trial Court, but that may be because parties had then concentrated on the issue as to who was the defaulter. But when the appeals were argued before the High Court, this point was specifically urged by respondent No. 2 and it has been considered by the High Court. No doubt Mr. Kuppuswamy ingeniously suggested that this was not a pure question of law and so, the High Court should not have allowed it to be raised for the first time in appeal. The argument is that if the point had been raised in the Court of first instance, the appellant would have shown that respondents Nos. 2 and 3 bad consented to the compromise agreement between the appellant and respondent No-. 1. This is clearly an afterthought. If the appellants case was that respondents Nos. 2 and 3 were not discharged by the compromise decree because they were consenting parties to the compromise agreement, they should have stated so before the High Court and the High Court would then have either called for a finding on that issue or would have refused permission to respondents Nos. 2 and 3 to raise that point.6.
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argument that even the equitable principles underlying the provisions of s. 135 of the contract Act should not apply to surety bonds executed in favour of the court.In determining the question as to whether liability under such a surety bond is discharged by reason of the fact that a compromise decree had been passed in the judicial proceedings in which the surety bond came to be executed, it will always be necessary to examine the terms of the bond itself. Did the surety contemplate when he executed the bond that the dispute pending between the debtor and the creditor may be compromised, or did be contemplate that the dispute would, and must be settled by the court and not compromised by the parties? If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute would be decided on the merits by the court in invitium and would not be amicably settled, then the compromise of the dispute would discharge the liability of the surety (vide The Official Liquidators, The Travancore National & Quilon Bank Ltd. v. The Official Assignee of Madras, (I.L.R, 944 Mad. 708.) Parvatibai v. Vinayak Balvant (I.L.R. 1938 Bom. 794 .); Mahomedalli Ibrahimji v. Laxmibai, ((1929) I.L.R. LIV Bom. 118.); Narsingh Mahton v. Nirpat Singh ((1932) I.I.R. XI Patna 590.) and Muhammad Yusaf v. Ram Gobinda Ojha. ((1927) I.L.R. LV Cal. 91 .) If, on the other hand, from the terms of the bond it appears that it was within the contemplation of the parties including the surety that the dispute may be amicably settled and the surety executed the bond knowing that his liability may arise even under the compromise decree, then the passing of the compromise decree will not entitle him to claim discharge vide Haji Ahmed v. Maruti Ramji; ((1930) I.L R. LV Bom 97.) Appunni Nair v. Isack Mackadan, ((1919) I.L.R. 43 Mad. 272.) and Kanailal Mookerjee v. Kali Mohan Chatterjee (A.I.R. 1957 Calto the bond passed by respondents Nos. 2 and 3 in the present case, it is impossible to, hold that it was within the contemplation of the sureties when they executed the bond that the parties would amicably settle their dispute in the manner they have done. At the time when the surety bond was executed, the dispute pending between the parties was the money dispute the decision of which would have ended in an order directing one party to pay another a certain specified amount. The compromise decree has introduced complicated provisions for the satisfaction of the appellants claim against respondent No. 1. Under the compromise decree, the appellant would have been entitled to take possession of the properties in suit and in that process, rival claims of both the parties would have been adjusted. We are satisfied that the material terms in clause 5 of the surety bond could not be said to be attracted when the parties chose to settle their dispute in accordance with the terms of the compromise agreement. Besides, it is clear that the compromise agreement gave time to respondent No. 1 and the decree was, therefore, not executable immediately after it was passed. In substance, by the decree, time was granted though it is true that time was granted to both the parties to discharge their respective obligations under the compromise. That is another reason why we think the liability of respondents No. 2 and 3 under the surety bond is discharged as a result of the Compromiseis yet another consideration which is relevant in dealing with this point. It is common ground that amongst the disputes which were settled between the parties was included the claim made by respondent No. 1 for damages on account of the fact that the appellant had created occupancy rights in favour of strangers in respect of the properties which were in his possession as a mortgagee. This claim is plainly outside the proceedings contemplated and permitted by the order passed by the Privy Council, and yet this dispute has been settled by the compromise decree which means that a matter which was strictly not germane to the judicial proceedings in which the surety bond was executed has been introduced by the parties in their final settlement. Therefore, we are satisfied that though the appellant succeeds in showing that he was not a defaulter, he cannot seek his remedy against the surety, respondents Nos. 2 and 3.An attempt was made by Mr. Kuppuswamy to suggest that respondents Nos. 2 and 3 should not have been allowed to raise ibis point before the High Court, because no such point bad been taken by them in the trial Court. We do not think there is any substance in this argument. It is true that respondents No. 2 and 3 did not take any such contention in the trial Court, but that may be because parties had then concentrated on the issue as to who was the defaulter. But when the appeals were argued before the High Court, this point was specifically urged by respondent No. 2 and it has been considered by the High Court. No doubt Mr. Kuppuswamy ingeniously suggested that this was not a pure question of law and so, the High Court should not have allowed it to be raised for the first time in appeal. The argument is that if the point had been raised in the Court of first instance, the appellant would have shown that respondents Nos. 2 and 3 bad consented to the compromise agreement between the appellant and respondent No-. 1. This is clearly an afterthought. If the appellants case was that respondents Nos. 2 and 3 were not discharged by the compromise decree because they were consenting parties to the compromise agreement, they should have stated so before the High Court and the High Court would then have either called for a finding on that issue or would have refused permission to respondents Nos. 2 and 3 to raise that point.
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Lakhanlal Etc Vs. State of Orissa and Ors. (with connected appeals) | held that as sections 2 to 5 of the Amending Act of 1970 were not made retrospective in operation, the effect of section 6 amounted to a direction by the Legislature to the State to disregard the decision in Ajodhya Prasads case that the amount realised by auction was illegal and that section 6 was therefore ultra vires the powers of the Legislature. It will be sufficient to say in this connection that the Bihar and Orissa Excise (Second Orissa Amendment) Act, 1971 (Act 10 of 1971) has made good the deficiency, if any, by stating that the amending provisions shall be deemed always to have been so added or inserted or substituted. In this respect also, the impugned judgment of the High Court must be rectified.16. Mr. S.C. Agarwal has argued that the amount realised by the State for grant of the exclusive privilege under sections 22 and 29 was nothing but a tax and no such tax was permissible under Entries 45 to 63 of List II of the Seventh Schedule to the Constitution and that it was not excise duty within the meaning of Entry 51 or a fee under Entry 66. It has also been argued that En try 8 embodying the Police powers of the State could not be invoked to sustain such an imposition. Mr. Bhagat has also argued that the collection was in the nature of a tax and section 29 was therefore ultra vires the Constitution. Mr. Bhagat has also urged that the State was not the owner of the exclusive privilege to manufacture or sell liquor and that the Act did not empower it to part with that right on payment. We have given our reasons already for taking a contrary view, with reference to the decisions in Nashirwars case and Har Shankars case. The State has the exclusive right or privilege to manufacture, store and sell liquor and to grant that right to its license holders on payment of consideration, with such conditions and restrictions for its regulation as may be necessary in the public interest. The argument to the contrary is futile and is rejected.It has been argued by Mr. Agarwal that although the Amending Act of 1970 (Act 17 of 1970) was enacted for the purpose of getting over the High Courts declaration in O.J.C.No. 357 of 1970 that rule 103 of the Boards Excise Rules, 1965, in so far as it directs that fees for license for the retail vend of excisable articles shall be fixed by auction, was ultra vires the Act, rule 103 continued to remain invalid even after the promulgation of that Act because. such a rule could not be made under section 90(7) of the Act. Counsel has argued that as the rule was in- valid, it was not permissible to hold the impugned public auction because that was not permissible under any other provision of the Act. This argument is also futile because section 5 of the Bihar and Orissa Excise (Second Orissa Amendment) Act , 1971 (Act 10 of 1971) has substituted a new sub-section (2) for the old sub-section as follows, providing for auction, and it has been stated that it shall be "deemed always to have been substituted".-"(2) The sum payable under sub-section (1) shall be determined as follows, -(a) by auction or by calling tenders or otherwise as the State Government may, in the interest of excise revenue by general or special order direct."17. Then follow other clauses with which we are not concerned. Moreover section 17 of that Act has validated all grants mad e by way of licenses for manufacture and retail sale of country liquor in respect of any place on or after the 7th day of August, 1965, on which date the Boards Excise Rules (including rule 103) admittedly came into force. In this view of the matter, it is not necessary for us to examine the other arguments of Mr. Agarwal Which have been adopted by Mr. Bhagat regarding the invalidity of rule 103. It is not necessary to deal s eparately with the judgment of the High Court dated April 16, 1971 in O.J.C. No. 242 of 1967, which has given rise to civil appeal No. 2071 of 1972, or with its decision dated May 7, 1971 in O.J.Cs. No. 1185-1190, 1223, . 1224 and 1226 of 1970 (which has given rise to civil appeals Nos. 1855-1863 of 1972 and cross-appeals Nos. 351-359 of 1972) because they are based on the aforesaid decision dated April 16, 1971 in O.J.C. No. 786 of 1970. So also, it is not necessary to deal separately with the decision dated September 6, 1971 in O.J.C.No. 859 of 1970 and 863 of 1970 which have given rise to civil appeals Nos. 1235 and 1236 of 1972, for the same reason .This takes us to the judgment of the High Court dated March 28, 1974 in O.J.C.No.589 of 1972 which has given rise to civil appeal No. 1802 of 1974. That decision is based on the decision dated January 3, 1974 in O. J.C.No. 1036 of 1971. The petitioner in that case was a licensee for the retail sale of country liquor in Mayurbhanj district. He challenged the vires of sections 22 and 29 of the Act and claimed that the monthly consideration for the license was not due from him and that he was entitled to a refund of the money already paid by him. The High Court followed that decision and dismissed the writ petition. In doing so it relied on its decision dated April 16, 1971 in Siba Prasad Saha v. State of Orissa and other (I.L.R. 1971 Cuttack 777) and the decision of this Court in Jaiswals case (supra) and dismissed the petition. We have al ready dealt with the points which arise for consideration in this case while examining the earlier cases and we see nothing wrong with the impugned judgment of the High Court by which the writ petition has been dismissed.18. | 1[ds]We do not think that what the High Court held to be an "acceptance of the bid" at the "auction", even after the announcement of an express condition attached to it that the knocking down of the bid would not really be an acceptance of it by the Government, could be an acceptance of the bid at all. In the peculiar facts and circumstances of the auction, the bids were, apparently, nothing more than offers in response to invitation to make tenders, and such auctions were the mode of ascertaining the highest offers. The basic conditions for the emergence of rights through offers or conditions made and accepted, and acted upon, by paying any specified or agree d price as consideration, were thus wanting in this case. In fact the express and advertised terms of the auction made it clear that the money tendered was to be deemed to be deposited tentatively, pending the acceptance of the bid. So what we have before us are neither offers nor acceptance by the Government. There were only offers by the bidders to purchase the rights, subject expressly to their acceptance or rejectio n by the State Government. The essentials of any agreement and the mutuality of obligations were thus absent altogether.Moreover it was not an ordinary auction where binding agreement could be deemed to be concluded at the fall of the hammer, creating mutually enforceable obligations. Those were only so called auctions, adopted as means for ascertaining the highest offers for the exclusive privileges which the Govern ment alone could grant for carrying on a trade or business. considered noxious, under the law and which, because of its special character, could be regulated in any way, or even prohibited altogether, by the Govern- ment. This special character of the trade or business would appear from the power of the State Government to grant the exclusive privilege to. carry on trade in the manufacture and sale offollow other clauses with which we are not concerned. Moreover section 17 of that Act has validated all grants mad e by way of licenses for manufacture and retail sale of country liquor in respect of any place on or after the 7th day of August, 1965, on which date the Boards Excise Rules (including rule 103) admittedly came into force. In this view of the matter, it is not necessary for us to examine the other arguments of Mr. Agarwal Which have been adopted by Mr. Bhagat regarding the invalidity of rule 103. It is not necessary to deal s eparately with the judgment of the High Court dated April 16, 1971 in O.J.C. No. 242 of 1967, which has given rise to civil appeal No. 2071 of 1972, or with its decision dated May 7, 1971 in O.J.Cs. No. 1185-1190, 1223, . 1224 and 1226 of 1970 (which has given rise to civil appeals Nos. 1855-1863 of 1972 and cross-appeals Nos. 351-359 of 1972) because they are based on the aforesaid decision dated April 16, 1971 in O.J.C. No. 786 of 1970. So also, it is not necessary to deal separately with the decision dated September 6, 1971 in O.J.C.No. 859 of 1970 and 863 of 1970 which have given rise to civil appeals Nos. 1235 and 1236 of 1972, for the same reason .This takes us to the judgment of the High Court dated March 28, 1974 in O.J.C.No.589 of 1972 which has given rise to civil appeal No. 1802 of 1974. That decision is based on the decision dated January 3, 1974 in O. J.C.No. 1036 of 1971. The petitioner in that case was a licensee for the retail sale of country liquor in Mayurbhanj district. He challenged the vires of sections 22 and 29 of the Act and claimed that the monthly consideration for the license was not due from him and that he was entitled to a refund of the money already paid by him. The High Court followed that decision and dismissed the writ petition. In doing so it relied on its decision dated April 16, 1971 in Siba Prasad Saha v. State of Orissa and other (I.L.R. 1971 Cuttack 777) and the decision of this Court in Jaiswals case (supra) and dismissed the petition. We have al ready dealt with the points which arise for consideration in this case while examining the earlier cases and we see nothing wrong with the impugned judgment of the High Court by which the writ petition has been dismissed. | 1 | 7,056 | 831 | ### 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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held that as sections 2 to 5 of the Amending Act of 1970 were not made retrospective in operation, the effect of section 6 amounted to a direction by the Legislature to the State to disregard the decision in Ajodhya Prasads case that the amount realised by auction was illegal and that section 6 was therefore ultra vires the powers of the Legislature. It will be sufficient to say in this connection that the Bihar and Orissa Excise (Second Orissa Amendment) Act, 1971 (Act 10 of 1971) has made good the deficiency, if any, by stating that the amending provisions shall be deemed always to have been so added or inserted or substituted. In this respect also, the impugned judgment of the High Court must be rectified.16. Mr. S.C. Agarwal has argued that the amount realised by the State for grant of the exclusive privilege under sections 22 and 29 was nothing but a tax and no such tax was permissible under Entries 45 to 63 of List II of the Seventh Schedule to the Constitution and that it was not excise duty within the meaning of Entry 51 or a fee under Entry 66. It has also been argued that En try 8 embodying the Police powers of the State could not be invoked to sustain such an imposition. Mr. Bhagat has also argued that the collection was in the nature of a tax and section 29 was therefore ultra vires the Constitution. Mr. Bhagat has also urged that the State was not the owner of the exclusive privilege to manufacture or sell liquor and that the Act did not empower it to part with that right on payment. We have given our reasons already for taking a contrary view, with reference to the decisions in Nashirwars case and Har Shankars case. The State has the exclusive right or privilege to manufacture, store and sell liquor and to grant that right to its license holders on payment of consideration, with such conditions and restrictions for its regulation as may be necessary in the public interest. The argument to the contrary is futile and is rejected.It has been argued by Mr. Agarwal that although the Amending Act of 1970 (Act 17 of 1970) was enacted for the purpose of getting over the High Courts declaration in O.J.C.No. 357 of 1970 that rule 103 of the Boards Excise Rules, 1965, in so far as it directs that fees for license for the retail vend of excisable articles shall be fixed by auction, was ultra vires the Act, rule 103 continued to remain invalid even after the promulgation of that Act because. such a rule could not be made under section 90(7) of the Act. Counsel has argued that as the rule was in- valid, it was not permissible to hold the impugned public auction because that was not permissible under any other provision of the Act. This argument is also futile because section 5 of the Bihar and Orissa Excise (Second Orissa Amendment) Act , 1971 (Act 10 of 1971) has substituted a new sub-section (2) for the old sub-section as follows, providing for auction, and it has been stated that it shall be "deemed always to have been substituted".-"(2) The sum payable under sub-section (1) shall be determined as follows, -(a) by auction or by calling tenders or otherwise as the State Government may, in the interest of excise revenue by general or special order direct."17. Then follow other clauses with which we are not concerned. Moreover section 17 of that Act has validated all grants mad e by way of licenses for manufacture and retail sale of country liquor in respect of any place on or after the 7th day of August, 1965, on which date the Boards Excise Rules (including rule 103) admittedly came into force. In this view of the matter, it is not necessary for us to examine the other arguments of Mr. Agarwal Which have been adopted by Mr. Bhagat regarding the invalidity of rule 103. It is not necessary to deal s eparately with the judgment of the High Court dated April 16, 1971 in O.J.C. No. 242 of 1967, which has given rise to civil appeal No. 2071 of 1972, or with its decision dated May 7, 1971 in O.J.Cs. No. 1185-1190, 1223, . 1224 and 1226 of 1970 (which has given rise to civil appeals Nos. 1855-1863 of 1972 and cross-appeals Nos. 351-359 of 1972) because they are based on the aforesaid decision dated April 16, 1971 in O.J.C. No. 786 of 1970. So also, it is not necessary to deal separately with the decision dated September 6, 1971 in O.J.C.No. 859 of 1970 and 863 of 1970 which have given rise to civil appeals Nos. 1235 and 1236 of 1972, for the same reason .This takes us to the judgment of the High Court dated March 28, 1974 in O.J.C.No.589 of 1972 which has given rise to civil appeal No. 1802 of 1974. That decision is based on the decision dated January 3, 1974 in O. J.C.No. 1036 of 1971. The petitioner in that case was a licensee for the retail sale of country liquor in Mayurbhanj district. He challenged the vires of sections 22 and 29 of the Act and claimed that the monthly consideration for the license was not due from him and that he was entitled to a refund of the money already paid by him. The High Court followed that decision and dismissed the writ petition. In doing so it relied on its decision dated April 16, 1971 in Siba Prasad Saha v. State of Orissa and other (I.L.R. 1971 Cuttack 777) and the decision of this Court in Jaiswals case (supra) and dismissed the petition. We have al ready dealt with the points which arise for consideration in this case while examining the earlier cases and we see nothing wrong with the impugned judgment of the High Court by which the writ petition has been dismissed.18.
### Response:
1
### Explanation:
We do not think that what the High Court held to be an "acceptance of the bid" at the "auction", even after the announcement of an express condition attached to it that the knocking down of the bid would not really be an acceptance of it by the Government, could be an acceptance of the bid at all. In the peculiar facts and circumstances of the auction, the bids were, apparently, nothing more than offers in response to invitation to make tenders, and such auctions were the mode of ascertaining the highest offers. The basic conditions for the emergence of rights through offers or conditions made and accepted, and acted upon, by paying any specified or agree d price as consideration, were thus wanting in this case. In fact the express and advertised terms of the auction made it clear that the money tendered was to be deemed to be deposited tentatively, pending the acceptance of the bid. So what we have before us are neither offers nor acceptance by the Government. There were only offers by the bidders to purchase the rights, subject expressly to their acceptance or rejectio n by the State Government. The essentials of any agreement and the mutuality of obligations were thus absent altogether.Moreover it was not an ordinary auction where binding agreement could be deemed to be concluded at the fall of the hammer, creating mutually enforceable obligations. Those were only so called auctions, adopted as means for ascertaining the highest offers for the exclusive privileges which the Govern ment alone could grant for carrying on a trade or business. considered noxious, under the law and which, because of its special character, could be regulated in any way, or even prohibited altogether, by the Govern- ment. This special character of the trade or business would appear from the power of the State Government to grant the exclusive privilege to. carry on trade in the manufacture and sale offollow other clauses with which we are not concerned. Moreover section 17 of that Act has validated all grants mad e by way of licenses for manufacture and retail sale of country liquor in respect of any place on or after the 7th day of August, 1965, on which date the Boards Excise Rules (including rule 103) admittedly came into force. In this view of the matter, it is not necessary for us to examine the other arguments of Mr. Agarwal Which have been adopted by Mr. Bhagat regarding the invalidity of rule 103. It is not necessary to deal s eparately with the judgment of the High Court dated April 16, 1971 in O.J.C. No. 242 of 1967, which has given rise to civil appeal No. 2071 of 1972, or with its decision dated May 7, 1971 in O.J.Cs. No. 1185-1190, 1223, . 1224 and 1226 of 1970 (which has given rise to civil appeals Nos. 1855-1863 of 1972 and cross-appeals Nos. 351-359 of 1972) because they are based on the aforesaid decision dated April 16, 1971 in O.J.C. No. 786 of 1970. So also, it is not necessary to deal separately with the decision dated September 6, 1971 in O.J.C.No. 859 of 1970 and 863 of 1970 which have given rise to civil appeals Nos. 1235 and 1236 of 1972, for the same reason .This takes us to the judgment of the High Court dated March 28, 1974 in O.J.C.No.589 of 1972 which has given rise to civil appeal No. 1802 of 1974. That decision is based on the decision dated January 3, 1974 in O. J.C.No. 1036 of 1971. The petitioner in that case was a licensee for the retail sale of country liquor in Mayurbhanj district. He challenged the vires of sections 22 and 29 of the Act and claimed that the monthly consideration for the license was not due from him and that he was entitled to a refund of the money already paid by him. The High Court followed that decision and dismissed the writ petition. In doing so it relied on its decision dated April 16, 1971 in Siba Prasad Saha v. State of Orissa and other (I.L.R. 1971 Cuttack 777) and the decision of this Court in Jaiswals case (supra) and dismissed the petition. We have al ready dealt with the points which arise for consideration in this case while examining the earlier cases and we see nothing wrong with the impugned judgment of the High Court by which the writ petition has been dismissed.
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SUNIL KUMAR BISWAS Vs. ORDINANCE FACTORY BOARD | Abhay Manohar Sapre, J 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 16.07.2015 passed by the High Court at Calcutta in WPCT No.82 of 2015 whereby the High Court dismissed the writ petition filed by the appellant and respondent Nos.4 -6 herein. 3. A few facts need mention hereinbelow for the disposal of the appeal, which involved a short point. 4. The appellant and respondent Nos.4 -6 herein approached the Central Administrative Tribunal (CAT), Calcutta against respondent Nos.1 -3 (Ordinance Factory Board & Ors.) in OA No. 159 of 2013 praying therein for a relief that they have been appointed by the Contractor to render their services with the Ordinance Factory Board (respondent No.1 herein) which they have been doing from the last 25 years, therefore, they claimed a relief that their services be regularized. 5. The Tribunal, by order dated 23.05.2013, dismissed the OA filed by the appellant and respondent Nos.4 -6 which gave rise to filing of the writ petition by them before the High Court at Calcutta. 6. By impugned order, the High Court dismissed the writ petition and held that the remedy of the appellant and respondent Nos. 4 -6 lies in approaching the Central Government in making a reference to the Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947(hereinafter referred to as ID Act). It is against this dismissal of the writ petition, the unsuccessful writ petitioners felt aggrieved and have filed this appeal by way of special leave in this Court. 7. So, the short question, which arises for consideration in this appeal, is whether the Tribunal and the High Court were justified in dismissing the OA and writ petition. 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 9. In our opinion, the High Court was right in observing that the remedy of the appellant and respondent Nos.4 -6 herein (writ petitioners) lies in applying to the Central Government to make an industrial reference to the Industrial Tribunal under Section 10 of the ID Act in relation to the dispute which has arisen between them but not to pursue their remedy for adjudication of their grievance by filing OA before the Tribunal or/and writ petition in the High Court. 10. Having regard to the nature of the controversy raised by the appellant and respondent Nos.4-6, we are also of the considered view that their remedy lies in getting their alleged dispute settled by the Industrial Tribunal in a reference under Section 10 of ID Act. 11. The reason is that such disputes once made are required to be adjudicated on facts and the evidence. The factual controversy cannot be adjudicated in OA by the Tribunal or by the High Court in a writ petition. 12. We, therefore, find no good ground to take any other view than the one taken by the High Court while declining to entertain the writ petition 13. Needless to say, if the reference is eventually made to the Industrial Tribunal at the instance of the appellant and respondent Nos.4 -6 by the Central Government on their request under Section 10 of the ID Act and issue in question is gone into on facts, the same shall then be decided strictly in accordance with law by the Industrial Tribunal uninfluenced by any observations made by the Tribunal, the High Court and this Court in these proceedings. | 0[ds]8. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal9. In our opinion, the High Court was right in observing that the remedy of the appellant and respondent Nos.4 -6 herein (writ petitioners) lies in applying to the Central Government to make an industrial reference to the Industrial Tribunal under Section 10 of the ID Act in relation to the dispute which has arisen between them but not to pursue their remedy for adjudication of their grievance by filing OA before the Tribunal or/and writ petition in the High Court10. Having regard to the nature of the controversy raised by the appellant and respondent Nos.4-6, we are also of the considered view that their remedy lies in getting their alleged dispute settled by the Industrial Tribunal in a reference under Section 10 of ID Act11. The reason is that such disputes once made are required to be adjudicated on facts and the evidence. The factual controversy cannot be adjudicated in OA by the Tribunal or by the High Court in a writ petition12. We, therefore, find no good ground to take any other view than the one taken by the High Court while declining to entertain the writ petition13. Needless to say, if the reference is eventually made to the Industrial Tribunal at the instance of the appellant and respondent Nos.4 -6 by the Central Government on their request under Section 10 of the ID Act and issue in question is gone into on facts, the same shall then be decided strictly in accordance with law by the Industrial Tribunal uninfluenced by any observations made by the Tribunal, the High Court and this Court in these proceedings. | 0 | 646 | 315 | ### Instruction:
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Abhay Manohar Sapre, J 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 16.07.2015 passed by the High Court at Calcutta in WPCT No.82 of 2015 whereby the High Court dismissed the writ petition filed by the appellant and respondent Nos.4 -6 herein. 3. A few facts need mention hereinbelow for the disposal of the appeal, which involved a short point. 4. The appellant and respondent Nos.4 -6 herein approached the Central Administrative Tribunal (CAT), Calcutta against respondent Nos.1 -3 (Ordinance Factory Board & Ors.) in OA No. 159 of 2013 praying therein for a relief that they have been appointed by the Contractor to render their services with the Ordinance Factory Board (respondent No.1 herein) which they have been doing from the last 25 years, therefore, they claimed a relief that their services be regularized. 5. The Tribunal, by order dated 23.05.2013, dismissed the OA filed by the appellant and respondent Nos.4 -6 which gave rise to filing of the writ petition by them before the High Court at Calcutta. 6. By impugned order, the High Court dismissed the writ petition and held that the remedy of the appellant and respondent Nos. 4 -6 lies in approaching the Central Government in making a reference to the Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947(hereinafter referred to as ID Act). It is against this dismissal of the writ petition, the unsuccessful writ petitioners felt aggrieved and have filed this appeal by way of special leave in this Court. 7. So, the short question, which arises for consideration in this appeal, is whether the Tribunal and the High Court were justified in dismissing the OA and writ petition. 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 9. In our opinion, the High Court was right in observing that the remedy of the appellant and respondent Nos.4 -6 herein (writ petitioners) lies in applying to the Central Government to make an industrial reference to the Industrial Tribunal under Section 10 of the ID Act in relation to the dispute which has arisen between them but not to pursue their remedy for adjudication of their grievance by filing OA before the Tribunal or/and writ petition in the High Court. 10. Having regard to the nature of the controversy raised by the appellant and respondent Nos.4-6, we are also of the considered view that their remedy lies in getting their alleged dispute settled by the Industrial Tribunal in a reference under Section 10 of ID Act. 11. The reason is that such disputes once made are required to be adjudicated on facts and the evidence. The factual controversy cannot be adjudicated in OA by the Tribunal or by the High Court in a writ petition. 12. We, therefore, find no good ground to take any other view than the one taken by the High Court while declining to entertain the writ petition 13. Needless to say, if the reference is eventually made to the Industrial Tribunal at the instance of the appellant and respondent Nos.4 -6 by the Central Government on their request under Section 10 of the ID Act and issue in question is gone into on facts, the same shall then be decided strictly in accordance with law by the Industrial Tribunal uninfluenced by any observations made by the Tribunal, the High Court and this Court in these proceedings.
### Response:
0
### Explanation:
8. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal9. In our opinion, the High Court was right in observing that the remedy of the appellant and respondent Nos.4 -6 herein (writ petitioners) lies in applying to the Central Government to make an industrial reference to the Industrial Tribunal under Section 10 of the ID Act in relation to the dispute which has arisen between them but not to pursue their remedy for adjudication of their grievance by filing OA before the Tribunal or/and writ petition in the High Court10. Having regard to the nature of the controversy raised by the appellant and respondent Nos.4-6, we are also of the considered view that their remedy lies in getting their alleged dispute settled by the Industrial Tribunal in a reference under Section 10 of ID Act11. The reason is that such disputes once made are required to be adjudicated on facts and the evidence. The factual controversy cannot be adjudicated in OA by the Tribunal or by the High Court in a writ petition12. We, therefore, find no good ground to take any other view than the one taken by the High Court while declining to entertain the writ petition13. Needless to say, if the reference is eventually made to the Industrial Tribunal at the instance of the appellant and respondent Nos.4 -6 by the Central Government on their request under Section 10 of the ID Act and issue in question is gone into on facts, the same shall then be decided strictly in accordance with law by the Industrial Tribunal uninfluenced by any observations made by the Tribunal, the High Court and this Court in these proceedings.
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UNION OF INDIA Vs. LT. COL OM DUTT SHARMA (RETD)DEAD THR. LRS | application and is not applicable to the other civil pensioners of the Union. Admittedly, none of the respondents are in receipt of the pension from Defence but were granted pension by the Department of Posts. 21. We do not find merit in the argument that the benefit of OROP is not extended to certain category of pensioners as mentioned in para 4.1 of the Circular dated 7 th November 2015 only. Therefore, the pensioners of APS having not been excluded in such Circular, would be covered by the decision to grant OROP . Such circular excludes only those pensioners who are in receipt of pension for the services rendered in the armed forces of the country or the armed forces prior to the Independence of the Country or the forces which are getting pension for the reason that they were members of the State forces at the time of merger of the States with Indian Union after independence. Such exclusion is of distinct category who are pensioners of the Army at some stage but have no relation with the pensioners of defence forces as on 1 st July 2014. There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces. 22. The reliance of Mr. Ahmadi on 1979 Rules wherein the Ex- servicemen have been defined to include the members of APS, is again not tenable. Such Rules are applicable for the purpose of recruitment to certain posts in the Central Civil Services. The wide definition and purport of the Rules is to provide reservation for Ex- servicemen for the purpose of employment in the civil administration. Such provision is not of general application so as to extend the meaning assigned in a particular rule to another set of Instructions. Similarly, the Circular dated 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd February, 2016 were addressed to the Chiefs of the Armed Forces in respect of the pensioners of the forces which is evident from clause 4 of the Circular dated 3 rd February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers. 23. The respondents were holders of Temporary Commission only to fa- cilitate the grant of rank and other benefits but they cannot be called as Commissioned Officers. Even the argument that the members of Territorial Army have been granted benefit of OROP is again not tenable for the reason that the Territorial Army is gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions as they exist rather than to expand the scope of Circulars when such benefits were not conferred on the members of APS. 24. This Court in a judgement reported as Major M.R. Penghal v. Union of India (1998) 5 SCC 454 examined somewhat similar question but in different context. In that case, a clerk of the Department of Posts was promoted as Major in the APS. He initially sought voluntary retirement from the Department of Posts but subsequently sought to withdraw his such request. The question was as to whether the appellant therein can invoke jurisdiction of the Central Administrative Tribunal or the High Court, it being a case prior to the enactment of Armed Forced Tribunal Act 2007. This Court held as under: -"9. As stated above, although the appellant was selected by the Postal Department for appointment to the post of clerk, but he could not be given any appointment due to want of vacancy in the unit of his choice. Under such circumstances, the appellant was offered an appointment to work as a clerk in the Army Postal Service on the condition that he would remain a civilian employee on deputation in the Army. The appellant accepted the aforesaid offer and agreed to the conditions that he would revert to the civil appointment in Posts and Telegraphs Department on his release from the Indian Army Postal Service. With these conditions, the appellant continued to serve in the Army as a permanent employee of the Posts and T elegraphs Department on deputation and was promoted up to the rank of a Major in the Indian Army. However, the appellant was only given a temporary commission and he worked as such till the date when his relinquishment was ordered. The aforesaid facts clearly demonstrate that the appellant has a lien with the Posts and T elegraphs Department working on deputation in the Indian Army Postal Service and at no point of time the appellant became a full-fledged army personnel. Since the appellant was not a member of the Armed Forces and continued to work as a civilian on deputation to the Army Postal Service, his case was covered under Section 14(1) (a) of the Administrative Tribunals Act. In that view of the matter, the High Court was right in rejecting the writ petition filed by the appellant, whereas the Central Administrative Tribunal erroneously accepted the claim of the appellant that he is an army personnel………..." 25. Another undisputed fact that the respondents have retired from service corresponding to the age of the retirement of the Department of Posts i.e. 58 years or 60 years. It is not disputed that retirement age of a regular Commissioned Officer of the rank of Lt. Colonel is 54 years. Such fact only shows that the respondents are the holders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred. If the respondents are to be accepted as members of the Armed Forces in respect of retrial benefits, they would have been made to retire at the age of 54 years i.e. the age of the superannuation of the personnel of the Armed Forces in the rank of Lt. Colonel. | 1[ds]The JCOs of Armed Forces and Warrant Officers who have passed IPO/IRM examination of Posts & Telegraph Department are eligible for the grant of Commission for a period of one year and for such period, their service may be required. The Commission under such instructions was meant for Junior Commissioned Officers and the Warrant Officers who have passed examination of the Department of Posts for Commission which is for a period of one year and as long services are required. Thus, the officials of the Department of Posts continue to have lien over the posts under the Union12. The next Army Instructions 1959 supersede the earlier Army Instructions in so far as they relate to the grant of the Commission to the Gazetted Officers of the Posts & Telegraph Department. The eligibility for grant of Temporary Commission was in respect of the Gazetted Officers, (substantive or officiating) of the Posts & Telegraph Department. In terms of Clause 12 of the Army Instructions 1959, all officers of the Posts & Telegraph Department, which will include Non-Gazetted Offices, were given an option to opt for terms and conditions contained in Annexure ‘A? to these Instructions. On exercise of such option, they will be regarded as newly commissioned officers with an option to draw civil or military rates of pay. In respect of pension, there is no option and that the officers would be governed by civil rules for service pension13. As per Army Instructions 1985, the eligibility for grant of Temporary Commission in the APS is Gazetted Officers (substantive or officiating) of the Department of Posts and JCOs of the APS and such WOs who have earned competitive vacancies in the Rank of JAOs/IPOs/IRMs in examination of the Department of Posts. Clause 12 of such instructions gives an option to all officers which will include the Gazetted and Non-Gazetted Officers of the Department of Posts serving in the APS to opt for the terms and conditions contained in Annexure ‘A? to these instructions. On exercise of such instructions, they will be regarded as newly commissioned for the purpose of option to draw civil or military rates of pay. Such Annexure ‘A? to the Instructions again has a clause that the officers will be governed by civil rules for service pension. There is no option to opt for military pension14. Therefore, we do not find any merit in the argument raised that Army Instructions only cover the Gazetted Officers. The eligibility for grant of a Temporary Commission is the Gazetted Officers and JCOs etc. but clause 12 of Army Instructions 1959 and 1985 cover all officers of the Department of Posts. It is not the case of the respondents that their lien in the Department of Posts was ever terminated15. The argument that the respondents were drawing more pension than their counterparts in the Department of Posts, therefore, they are entitled to the periodical increase of pension on the parity of the personnel of the Armed Forces, is not tenable. The respondents have discharged their duties as per Army Instructions issued from time to time. If they have drawn higher salaries while working in the APS than other counterparts in the Department of Posts that will not make them at par with the members of the Armed Forces. Their birth mark is with the Department of Posts which mark was never removed, when they were serving as members of APS. The Instructions provided for an option on promotion on every rank in the Army to draw either military pay and allowances or civil pay plus deputation allowances meaning thereby that they continue to hold their lien on the civil posts in the Department of Posts. Since they hold a lien in the Department of Posts they could be recalled by the Department of Posts as well as they could seek reversion to their parent Department18. In the first Army Instructions issued in the year 1953, there is no specific clause pertaining to pension but for disability and family pension, an option is given to opt for military or civil rules governed by Chapter XXXVIII of Civil Service Regulations. The service element of disability is contemplated on service share basis at the time of eventual retirement from the service. Such Instructions were superseded in 1959 and it was those Instructions or later Army Instructions of 1985 which were in force when the respondents joined APS19. Such Instructions clearly stipulate that the pension to the members of APS will be as per civil rules. Such Instructions also contemplate that at every stage of promotion in APS, an option is available to the officer to choose military pay or the civil pay. These conditions show that the members of the APS continue to hold lien in the Department of Posts though they were conferred ranks in the Army and were also entitled to certain benefits as the members of the Armed Forces but being members of the Armed Forces during the period of their Temporary Commission does not make them a pensioner of the Armed Forces as contemplated in the Circular dated 7 th November, 201520. The said Circular confers benefit of OROP upon Ex-servicemen, whereas the subsequent Circular dated 3 rd February, 2016 grants benefit of OROP to all pensioners in the rank of Commissioned Officers and honorary Commissioned Officers etc. who are in receipt of pension or family pension as on 1 st July, 2014. This Circular, as explained by Circular dated 7 th February 2016 is applicable only to personnel who are drawing pension from the Defence Establishments as the said Circular is addressed to the Chiefs of three armed forces of the country including personnel from Territorial Army. Such Circular has limited application and is not applicable to the other civil pensioners of the Union. Admittedly, none of the respondents are in receipt of the pension from Defence but were granted pension by the Department of Posts21. We do not find merit in the argument that the benefit of OROP is not extended to certain category of pensioners as mentioned in para 4.1 of the Circular dated 7 th November 2015 only. Therefore, the pensioners of APS having not been excluded in such Circular, would be covered by the decision to grant OROP . Such circular excludes only those pensioners who are in receipt of pension for the services rendered in the armed forces of the country or the armed forces prior to the Independence of the Country or the forces which are getting pension for the reason that they were members of the State forces at the time of merger of the States with Indian Union after independence. Such exclusion is of distinct category who are pensioners of the Army at some stage but have no relation with the pensioners of defence forces as on 1 st July 2014. There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces22. The reliance of Mr. Ahmadi on 1979 Rules wherein the Ex- servicemen have been defined to include the members of APS, is again not tenable. Such Rules are applicable for the purpose of recruitment to certain posts in the Central Civil Services. The wide definition and purport of the Rules is to provide reservation for Ex- servicemen for the purpose of employment in the civil administration. Such provision is not of general application so as to extend the meaning assigned in a particular rule to another set of Instructions. Similarly, the Circular dated 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd February, 2016 were addressed to the Chiefs of the Armed Forces in respect of the pensioners of the forces which is evident from clause 4 of the Circular dated 3 rd February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers23. The respondents were holders of Temporary Commission only to fa- cilitate the grant of rank and other benefits but they cannot be called as Commissioned Officers. Even the argument that the members of Territorial Army have been granted benefit of OROP is again not tenable for the reason that the Territorial Army is gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions as they exist rather than to expand the scope of Circulars when such benefits were not conferred on the members of APS25. Another undisputed fact that the respondents have retired from service corresponding to the age of the retirement of the Department of Posts i.e. 58 years or 60 years. It is not disputed that retirement age of a regular Commissioned Officer of the rank of Lt. Colonel is 54 years. Such fact only shows that the respondents are the holders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred. If the respondents are to be accepted as members of the Armed Forces in respect of retrial benefits, they would have been made to retire at the age of 54 years i.e. the age of the superannuation of the personnel of the Armed Forces in the rank of Lt. Colonel. | 1 | 5,633 | 1,668 | ### 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:
application and is not applicable to the other civil pensioners of the Union. Admittedly, none of the respondents are in receipt of the pension from Defence but were granted pension by the Department of Posts. 21. We do not find merit in the argument that the benefit of OROP is not extended to certain category of pensioners as mentioned in para 4.1 of the Circular dated 7 th November 2015 only. Therefore, the pensioners of APS having not been excluded in such Circular, would be covered by the decision to grant OROP . Such circular excludes only those pensioners who are in receipt of pension for the services rendered in the armed forces of the country or the armed forces prior to the Independence of the Country or the forces which are getting pension for the reason that they were members of the State forces at the time of merger of the States with Indian Union after independence. Such exclusion is of distinct category who are pensioners of the Army at some stage but have no relation with the pensioners of defence forces as on 1 st July 2014. There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces. 22. The reliance of Mr. Ahmadi on 1979 Rules wherein the Ex- servicemen have been defined to include the members of APS, is again not tenable. Such Rules are applicable for the purpose of recruitment to certain posts in the Central Civil Services. The wide definition and purport of the Rules is to provide reservation for Ex- servicemen for the purpose of employment in the civil administration. Such provision is not of general application so as to extend the meaning assigned in a particular rule to another set of Instructions. Similarly, the Circular dated 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd February, 2016 were addressed to the Chiefs of the Armed Forces in respect of the pensioners of the forces which is evident from clause 4 of the Circular dated 3 rd February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers. 23. The respondents were holders of Temporary Commission only to fa- cilitate the grant of rank and other benefits but they cannot be called as Commissioned Officers. Even the argument that the members of Territorial Army have been granted benefit of OROP is again not tenable for the reason that the Territorial Army is gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions as they exist rather than to expand the scope of Circulars when such benefits were not conferred on the members of APS. 24. This Court in a judgement reported as Major M.R. Penghal v. Union of India (1998) 5 SCC 454 examined somewhat similar question but in different context. In that case, a clerk of the Department of Posts was promoted as Major in the APS. He initially sought voluntary retirement from the Department of Posts but subsequently sought to withdraw his such request. The question was as to whether the appellant therein can invoke jurisdiction of the Central Administrative Tribunal or the High Court, it being a case prior to the enactment of Armed Forced Tribunal Act 2007. This Court held as under: -"9. As stated above, although the appellant was selected by the Postal Department for appointment to the post of clerk, but he could not be given any appointment due to want of vacancy in the unit of his choice. Under such circumstances, the appellant was offered an appointment to work as a clerk in the Army Postal Service on the condition that he would remain a civilian employee on deputation in the Army. The appellant accepted the aforesaid offer and agreed to the conditions that he would revert to the civil appointment in Posts and Telegraphs Department on his release from the Indian Army Postal Service. With these conditions, the appellant continued to serve in the Army as a permanent employee of the Posts and T elegraphs Department on deputation and was promoted up to the rank of a Major in the Indian Army. However, the appellant was only given a temporary commission and he worked as such till the date when his relinquishment was ordered. The aforesaid facts clearly demonstrate that the appellant has a lien with the Posts and T elegraphs Department working on deputation in the Indian Army Postal Service and at no point of time the appellant became a full-fledged army personnel. Since the appellant was not a member of the Armed Forces and continued to work as a civilian on deputation to the Army Postal Service, his case was covered under Section 14(1) (a) of the Administrative Tribunals Act. In that view of the matter, the High Court was right in rejecting the writ petition filed by the appellant, whereas the Central Administrative Tribunal erroneously accepted the claim of the appellant that he is an army personnel………..." 25. Another undisputed fact that the respondents have retired from service corresponding to the age of the retirement of the Department of Posts i.e. 58 years or 60 years. It is not disputed that retirement age of a regular Commissioned Officer of the rank of Lt. Colonel is 54 years. Such fact only shows that the respondents are the holders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred. If the respondents are to be accepted as members of the Armed Forces in respect of retrial benefits, they would have been made to retire at the age of 54 years i.e. the age of the superannuation of the personnel of the Armed Forces in the rank of Lt. Colonel.
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### Explanation:
serving as members of APS. The Instructions provided for an option on promotion on every rank in the Army to draw either military pay and allowances or civil pay plus deputation allowances meaning thereby that they continue to hold their lien on the civil posts in the Department of Posts. Since they hold a lien in the Department of Posts they could be recalled by the Department of Posts as well as they could seek reversion to their parent Department18. In the first Army Instructions issued in the year 1953, there is no specific clause pertaining to pension but for disability and family pension, an option is given to opt for military or civil rules governed by Chapter XXXVIII of Civil Service Regulations. The service element of disability is contemplated on service share basis at the time of eventual retirement from the service. Such Instructions were superseded in 1959 and it was those Instructions or later Army Instructions of 1985 which were in force when the respondents joined APS19. Such Instructions clearly stipulate that the pension to the members of APS will be as per civil rules. Such Instructions also contemplate that at every stage of promotion in APS, an option is available to the officer to choose military pay or the civil pay. These conditions show that the members of the APS continue to hold lien in the Department of Posts though they were conferred ranks in the Army and were also entitled to certain benefits as the members of the Armed Forces but being members of the Armed Forces during the period of their Temporary Commission does not make them a pensioner of the Armed Forces as contemplated in the Circular dated 7 th November, 201520. The said Circular confers benefit of OROP upon Ex-servicemen, whereas the subsequent Circular dated 3 rd February, 2016 grants benefit of OROP to all pensioners in the rank of Commissioned Officers and honorary Commissioned Officers etc. who are in receipt of pension or family pension as on 1 st July, 2014. This Circular, as explained by Circular dated 7 th February 2016 is applicable only to personnel who are drawing pension from the Defence Establishments as the said Circular is addressed to the Chiefs of three armed forces of the country including personnel from Territorial Army. Such Circular has limited application and is not applicable to the other civil pensioners of the Union. Admittedly, none of the respondents are in receipt of the pension from Defence but were granted pension by the Department of Posts21. We do not find merit in the argument that the benefit of OROP is not extended to certain category of pensioners as mentioned in para 4.1 of the Circular dated 7 th November 2015 only. Therefore, the pensioners of APS having not been excluded in such Circular, would be covered by the decision to grant OROP . Such circular excludes only those pensioners who are in receipt of pension for the services rendered in the armed forces of the country or the armed forces prior to the Independence of the Country or the forces which are getting pension for the reason that they were members of the State forces at the time of merger of the States with Indian Union after independence. Such exclusion is of distinct category who are pensioners of the Army at some stage but have no relation with the pensioners of defence forces as on 1 st July 2014. There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces22. The reliance of Mr. Ahmadi on 1979 Rules wherein the Ex- servicemen have been defined to include the members of APS, is again not tenable. Such Rules are applicable for the purpose of recruitment to certain posts in the Central Civil Services. The wide definition and purport of the Rules is to provide reservation for Ex- servicemen for the purpose of employment in the civil administration. Such provision is not of general application so as to extend the meaning assigned in a particular rule to another set of Instructions. Similarly, the Circular dated 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd February, 2016 were addressed to the Chiefs of the Armed Forces in respect of the pensioners of the forces which is evident from clause 4 of the Circular dated 3 rd February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers23. The respondents were holders of Temporary Commission only to fa- cilitate the grant of rank and other benefits but they cannot be called as Commissioned Officers. Even the argument that the members of Territorial Army have been granted benefit of OROP is again not tenable for the reason that the Territorial Army is gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions as they exist rather than to expand the scope of Circulars when such benefits were not conferred on the members of APS25. Another undisputed fact that the respondents have retired from service corresponding to the age of the retirement of the Department of Posts i.e. 58 years or 60 years. It is not disputed that retirement age of a regular Commissioned Officer of the rank of Lt. Colonel is 54 years. Such fact only shows that the respondents are the holders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred. If the respondents are to be accepted as members of the Armed Forces in respect of retrial benefits, they would have been made to retire at the age of 54 years i.e. the age of the superannuation of the personnel of the Armed Forces in the rank of Lt. Colonel.
|
V.V.R.N.M. Subbayya Chettiar Vs. Commissioner Of Income-Tax, Madras | is wherefrom the person or group of persons controls or directs the business. (2) Mere activity by the company in a place does not create residence, with the result that a company may be "residing" in one place and doing a great deal of business in another. (3) The central management and control of a company may be divided, and it may keep house and do business in more than one place , and, if so, it may have more than one residence. (4) In case of dual residence, it is necessary to show that the company performs some of the vital organic functions incidental to its existence as such in both the places, so that in fact there are two centres of management.9. It appears to us that these principles have to be kept in view in properly construing S. 4A (b) of the Act. The words used in this provision clearly show firstly, that, normally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will not apply if the case can be brought under the second part of the provision. Secondly, we take it that the word "affair" must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India. Lastly, the word "wholly" suggests that a Hindu undivided family may have more than one "residence" in the same way as a corporation may have.10. The question which now arise is what is the result of the application of these principles to this case, and, whether it can be held that the central control and management of the affairs of the assessees family has been shown to be divided in this case.11. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot constitute that place the seat of control and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely coming out to India to take part in them, he cannot be said to have shifted the seat of management and control of the affairs of his family, or to have started a second centre for such control and management. The same remark must apply to the starting of two partnership businesses, as mere "activity" cannot be the test of residence. It seems to us that the learner Judges of the High Court have taken rather a narrow view of the meaning of S. 4A (b), because they seem to have proceeded on the assumption that merely because the assessee attended to some of the affairs of his family during his visit to British India in the particular year, he brought himself within the ambit of the rule. On the other hand, it seems to as that the more correct approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following passage which occurs in his order dated 24/2/1944 :"During a major portion of the accounting period (year ending 12/4/1942) the appellant was controlling the businesses in Burma and Saigon and there is no evidence that such control was exercised only from Colombo. No correspondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was on an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising control by issuing instructions... .. It has been admitted that there are affairs of the family in British India. Has it been definitely established in this case that the control and management of such affairs has been only in Colombo ? I have to hold it has not been established for the reasons already stated by me."12. There can be no doubt that the onus of proving facts which would bring his case within the exception which is provided by the latter part of S. 4A (b), was on the assessee. The appellant was called upon to adduce evidence to show that the control and management of the affairs of the family was situated wholly outside the taxable territories, but the correspondence to which the Assistant Commissioner of Income tax refers and other material evidence which might have shown that normally and as a matter of course the affairs in India were also being controlled from Colombo were not produced. The position, therefore, is this. On the one hand, we have the foot that the head and karta of the assessees family who controls and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon. On the other hand, we have certain acts done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, are by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining it. In these circumstances, and in the absence of the material evidence to which reference has been made, the finding of the Assistant Commissioner that the onus of proving such facts as would bring his case within the exception had not been discharged by the assessee and the normal presumption must be given effect to, appears to us to be a legitimate conclusion. | 0[ds]9. It appears to us that these principles have to be kept in view in properly construing S. 4A (b) of the Act. The words used in this provision clearly show firstly, that, normally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will not apply if the case can be brought under the second part of the provision. Secondly, we take it that the word "affair" must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India. Lastly, the word "wholly" suggests that a Hindu undivided family may have more than one "residence" in the same way as a corporation may have.The question which now arise is what is the result of the application of these principles to this case, and, whether it can be held that the central control and management of the affairs of the assessees family has been shown to be divided in this case.It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot constitute that place the seat of control and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely coming out to India to take part in them, he cannot be said to have shifted the seat of management and control of the affairs of his family, or to have started a second centre for such control and management. The same remark must apply to the starting of two partnership businesses, as mere "activity" cannot be the test of residence. It seems to us that the learner Judges of the High Court have taken rather a narrow view of the meaning of S. 4A (b), because they seem to have proceeded on the assumption that merely because the assessee attended to some of the affairs of his family during his visit to British India in the particular year, he brought himself within the ambit of the rule.There can be no doubt that the onus of proving facts which would bring his case within the exception which is provided by the latter part of S. 4A (b), was on the assessee. The appellant was called upon to adduce evidence to show that the control and management of the affairs of the family was situated wholly outside the taxable territories, but the correspondence to which the Assistant Commissioner of Income tax refers and other material evidence which might have shown that normally and as a matter of course the affairs in India were also being controlled from Colombo were not produced. The position, therefore, is this. On the one hand, we have the foot that the head and karta of the assessees family who controls and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon. On the other hand, we have certain acts done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, are by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining it. In these circumstances, and in the absence of the material evidence to which reference has been made, the finding of the Assistant Commissioner that the onus of proving such facts as would bring his case within the exception had not been discharged by the assessee and the normal presumption must be given effect to, appears to us to be a legitimate conclusion. | 0 | 2,304 | 753 | ### 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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is wherefrom the person or group of persons controls or directs the business. (2) Mere activity by the company in a place does not create residence, with the result that a company may be "residing" in one place and doing a great deal of business in another. (3) The central management and control of a company may be divided, and it may keep house and do business in more than one place , and, if so, it may have more than one residence. (4) In case of dual residence, it is necessary to show that the company performs some of the vital organic functions incidental to its existence as such in both the places, so that in fact there are two centres of management.9. It appears to us that these principles have to be kept in view in properly construing S. 4A (b) of the Act. The words used in this provision clearly show firstly, that, normally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will not apply if the case can be brought under the second part of the provision. Secondly, we take it that the word "affair" must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India. Lastly, the word "wholly" suggests that a Hindu undivided family may have more than one "residence" in the same way as a corporation may have.10. The question which now arise is what is the result of the application of these principles to this case, and, whether it can be held that the central control and management of the affairs of the assessees family has been shown to be divided in this case.11. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot constitute that place the seat of control and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely coming out to India to take part in them, he cannot be said to have shifted the seat of management and control of the affairs of his family, or to have started a second centre for such control and management. The same remark must apply to the starting of two partnership businesses, as mere "activity" cannot be the test of residence. It seems to us that the learner Judges of the High Court have taken rather a narrow view of the meaning of S. 4A (b), because they seem to have proceeded on the assumption that merely because the assessee attended to some of the affairs of his family during his visit to British India in the particular year, he brought himself within the ambit of the rule. On the other hand, it seems to as that the more correct approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following passage which occurs in his order dated 24/2/1944 :"During a major portion of the accounting period (year ending 12/4/1942) the appellant was controlling the businesses in Burma and Saigon and there is no evidence that such control was exercised only from Colombo. No correspondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was on an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising control by issuing instructions... .. It has been admitted that there are affairs of the family in British India. Has it been definitely established in this case that the control and management of such affairs has been only in Colombo ? I have to hold it has not been established for the reasons already stated by me."12. There can be no doubt that the onus of proving facts which would bring his case within the exception which is provided by the latter part of S. 4A (b), was on the assessee. The appellant was called upon to adduce evidence to show that the control and management of the affairs of the family was situated wholly outside the taxable territories, but the correspondence to which the Assistant Commissioner of Income tax refers and other material evidence which might have shown that normally and as a matter of course the affairs in India were also being controlled from Colombo were not produced. The position, therefore, is this. On the one hand, we have the foot that the head and karta of the assessees family who controls and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon. On the other hand, we have certain acts done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, are by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining it. In these circumstances, and in the absence of the material evidence to which reference has been made, the finding of the Assistant Commissioner that the onus of proving such facts as would bring his case within the exception had not been discharged by the assessee and the normal presumption must be given effect to, appears to us to be a legitimate conclusion.
### Response:
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9. It appears to us that these principles have to be kept in view in properly construing S. 4A (b) of the Act. The words used in this provision clearly show firstly, that, normally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will not apply if the case can be brought under the second part of the provision. Secondly, we take it that the word "affair" must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India. Lastly, the word "wholly" suggests that a Hindu undivided family may have more than one "residence" in the same way as a corporation may have.The question which now arise is what is the result of the application of these principles to this case, and, whether it can be held that the central control and management of the affairs of the assessees family has been shown to be divided in this case.It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot constitute that place the seat of control and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely coming out to India to take part in them, he cannot be said to have shifted the seat of management and control of the affairs of his family, or to have started a second centre for such control and management. The same remark must apply to the starting of two partnership businesses, as mere "activity" cannot be the test of residence. It seems to us that the learner Judges of the High Court have taken rather a narrow view of the meaning of S. 4A (b), because they seem to have proceeded on the assumption that merely because the assessee attended to some of the affairs of his family during his visit to British India in the particular year, he brought himself within the ambit of the rule.There can be no doubt that the onus of proving facts which would bring his case within the exception which is provided by the latter part of S. 4A (b), was on the assessee. The appellant was called upon to adduce evidence to show that the control and management of the affairs of the family was situated wholly outside the taxable territories, but the correspondence to which the Assistant Commissioner of Income tax refers and other material evidence which might have shown that normally and as a matter of course the affairs in India were also being controlled from Colombo were not produced. The position, therefore, is this. On the one hand, we have the foot that the head and karta of the assessees family who controls and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon. On the other hand, we have certain acts done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, are by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining it. In these circumstances, and in the absence of the material evidence to which reference has been made, the finding of the Assistant Commissioner that the onus of proving such facts as would bring his case within the exception had not been discharged by the assessee and the normal presumption must be given effect to, appears to us to be a legitimate conclusion.
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Swedish Match Ab Vs. Securities & Exchange Board,India | Act having set up a trap for them, the logical consequences would ensue. 102. In the Seksaria Cotton Mills Ltd. (supra) the Court was dealing with the activities of a welfare agent vis-a-vis the meaning of possession in the relevant Act. The Court found: The facts are truly and accurately given according to the popular and natural meaning of the words used: nothing was hidden. The goods did reach the quota-holder in the end, or rather his proper agent, and we cannot see what anyone could stand to gain in an unauthorised way over the very natural mistake, which occurred owing to what seems to have been a time-bag in the consequences of a change of agency. So, even if there was a technical breach of the law, it was not one which called for the severe strictures which are to be found in the trial courts judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned Judges took of the law." 103. In the aforementioned backdrop only, it was held: "In a penal statute of this kind it is our duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become traps for honest, unlearned (in the law) and unwary men. If there is honest and substantial compliance with an array of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious meanings can be devised." 104. This is a case of non-compliance of mandatory statutory provisions and not of substantial compliance. It is also not a case involving unlearned or unwary men. 105. In Bhagirath Sharma (supra) the question which fell for consideration was whether tube is included within the expression tyre. Keeping in view the provisions of the Essential Commodities - Prices and Stocks (Display and Control) Order, 1967, this Court applied the rule of strict construction. 106. Regulations being regulatory in nature, the intent and object sought to be achieved thereby must be firmly applied with. In this view of the matter, we are of the opinion that Regulations do not deserve strict constructions so as to hold that even a public offer was not necessary. Another Facet of the Case: 107. Having held so, would it be proper for this Court to direct the Board not to take any penal action against the Appellants? 108. The Board is an expert body. As a legislature, it makes the regulations, as an executive, it implements the legislation and in case of a breach it takes upon a quasi-judicial function. While functioning in its judicial capacity, it ha wide discretion. It can initiate criminal proceedings in terms of Section 24 of the Act, issue directions in terms of Section 11-B and Regulation 44 as also take recourse to penal provisions as contained in Section 24 and Chapter VI-A of the Act. Its decision is final subject to the decision of the Tribunal. But the sequences of events, as noticed hereinbefore, clearly go to show that even the Board was not sure of the legal position. 109. It in no uncertain terms held: "As the said change from joint to sole control took place in pursuance to a resolution passed by the shareholders in general meeting, the same would not trigger Regulation 12, same being covered under proviso to Regulation 12." 110. The Board even did not think it fit to apply the Explanation appended to Regulation 12 in its proper perspective. 111. It is only the Tribunal at a later stage came to a clear finding that proviso appended to Regulation 12 will have no application and Explanation would. 112. Before us also the Counsel read the regulations in question over and over again. Focus on certain words was placed differently at different times. It is only after considering the matter from different angles, we have been able to arrive at a definite conclusion. 113. In Trustees of Sir John Airds Settlement (supra) upon taking into consideration several alternative arguments on construction of the Finance Act 1975 Schedule 5 para 6(7) as originally enacted, the Court preferred the one based on the unglossed literal meaning. 114. The adversarial system prevailing in India allows a counsel to put forward construction of the enactment in question relying on several alternative arguments and the Court may ultimately base its judgment on unglossed literal meaning. (See Example 149.5 of Francis Bennions Statutory Interpretation Fourth Edition, page 371. 115. In the aforementioned, backdrop, this Court thought it fit to consider as to whether in exercise of its jurisdiction under Article 142 of the Constitution of India a direction should be issued directing the Board to forbear from proceeding under Section 15H of the Act against the Appellant. 116. It is accepted that once a public offer is made the investors would be entitled to elect to transfer their shares their shares at a higher price which may be offered by the acquirer with a view to acquire control over the target company. The investors would also be entitled to interest at such rate as the Board may determine. The provisions of Section 15H of the Act mandates that a penalty of rupees twenty-five crore may be imposed. The Board does not have any discretion in the matter and, thus, the adjudication proceeding is a mere formality. Imposition of penalty upon the Appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the Appellants, existence of mens rea on the part of the Appellants will come up for consideration.117. We, therefore, are of the opinion that it is a fit case where this Court should exercise its jurisdiction under Article 142 of the Constitution to direct the Board to forbear from proceedings with the adjudication proceeding against the Appellants. This may not, however, be treated to be a precedent. | 1[ds]45. Establishment of independent regulatory agencies and need for expert regulation were long felt primarily as a response to the growing complexity in human affairs and trade and business in particular. It was felt that a regulator who was aware of the realities of that field should be ready to regulate that field. Demand for regulators who were not mere Government officials but people who are experts in the fields came up. Regulations framed by an expert body like SEBI was felt to be an effective substitute for government regulation. The evolution in respect whereof can be traced back to the Great Depression of 1930s. As a part of the new deal, several expert bodies were established like the Federal Communications Commission and Securities Exchange Commission. In the Indian context, this rationale was invoked for the establishment of an expert body to regulate the securities market after the Securities Scam in 1992.It is aprinciple of law that where wordings of a statute are absolutely clear and unambiguous recourse to different principles of interpretations may not be resorted to but where the words of a statute are not so clear and unambiguous, the other principles of interpretation should be resorted to.Regulations 10, 11 and 12operate in three different fields. They seek to control creeping acquisition, which may lead to substantial acquisition and ultimately total control of the company. There may, however, be a case where control of the company is sought to be taken over by transfer of share only i.e. by a single transaction, in which event Regulations 11 and 12 both may apply.Situation, however, would be different when the transfer of joint control to sole control takes place through sale at a price which is higher than the market value of the shares leading to change in control over the target company, which cannot be done pursuant to a resolution passed by the shareholders in a general meeting in terms of the first proviso. In other words, in the event, the change in control is sought to be achieved by sale of shares at a price higher than the market value of the share, Regulation 12 will clearly be attracted marking public announcement imperative. Such public announcement evidently is required to be made having regard to the fact that the interest of investors is required to be protected; pursuant whereto and in furtherance whereof the shareholder would be informed of the value of the share at which the transfer of control would take place so as to enable him to exercise his option to sell his shares at the price offered by the acquirer or continue to keep the same.59. A general meeting of the shareholders of the target company had taken place but the same does notthe requirements of law inasmuch as, it would bear repetition to state, when transfer of control over the target company takes place by reason of acquisition of shares at a price higher than the market price the acquirer has a statutory obligation to make the public announcement. Such a statutory requirement is not capable of being waived by the majority shareholders. In this case, the records reveal that the shareholders were not informed that although the market value of the share was about Rs. 9.55, Jatia Group was offered the price of Rs. 35/per equity share. It was merely disclosed that such acquisition would not be at a price lower than the market price. If such transfer was to take place at a price less than the market price, the second proviso appended to Regulation 12 would have been attracted. It was, therefore, obligatory on the part of the acquirer to furnish correct information as regard the price which was being offered to Jatia Group.The Explanation was inserted evidently with a view to clear the obscurity occurring in Regulation 12 as regard a class of cases of cessation of joint control to sole control.69.It is true that Regulation 12 could have better worded but the application of Regulations 11 and 12 in a case of this nature is free from doubt. This is not a case where having regard to the explanations in the provisos and reading the provision in the manner we have done, it stands obscure. The Explanations (i) and (ii) are not Explanations to the provisos but the main part thereof.72. It would, therefore, be not correct to contend that where there is a mere cessor of control by one out of two persons already in control or where any person or persons are given joint control and the combined degree of control is not greater than being presently exercised, a Resolution in general meeting wouldthe purpose, is devoid of any merit as change in control has taken place by reason of acquisition of shares from another person in control. Having regard to the fact that the price offered to Jatia Group was higher than the market price, a public announcement was imperative so as to enable the shareholders to elect as to whether to sell their shares held by them or not. No exemption from public announcement has been carved out by reason of the proviso appended to Regulation 12 as in terms of the Explanation, Regulation 12 would have no application.Regulation 11, therefore, contemplates both situations, namely, where substantial acquisition of shares may result in change of control and where it does not. Only because in a case where acquisition of additional shares may result in change of control, the same by itself would not exempt the acquirer from complying with the statutory requirement of Regulation 11. Primarily,Regulations 10, 11 and 12operate in different fields which is manifested from a plain reading of Regulations 14, 15 and 16. We may, however, hasten to add that there may be a situation where Regulations 11 and 12 may overlap with each other, in which event, it would be open to the acquirer to issue a combined notice fulfilling the requirement of both Regulations 11 and 12.82. Indisputably, the purport and object of which a regulation is made must be duly fulfilled. Public announcement is at the base ofRegulations 10, 11 andExcept in a situation which would bring the case within one or the other exception clause, the requirement of complying with the mandatory requirements to make public announcement cannot be dispensed with.83. Admittedly in this case no public announcement has been made.84. It may be true that the Board in its impugned order dated 4th June, 2002 proceeded on a wrong premise that having regard to the proviso appended to Regulation 12, Regulation 12 would be attracted. But the SAT, in our opinion, rightly construed the provisions of Regulations 11 and 12 in arriving at a finding that Regulation 11 would be attracted and Regulation 12 would not be. The Tribunal was entitled to take a different view of the matter from that of the Board with a view to sustain the ultimate result in the appeal in exercise of its appellate power. Such a power in the appellate court/ tribunals is akin to or analogous to the principles contained in Order 41 Rule 33 of Code of Civil Procedure. Even otherwise before us the judgment of the Tribunal is in question, this Court is required to consider the correctness or otherwise of the Tribunal. In any event, the reasoning of the tribunal shall prevail over the Board.Although we do not find any difficulty in construing the provisions of Regulations 11 and 12 but assuming Regulations 11 and 12 are not clear, the rule of purposive construction should be taken recourse to.86. It is now trite that when an expression is capable of more than one meaning, the Court would attempt to resolve that ambiguity in a manner consistent with the purpose of the provisions and with regard to the consequences of the alternative constructions.The said decision, thus, runs counter to the submissions of Mr. Nariman. In this case also conditions are imposed in the matter of acquisition of shares. If the conditions have not been complied with, the Act having set up a trap for them, the logical consequences would ensue.Regulations being regulatory in nature, the intent and object sought to be achieved thereby must be firmly applied with. In this view of the matter, we are of the opinion that Regulations do not deserve strict constructions so as to hold that even a public offer was not necessary.The Board is an expert body. As a legislature, it makes the regulations, as an executive, it implements the legislation and in case of a breach it takes upon afunction. While functioning in its judicial capacity, it ha wide discretion. It can initiate criminal proceedings in terms of Section 24 of the Act, issue directions in terms of Sectionand Regulation 44 as also take recourse to penal provisions as contained in Section 24 and ChapterVIA of theAct. Its decision is final subject to the decision of the Tribunal. But the sequences of events, as noticed hereinbefore, clearly go to show that even the Board was not sure of the legal position.d that once a public offer is made the investors would be entitled to elect to transfer their shares their shares at a higher price which may be offered by the acquirer with a view to acquire control over the target company. The investors would also be entitled to interest at such rate as the Board may determine. The provisions of Section 15H of the Act mandates that a penalty of rupeescrore may be imposed. The Board does not have any discretion in the matter and, thus, the adjudication proceeding is a mere formality. Imposition of penalty upon the Appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the Appellants, existence of mens rea on the part of the Appellants will come up for consideration.117. We, therefore, are of the opinion that it is a fit case where this Court should exercise its jurisdiction under Article 142 of the Constitution to direct the Board to forbear from proceedings with the adjudication proceeding against the Appellants. This may not, however, be treated to be a precedent. | 1 | 12,284 | 1,829 | ### 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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Act having set up a trap for them, the logical consequences would ensue. 102. In the Seksaria Cotton Mills Ltd. (supra) the Court was dealing with the activities of a welfare agent vis-a-vis the meaning of possession in the relevant Act. The Court found: The facts are truly and accurately given according to the popular and natural meaning of the words used: nothing was hidden. The goods did reach the quota-holder in the end, or rather his proper agent, and we cannot see what anyone could stand to gain in an unauthorised way over the very natural mistake, which occurred owing to what seems to have been a time-bag in the consequences of a change of agency. So, even if there was a technical breach of the law, it was not one which called for the severe strictures which are to be found in the trial courts judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned Judges took of the law." 103. In the aforementioned backdrop only, it was held: "In a penal statute of this kind it is our duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become traps for honest, unlearned (in the law) and unwary men. If there is honest and substantial compliance with an array of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious meanings can be devised." 104. This is a case of non-compliance of mandatory statutory provisions and not of substantial compliance. It is also not a case involving unlearned or unwary men. 105. In Bhagirath Sharma (supra) the question which fell for consideration was whether tube is included within the expression tyre. Keeping in view the provisions of the Essential Commodities - Prices and Stocks (Display and Control) Order, 1967, this Court applied the rule of strict construction. 106. Regulations being regulatory in nature, the intent and object sought to be achieved thereby must be firmly applied with. In this view of the matter, we are of the opinion that Regulations do not deserve strict constructions so as to hold that even a public offer was not necessary. Another Facet of the Case: 107. Having held so, would it be proper for this Court to direct the Board not to take any penal action against the Appellants? 108. The Board is an expert body. As a legislature, it makes the regulations, as an executive, it implements the legislation and in case of a breach it takes upon a quasi-judicial function. While functioning in its judicial capacity, it ha wide discretion. It can initiate criminal proceedings in terms of Section 24 of the Act, issue directions in terms of Section 11-B and Regulation 44 as also take recourse to penal provisions as contained in Section 24 and Chapter VI-A of the Act. Its decision is final subject to the decision of the Tribunal. But the sequences of events, as noticed hereinbefore, clearly go to show that even the Board was not sure of the legal position. 109. It in no uncertain terms held: "As the said change from joint to sole control took place in pursuance to a resolution passed by the shareholders in general meeting, the same would not trigger Regulation 12, same being covered under proviso to Regulation 12." 110. The Board even did not think it fit to apply the Explanation appended to Regulation 12 in its proper perspective. 111. It is only the Tribunal at a later stage came to a clear finding that proviso appended to Regulation 12 will have no application and Explanation would. 112. Before us also the Counsel read the regulations in question over and over again. Focus on certain words was placed differently at different times. It is only after considering the matter from different angles, we have been able to arrive at a definite conclusion. 113. In Trustees of Sir John Airds Settlement (supra) upon taking into consideration several alternative arguments on construction of the Finance Act 1975 Schedule 5 para 6(7) as originally enacted, the Court preferred the one based on the unglossed literal meaning. 114. The adversarial system prevailing in India allows a counsel to put forward construction of the enactment in question relying on several alternative arguments and the Court may ultimately base its judgment on unglossed literal meaning. (See Example 149.5 of Francis Bennions Statutory Interpretation Fourth Edition, page 371. 115. In the aforementioned, backdrop, this Court thought it fit to consider as to whether in exercise of its jurisdiction under Article 142 of the Constitution of India a direction should be issued directing the Board to forbear from proceeding under Section 15H of the Act against the Appellant. 116. It is accepted that once a public offer is made the investors would be entitled to elect to transfer their shares their shares at a higher price which may be offered by the acquirer with a view to acquire control over the target company. The investors would also be entitled to interest at such rate as the Board may determine. The provisions of Section 15H of the Act mandates that a penalty of rupees twenty-five crore may be imposed. The Board does not have any discretion in the matter and, thus, the adjudication proceeding is a mere formality. Imposition of penalty upon the Appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the Appellants, existence of mens rea on the part of the Appellants will come up for consideration.117. We, therefore, are of the opinion that it is a fit case where this Court should exercise its jurisdiction under Article 142 of the Constitution to direct the Board to forbear from proceedings with the adjudication proceeding against the Appellants. This may not, however, be treated to be a precedent.
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in the provisos and reading the provision in the manner we have done, it stands obscure. The Explanations (i) and (ii) are not Explanations to the provisos but the main part thereof.72. It would, therefore, be not correct to contend that where there is a mere cessor of control by one out of two persons already in control or where any person or persons are given joint control and the combined degree of control is not greater than being presently exercised, a Resolution in general meeting wouldthe purpose, is devoid of any merit as change in control has taken place by reason of acquisition of shares from another person in control. Having regard to the fact that the price offered to Jatia Group was higher than the market price, a public announcement was imperative so as to enable the shareholders to elect as to whether to sell their shares held by them or not. No exemption from public announcement has been carved out by reason of the proviso appended to Regulation 12 as in terms of the Explanation, Regulation 12 would have no application.Regulation 11, therefore, contemplates both situations, namely, where substantial acquisition of shares may result in change of control and where it does not. Only because in a case where acquisition of additional shares may result in change of control, the same by itself would not exempt the acquirer from complying with the statutory requirement of Regulation 11. Primarily,Regulations 10, 11 and 12operate in different fields which is manifested from a plain reading of Regulations 14, 15 and 16. We may, however, hasten to add that there may be a situation where Regulations 11 and 12 may overlap with each other, in which event, it would be open to the acquirer to issue a combined notice fulfilling the requirement of both Regulations 11 and 12.82. Indisputably, the purport and object of which a regulation is made must be duly fulfilled. Public announcement is at the base ofRegulations 10, 11 andExcept in a situation which would bring the case within one or the other exception clause, the requirement of complying with the mandatory requirements to make public announcement cannot be dispensed with.83. Admittedly in this case no public announcement has been made.84. It may be true that the Board in its impugned order dated 4th June, 2002 proceeded on a wrong premise that having regard to the proviso appended to Regulation 12, Regulation 12 would be attracted. But the SAT, in our opinion, rightly construed the provisions of Regulations 11 and 12 in arriving at a finding that Regulation 11 would be attracted and Regulation 12 would not be. The Tribunal was entitled to take a different view of the matter from that of the Board with a view to sustain the ultimate result in the appeal in exercise of its appellate power. Such a power in the appellate court/ tribunals is akin to or analogous to the principles contained in Order 41 Rule 33 of Code of Civil Procedure. Even otherwise before us the judgment of the Tribunal is in question, this Court is required to consider the correctness or otherwise of the Tribunal. In any event, the reasoning of the tribunal shall prevail over the Board.Although we do not find any difficulty in construing the provisions of Regulations 11 and 12 but assuming Regulations 11 and 12 are not clear, the rule of purposive construction should be taken recourse to.86. It is now trite that when an expression is capable of more than one meaning, the Court would attempt to resolve that ambiguity in a manner consistent with the purpose of the provisions and with regard to the consequences of the alternative constructions.The said decision, thus, runs counter to the submissions of Mr. Nariman. In this case also conditions are imposed in the matter of acquisition of shares. If the conditions have not been complied with, the Act having set up a trap for them, the logical consequences would ensue.Regulations being regulatory in nature, the intent and object sought to be achieved thereby must be firmly applied with. In this view of the matter, we are of the opinion that Regulations do not deserve strict constructions so as to hold that even a public offer was not necessary.The Board is an expert body. As a legislature, it makes the regulations, as an executive, it implements the legislation and in case of a breach it takes upon afunction. While functioning in its judicial capacity, it ha wide discretion. It can initiate criminal proceedings in terms of Section 24 of the Act, issue directions in terms of Sectionand Regulation 44 as also take recourse to penal provisions as contained in Section 24 and ChapterVIA of theAct. Its decision is final subject to the decision of the Tribunal. But the sequences of events, as noticed hereinbefore, clearly go to show that even the Board was not sure of the legal position.d that once a public offer is made the investors would be entitled to elect to transfer their shares their shares at a higher price which may be offered by the acquirer with a view to acquire control over the target company. The investors would also be entitled to interest at such rate as the Board may determine. The provisions of Section 15H of the Act mandates that a penalty of rupeescrore may be imposed. The Board does not have any discretion in the matter and, thus, the adjudication proceeding is a mere formality. Imposition of penalty upon the Appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the Appellants, existence of mens rea on the part of the Appellants will come up for consideration.117. We, therefore, are of the opinion that it is a fit case where this Court should exercise its jurisdiction under Article 142 of the Constitution to direct the Board to forbear from proceedings with the adjudication proceeding against the Appellants. This may not, however, be treated to be a precedent.
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United Bank of India Vs. Official Liquidator | with the option of renewal for a further 99 years for the migrant of Rs 1200 per annum can be said to be land burdened with onerous covenants. We do not think that the High Court was justified in debating and holding in proceedings under Section 535 that the lease of the said land had been validly terminated so that the Official Liquidator became liable to pay mesne profits to the Trust, and that this coupled with arrears of rent, in five figures made the lease onerous. We are also of the view that the Banks offer t o pay the arrears of rent to the Trust should have been accepted by the High Court. The Bank to protect and keep alive its security, had put Official Liquidator in funds in regard to other matters and was eager to meet this liability. Had this been done valuable property of the company in liquidation could have been retained so that its undertaking, which stood on the said land, could have been sold as a running concern, as has been done upon intervention of this Court, for the benefit of its creditors. 12. We now consider the contempt proceedings on the one hand and the application on behalf of Triputi on the other for diminution of the sale price by reason of the fact that, according to Triputi, the Official Liquidator had not been able to hand over to Triputi possession of certain properties that were sold by him to it, which, it is alleged, the company in liquidation did not own. The amount of Rs 1 crore 98 lakhs having been paid, what this really boils down to is whether Triputi should be made liable to pay interest at the rate of 15% per annum thereon.13. In our view, the complete answer to Triputis allegation in regard to the failure of the Official Liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause 2 of the Terms and Conditions of Sale upon the basis of which the property and assets of the company in liquidation were sold by the Official Liquidator to Triputi under the orders of this Court. Clause 2 reads thus: "2. The sale will be as per inventory list on as is where is basis and subject to the confirmation of the Honble Supreme Court of India. The Official Liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volume etc. and the purchaser will be deemed to offer with full knowledge as to the description, area etc. of the properties and defects thereof, if any. The purchaser shall not be entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to all encumbrances, liens anti claims including those under the existing legislation affecting labour, staff etc. The Official Liquidator shall not entertain any complaint in this regard after the sale is over. Any mistake in the notice inviting tender shall not vitiate the sale." * (emphasis supplied) 14. When the Official Liquidator sells the property and assets of acompanyin liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proc eed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98 lakhs. 15. It is true, as was pointed out by Mr A.K. Sen, learned counsel for Triputi, that on August 27, 1992, this Court had said that the question of interes t on the sum of Rs 1 crore 98 lakhs would be decided with the main case. What must also be noted is the unequivocal undertaking given on October 21, 1992 by Triputi to Court, which the Court accepted, wherein it was stated, "Balance amount of Rs 98, 00, 000 would be paid together with interest due on the total amount Rs 1, 98, 00, 000 @ 15% p.a. with effect from January 1, 1989 in 12 equal monthly instalments". We have already referred to the various orders of this Court which indicate quite clearly with what reluctance and over what span of time Triputi paid the sum of Rs 1 crore 98 lakhs;that itself makes the payment of interest thereon appropriate. Coupled therewith is the undertaking aforemen tioned. We are, therefore, of the view that Triputi must pay interest upon the amount of Rs 1 crore 98 lakhs at the rate of 15% per anum from January 1, 1989 till payment. Such payment shall be made within 12 weeks from today. We make it clear that i n the event that the amount of interest as aforementioned is not paid within 12 weeks from today, it shall be open to one or more of the aggrieved par-ties to take appropriate proceedings against Triputi and its Directors. | 0[ds]the aforesaid direction will dispose of the appeal, we would like to say, having heard counsel on the merits of the appeal, that we are not satisfied that the Division Bench appreciated the purpose of the provisions of Section 535 of the Companies Act. Thereunder the High Court may give leave to the Official Liquidator to disclaim land of any tenure which is part of the property of the company in liquidation if it is burdened with onerous covenants. The intention of Section 535 is to protect the creditors of the company in liquidation and not mulct them by reason of onerous covenants. The power under Section 535 is not to be lightly exercised. Due care and circumspection have to be bestowed. It must be remembered that an order permitting disclaimer, while it frees the company in liquidation of the obligation to comply with covenants, puts the party in whose favour the covenants are, to serious disadvantage. The Court must therefore, be fully satisfied that there are onerous covenants, covenants which impose a heavy burden upon the company in liquidation, before giving leave to disclaimare of the view that the High Court ought to have appreciated that it was rather unlikely that the party who had the benefit of onerous covenants would apply for disclaimer and ought to have viewed the Official liquidators application to disclaim made pursuant to the Trusts letter to him in that behalf, in that light. We find it difficult to see how such a large area of land leased to the company in liquidation for 99 years with the option of renewal for a further 99 years for the migrant of Rs 1200 per annum can be said to be land burdened with onerous covenants. We do not think that the High Court was justified in debating and holding in proceedings under Section 535 that the lease of the said land had been validly terminated so that the Official Liquidator became liable to pay mesne profits to the Trust, and that this coupled with arrears of rent, in five figures made the lease onerous. We are also of the view that the Banks offer t o pay the arrears of rent to the Trust should have been accepted by the High Court. The Bank to protect and keep alive its security, had put Official Liquidator in funds in regard to other matters and was eager to meet this liability. Had this been done valuable property of the company in liquidation could have been retained so that its undertaking, which stood on the said land, could have been sold as a running concern, as has been done upon intervention of this Court, for the benefit of itsnow consider the contempt proceedings on the one hand and the application on behalf of Triputi on the other for diminution of the sale price by reason of the fact that, according to Triputi, the Official Liquidator had not been able to hand over to Triputi possession of certain properties that were sold by him to it, which, it is alleged, the company in liquidation did not own. The amount of Rs 1 crore 98 lakhs having been paid, what this really boils down to is whether Triputi should be made liable to pay interest at the rate of 15% per annum thereon.13. In our view, the complete answer to Triputis allegation in regard to the failure of the Official Liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause 2 of the Terms and Conditions of Sale upon the basis of which the property and assets of the company in liquidation were sold by the Official Liquidator to Triputi under the orders of this Court. Clause 2 readsThe sale will be as per inventory list on as is where is basis and subject to the confirmation of the Honble Supreme Court of India. The Official Liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volume etc. and the purchaser will be deemed to offer with full knowledge as to the description, area etc. of the properties and defects thereof, if any. The purchaser shall not be entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to all encumbrances, liens anti claims including those under the existing legislation affecting labour, staff etc. The Official Liquidator shall not entertain any complaint in this regard after the sale is over. Any mistake in the notice inviting tender shall not vitiate the sale."n the Official Liquidator sells the property and assets of acompanyin liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proc eed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98is true, as was pointed out by Mr A.K. Sen, learned counsel for Triputi, that on August 27, 1992, this Court had said that the question of interes t on the sum of Rs 1 crore 98 lakhs would be decided with the main case. What must also be noted is the unequivocal undertaking given on October 21, 1992 by Triputi to Court, which the Court accepted, wherein it was stated, "Balance amount of Rs 98, 00, 000 would be paid together with interest due on the total amount Rs 1, 98, 00, 000 @ 15% p.a. with effect from January 1, 1989 in 12 equal monthly instalments". We have already referred to the various orders of this Court which indicate quite clearly with what reluctance and over what span of time Triputi paid the sum of Rs 1 crore 98 lakhs;that itself makes the payment of interest thereon appropriate. Coupled therewith is the undertaking aforemen tioned. We are, therefore, of the view that Triputi must pay interest upon the amount of Rs 1 crore 98 lakhs at the rate of 15% per anum from January 1, 1989 till payment. Such payment shall be made within 12 weeks from today. We make it clear that i n the event that the amount of interest as aforementioned is not paid within 12 weeks from today, it shall be open to one or more of the aggrieved par-ties to take appropriate proceedings against Triputi and its Directors. | 0 | 4,445 | 1,360 | ### 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:
with the option of renewal for a further 99 years for the migrant of Rs 1200 per annum can be said to be land burdened with onerous covenants. We do not think that the High Court was justified in debating and holding in proceedings under Section 535 that the lease of the said land had been validly terminated so that the Official Liquidator became liable to pay mesne profits to the Trust, and that this coupled with arrears of rent, in five figures made the lease onerous. We are also of the view that the Banks offer t o pay the arrears of rent to the Trust should have been accepted by the High Court. The Bank to protect and keep alive its security, had put Official Liquidator in funds in regard to other matters and was eager to meet this liability. Had this been done valuable property of the company in liquidation could have been retained so that its undertaking, which stood on the said land, could have been sold as a running concern, as has been done upon intervention of this Court, for the benefit of its creditors. 12. We now consider the contempt proceedings on the one hand and the application on behalf of Triputi on the other for diminution of the sale price by reason of the fact that, according to Triputi, the Official Liquidator had not been able to hand over to Triputi possession of certain properties that were sold by him to it, which, it is alleged, the company in liquidation did not own. The amount of Rs 1 crore 98 lakhs having been paid, what this really boils down to is whether Triputi should be made liable to pay interest at the rate of 15% per annum thereon.13. In our view, the complete answer to Triputis allegation in regard to the failure of the Official Liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause 2 of the Terms and Conditions of Sale upon the basis of which the property and assets of the company in liquidation were sold by the Official Liquidator to Triputi under the orders of this Court. Clause 2 reads thus: "2. The sale will be as per inventory list on as is where is basis and subject to the confirmation of the Honble Supreme Court of India. The Official Liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volume etc. and the purchaser will be deemed to offer with full knowledge as to the description, area etc. of the properties and defects thereof, if any. The purchaser shall not be entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to all encumbrances, liens anti claims including those under the existing legislation affecting labour, staff etc. The Official Liquidator shall not entertain any complaint in this regard after the sale is over. Any mistake in the notice inviting tender shall not vitiate the sale." * (emphasis supplied) 14. When the Official Liquidator sells the property and assets of acompanyin liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proc eed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98 lakhs. 15. It is true, as was pointed out by Mr A.K. Sen, learned counsel for Triputi, that on August 27, 1992, this Court had said that the question of interes t on the sum of Rs 1 crore 98 lakhs would be decided with the main case. What must also be noted is the unequivocal undertaking given on October 21, 1992 by Triputi to Court, which the Court accepted, wherein it was stated, "Balance amount of Rs 98, 00, 000 would be paid together with interest due on the total amount Rs 1, 98, 00, 000 @ 15% p.a. with effect from January 1, 1989 in 12 equal monthly instalments". We have already referred to the various orders of this Court which indicate quite clearly with what reluctance and over what span of time Triputi paid the sum of Rs 1 crore 98 lakhs;that itself makes the payment of interest thereon appropriate. Coupled therewith is the undertaking aforemen tioned. We are, therefore, of the view that Triputi must pay interest upon the amount of Rs 1 crore 98 lakhs at the rate of 15% per anum from January 1, 1989 till payment. Such payment shall be made within 12 weeks from today. We make it clear that i n the event that the amount of interest as aforementioned is not paid within 12 weeks from today, it shall be open to one or more of the aggrieved par-ties to take appropriate proceedings against Triputi and its Directors.
### Response:
0
### Explanation:
how such a large area of land leased to the company in liquidation for 99 years with the option of renewal for a further 99 years for the migrant of Rs 1200 per annum can be said to be land burdened with onerous covenants. We do not think that the High Court was justified in debating and holding in proceedings under Section 535 that the lease of the said land had been validly terminated so that the Official Liquidator became liable to pay mesne profits to the Trust, and that this coupled with arrears of rent, in five figures made the lease onerous. We are also of the view that the Banks offer t o pay the arrears of rent to the Trust should have been accepted by the High Court. The Bank to protect and keep alive its security, had put Official Liquidator in funds in regard to other matters and was eager to meet this liability. Had this been done valuable property of the company in liquidation could have been retained so that its undertaking, which stood on the said land, could have been sold as a running concern, as has been done upon intervention of this Court, for the benefit of itsnow consider the contempt proceedings on the one hand and the application on behalf of Triputi on the other for diminution of the sale price by reason of the fact that, according to Triputi, the Official Liquidator had not been able to hand over to Triputi possession of certain properties that were sold by him to it, which, it is alleged, the company in liquidation did not own. The amount of Rs 1 crore 98 lakhs having been paid, what this really boils down to is whether Triputi should be made liable to pay interest at the rate of 15% per annum thereon.13. In our view, the complete answer to Triputis allegation in regard to the failure of the Official Liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause 2 of the Terms and Conditions of Sale upon the basis of which the property and assets of the company in liquidation were sold by the Official Liquidator to Triputi under the orders of this Court. Clause 2 readsThe sale will be as per inventory list on as is where is basis and subject to the confirmation of the Honble Supreme Court of India. The Official Liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volume etc. and the purchaser will be deemed to offer with full knowledge as to the description, area etc. of the properties and defects thereof, if any. The purchaser shall not be entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to all encumbrances, liens anti claims including those under the existing legislation affecting labour, staff etc. The Official Liquidator shall not entertain any complaint in this regard after the sale is over. Any mistake in the notice inviting tender shall not vitiate the sale."n the Official Liquidator sells the property and assets of acompanyin liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proc eed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98is true, as was pointed out by Mr A.K. Sen, learned counsel for Triputi, that on August 27, 1992, this Court had said that the question of interes t on the sum of Rs 1 crore 98 lakhs would be decided with the main case. What must also be noted is the unequivocal undertaking given on October 21, 1992 by Triputi to Court, which the Court accepted, wherein it was stated, "Balance amount of Rs 98, 00, 000 would be paid together with interest due on the total amount Rs 1, 98, 00, 000 @ 15% p.a. with effect from January 1, 1989 in 12 equal monthly instalments". We have already referred to the various orders of this Court which indicate quite clearly with what reluctance and over what span of time Triputi paid the sum of Rs 1 crore 98 lakhs;that itself makes the payment of interest thereon appropriate. Coupled therewith is the undertaking aforemen tioned. We are, therefore, of the view that Triputi must pay interest upon the amount of Rs 1 crore 98 lakhs at the rate of 15% per anum from January 1, 1989 till payment. Such payment shall be made within 12 weeks from today. We make it clear that i n the event that the amount of interest as aforementioned is not paid within 12 weeks from today, it shall be open to one or more of the aggrieved par-ties to take appropriate proceedings against Triputi and its Directors.
|
Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. & Another Vs. CTR Manufacturing Industries Ltd. & Another | the drawings on 24.12.2010 was an inadvertent mistake arising from the failure to communicate order dated 09.12.2010 "down the line" to the operational personnel. What is important is that in Paragraph 12 of the response filed on behalf of the appellants, the appellants have tendered an unconditional and sincere apology to the court for an inadvertent and unintentional submission of drawings by SERGI on 24.12.2010 in the following words : "I say that I, Sergis Managing Director and Respondent No. 2, hereby tender an unconditional and sincere apology to the Courts for the inadvertent and unintentional submission of drawings by Sergi on the 24th of December, 2010. I say that there was no intention on the part of the Respondents to subvert the rule of law. I say that Sergi and I have the highest respect for the laws of India and ask for forgiveness for the inadvertent and unintentional mistake. I assure the Courts that Respondent No. 1 has now put in place a vibrant and effective system to ensure that mistakes such as these do not recur." 9. The High Court while considering the matter has in our opinion, failed to appreciate the defence that had been set up by the appellants. The explanation offered by the appellants was a plausible one which ought to have been kept in mind by the High Court while examining whether the present was a fit case for prosecution of the appellants. At any rate, the High Court has not adverted to the question whether it was expedient "in the interest of Justice" to launch prosecution against the appellants for the mistake which according to the respondents was deliberate but unintentional according to the appellants. According to the appellants the mistake occurred out of a certain communication gap between the higher officers of the company and the operational staff. That Prosecution cannot be launched just at the asking of a party is well established. A long line of decisions of this Court have examined the circumstances in which the court ought to invoke that power. The High Court has, while considering the question of launching prosecution for perjury, to examine whether it is expedient in the interest of justice to do so, having regard to the totality of the circumstances. Inasmuch the High Court has failed to advert to that aspect and record a finding that it is expedient in the interest of justice to direct prosecution, the order passed by the High Court falls short of the legal requirements. 10. Equally important is the fact that the High Court had by order dated 11.01.2011 examined the question whether the appellants could be allowed to file their drawings before DTL. The High Court had while examining that aspect of the matter clearly observed as under : "As already stated herein-above, it is not as if that the product of the appellant is not patented. On the contrary, it is to be noted that the product of the appellant is patented as way back as in 2002 whereas the product of the plaintiff-respondent is patented only in 2006. Though it is the contention of the plaintiff that the product of the appellant is not in conformity with the standards required by DTL, in my view, it will be for the DTL to decide whether the products are in conformity with the standards or not. At this stage, it is only word against word. It is the contention of the plaintiff that the product of the appellant is not in conformity with the requirements, whereas, it is the contention of the appellant that it is in conformity with the required standards. The application of the plaintiff under Rule 39 Order 1 and 2 is yet to be decided. The contention of the plaintiff that the defendant-appellant is dishonestly using the product of the plaintiff as its own product is not considered even at the stage of grant of injunction after hearing the parties. All orders passed are at ad interim ex-parte stage. In that view of the matter, I find that the learned District Judge has erred in rejecting the application. It is to be noted from paragraph 22 of the Purchase Order that in the event the appellant fails to submit the drawings within the stipulated period, the appellant would be required to face the penal liability. As against this, no prejudice would be caused to the plaintiff inasmuch as the appellant has given clear undertaking reproduced herein above, wherein, it has categorically stated that it shall not claim any equities on account of submission of drawings. Appellant has further undertaken that the drawings to be submitted to DTL shall be in accordance with its patent i.e. Patent No. 189089. It is thus clear that if the appellant fails to submit the drawings, every days delay would add to the penal charges that would be required to pay. As against this, no prejudice would be caused to the plaintiff merely by submission of the drawings. The question as to whether the appellant is dishonestly using the plaintiffs product is yet to be gone into even at a prima facie stage" 11. In the totality of the above facts, we are of the view that the High Court has taken a hyper technical view of the matter in directing launch of prosecution against the appellants. From the defence set up by the appellants and the explanation offered by them it appears to us that there was no intention on the part of the appellants to defy the orders by which they have been restrained from taking further steps towards compliance of the purchase order, dated 02.12.2010 issued by DTL, for otherwise, there was no need for the appellants to approach the District Court and the High court for permission to do so.12. In the circumstances, we are of the view that the present is not a fit case in which the High Court should have directed the institution of criminal proceedings against the appellants. | 1[ds]9. The High Court while considering the matter has in our opinion, failed to appreciate the defence that had been set up by the appellants. The explanation offered by the appellants was a plausible one which ought to have been kept in mind by the High Court while examining whether the present was a fit case for prosecution of the appellants. At any rate, the High Court has not adverted to the question whether it was expedient "in the interest of Justice" to launch prosecution against the appellants for the mistake which according to the respondents was deliberate but unintentional according to the appellants. According to the appellants the mistake occurred out of a certain communication gap between the higher officers of the company and the operational staff. That Prosecution cannot be launched just at the asking of a party is well established. A long line of decisions of this Court have examined the circumstances in which the court ought to invoke that power. The High Court has, while considering the question of launching prosecution for perjury, to examine whether it is expedient in the interest of justice to do so, having regard to the totality of the circumstances. Inasmuch the High Court has failed to advert to that aspect and record a finding that it is expedient in the interest of justice to direct prosecution, the order passed by the High Court falls short of the legal requirements.In the totality of the above facts, we are of the view that the High Court has taken a hyper technical view of the matter in directing launch of prosecution against the appellants. From the defence set up by the appellants and the explanation offered by them it appears to us that there was no intention on the part of the appellants to defy the orders by which they have been restrained from taking further steps towards compliance of the purchase order, dated 02.12.2010 issued by DTL, for otherwise, there was no need for the appellants to approach the District Court and the High court for permission to do so.12. In the circumstances, we are of the view that the present is not a fit case in which the High Court should have directed the institution of criminal proceedings against the appellants. | 1 | 2,191 | 409 | ### 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 drawings on 24.12.2010 was an inadvertent mistake arising from the failure to communicate order dated 09.12.2010 "down the line" to the operational personnel. What is important is that in Paragraph 12 of the response filed on behalf of the appellants, the appellants have tendered an unconditional and sincere apology to the court for an inadvertent and unintentional submission of drawings by SERGI on 24.12.2010 in the following words : "I say that I, Sergis Managing Director and Respondent No. 2, hereby tender an unconditional and sincere apology to the Courts for the inadvertent and unintentional submission of drawings by Sergi on the 24th of December, 2010. I say that there was no intention on the part of the Respondents to subvert the rule of law. I say that Sergi and I have the highest respect for the laws of India and ask for forgiveness for the inadvertent and unintentional mistake. I assure the Courts that Respondent No. 1 has now put in place a vibrant and effective system to ensure that mistakes such as these do not recur." 9. The High Court while considering the matter has in our opinion, failed to appreciate the defence that had been set up by the appellants. The explanation offered by the appellants was a plausible one which ought to have been kept in mind by the High Court while examining whether the present was a fit case for prosecution of the appellants. At any rate, the High Court has not adverted to the question whether it was expedient "in the interest of Justice" to launch prosecution against the appellants for the mistake which according to the respondents was deliberate but unintentional according to the appellants. According to the appellants the mistake occurred out of a certain communication gap between the higher officers of the company and the operational staff. That Prosecution cannot be launched just at the asking of a party is well established. A long line of decisions of this Court have examined the circumstances in which the court ought to invoke that power. The High Court has, while considering the question of launching prosecution for perjury, to examine whether it is expedient in the interest of justice to do so, having regard to the totality of the circumstances. Inasmuch the High Court has failed to advert to that aspect and record a finding that it is expedient in the interest of justice to direct prosecution, the order passed by the High Court falls short of the legal requirements. 10. Equally important is the fact that the High Court had by order dated 11.01.2011 examined the question whether the appellants could be allowed to file their drawings before DTL. The High Court had while examining that aspect of the matter clearly observed as under : "As already stated herein-above, it is not as if that the product of the appellant is not patented. On the contrary, it is to be noted that the product of the appellant is patented as way back as in 2002 whereas the product of the plaintiff-respondent is patented only in 2006. Though it is the contention of the plaintiff that the product of the appellant is not in conformity with the standards required by DTL, in my view, it will be for the DTL to decide whether the products are in conformity with the standards or not. At this stage, it is only word against word. It is the contention of the plaintiff that the product of the appellant is not in conformity with the requirements, whereas, it is the contention of the appellant that it is in conformity with the required standards. The application of the plaintiff under Rule 39 Order 1 and 2 is yet to be decided. The contention of the plaintiff that the defendant-appellant is dishonestly using the product of the plaintiff as its own product is not considered even at the stage of grant of injunction after hearing the parties. All orders passed are at ad interim ex-parte stage. In that view of the matter, I find that the learned District Judge has erred in rejecting the application. It is to be noted from paragraph 22 of the Purchase Order that in the event the appellant fails to submit the drawings within the stipulated period, the appellant would be required to face the penal liability. As against this, no prejudice would be caused to the plaintiff inasmuch as the appellant has given clear undertaking reproduced herein above, wherein, it has categorically stated that it shall not claim any equities on account of submission of drawings. Appellant has further undertaken that the drawings to be submitted to DTL shall be in accordance with its patent i.e. Patent No. 189089. It is thus clear that if the appellant fails to submit the drawings, every days delay would add to the penal charges that would be required to pay. As against this, no prejudice would be caused to the plaintiff merely by submission of the drawings. The question as to whether the appellant is dishonestly using the plaintiffs product is yet to be gone into even at a prima facie stage" 11. In the totality of the above facts, we are of the view that the High Court has taken a hyper technical view of the matter in directing launch of prosecution against the appellants. From the defence set up by the appellants and the explanation offered by them it appears to us that there was no intention on the part of the appellants to defy the orders by which they have been restrained from taking further steps towards compliance of the purchase order, dated 02.12.2010 issued by DTL, for otherwise, there was no need for the appellants to approach the District Court and the High court for permission to do so.12. In the circumstances, we are of the view that the present is not a fit case in which the High Court should have directed the institution of criminal proceedings against the appellants.
### Response:
1
### Explanation:
9. The High Court while considering the matter has in our opinion, failed to appreciate the defence that had been set up by the appellants. The explanation offered by the appellants was a plausible one which ought to have been kept in mind by the High Court while examining whether the present was a fit case for prosecution of the appellants. At any rate, the High Court has not adverted to the question whether it was expedient "in the interest of Justice" to launch prosecution against the appellants for the mistake which according to the respondents was deliberate but unintentional according to the appellants. According to the appellants the mistake occurred out of a certain communication gap between the higher officers of the company and the operational staff. That Prosecution cannot be launched just at the asking of a party is well established. A long line of decisions of this Court have examined the circumstances in which the court ought to invoke that power. The High Court has, while considering the question of launching prosecution for perjury, to examine whether it is expedient in the interest of justice to do so, having regard to the totality of the circumstances. Inasmuch the High Court has failed to advert to that aspect and record a finding that it is expedient in the interest of justice to direct prosecution, the order passed by the High Court falls short of the legal requirements.In the totality of the above facts, we are of the view that the High Court has taken a hyper technical view of the matter in directing launch of prosecution against the appellants. From the defence set up by the appellants and the explanation offered by them it appears to us that there was no intention on the part of the appellants to defy the orders by which they have been restrained from taking further steps towards compliance of the purchase order, dated 02.12.2010 issued by DTL, for otherwise, there was no need for the appellants to approach the District Court and the High court for permission to do so.12. In the circumstances, we are of the view that the present is not a fit case in which the High Court should have directed the institution of criminal proceedings against the appellants.
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State Of Uttaranchal Vs. Alok Sharma | the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter." 18. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (supra), there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction.19. The learned Single Judge committed an error insofar as it proceeded on the basis that the decision of the High Court in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi is subject matter of the Civil Appeal arising out of SLP(C) No. 8239 of 2005. The High Court also failed to take into consideration that the circular letters dated 30.12.1995 and 26.02.1996 being not notified orders as envisaged in the Rules would not be law within the meaning of Article 13 of the Constitution of India.20. The High Court did not find that the cut-off date to be arbitrary or discriminatory and was, thus, liable to be struck down being ultra vires Article 14 of the Constitution of India. It did not hold that the conditions precedent contained in the Rules prescribing procedure for such recruitment and/ or grant of power of relaxation have been complied with. An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted. In Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy [(2006) 8 SCC 671] , this Court held: "11. The respondents are not members of the Scheduled Caste or Scheduled Tribe. Age-limit is prescribed for appointment to the general category of employees. The upper age-limit for appointment to the post of LDC is 25 years. The advertisement also says so. The Rules, as noticed hereinbefore, are in two parts. The first part talks about the age-limit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified i.e. in favour of those who answered the descriptions stated therein. Relaxation of age-limit even in relation to the Scheduled Caste and the Scheduled Tribe candidates or the retrenched Central Government employees, including the defence personnel is, however, not automatic. The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions." [See also State of Karnataka and Another v. R.Vivekananda Swamy (2008) 5 SCC 328 ] 21. It is in the aforementioned backdrop, the circular letters dated 30.12.1995 and 26.02.1996 are required to be construed. Although in the former, no cut-off date as such has been mentioned and paragraph 4 thereof refers to retrenched employees, by reason whereof they were to be adjusted/ re-appointed on their equivalent posts in view of their qualification in Kumaun Mandal, the term `retrenched employees would carry the same meaning as contained in the rules. Furthermore, the circular letter dated 26.02.1996 was issued in continuation of the earlier letter dated 30.12.1995, which provided for a cut-off date. Both the circular letters are to be read together. If, thus, the respondents were kept outside the purview of the said circular letters, indisputably, they cannot be said to have derived any legal right so as to enable them to pray for issuance of a writ of or in the nature of mandamus. 22. Our attention has been drawn to an additional affidavit filed by the respondents wherein inter alia it has been shown that a large number of employees who had been absorbed were initially appointed after 1.10.1986. Article 14 carries with it a positive concept. It would have no application in the matter of enforcement of an order which has its source in illegality. In other words, equality cannot be applied in illegality. [See Post Master General, Kolkata (supra) and Punjab State Electricity Board and Others v. Gurmail Singh (2008) 7 SCC 245 ] 23. Moreover, the matter relating to division of assets of a government company which had been functioning in the State of Uttar Pradesh as also in the territories forming the State of Uttarakhand could be given effect to only in terms of notified order as contemplated in Section 2(g) of the U.P. Reorganisation Act, 2000 defining it to mean "an order published in the Official Gazette". It has not been denied or disputed that the name of the two companies do not find place in the IXth Schedule appended to the U.P. Reorganisation Act, 2000. 24. We may furthermore notice that in Civil Appeal arising out of SLP (C) No. 8708 of 2006, the post in which the respondent was working has to be filled up on the basis of the recommendations of the Public Service Commission. Public Service Commission being a constitutional authority, it cannot be by-passed by way of a circular letter or otherwise. It, furthermore, appears that he was employed in another concern. In most of the other cases, orders had been passed ex-parte. He had also been paid a huge amount pursuant thereto. | 1[ds]18. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (supra), there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction.19. The learned Single Judge committed an error insofar as it proceeded on the basis that the decision of the High Court in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi is subject matter of the Civil Appeal arising out of SLP(C) No. 8239 of 2005. The High Court also failed to take into consideration that the circular letters dated 30.12.1995 and 26.02.1996 being not notified orders as envisaged in the Rules would not be law within the meaning of Article 13 of the Constitution of India.20. The High Court did not find that thedate to be arbitrary or discriminatory and was, thus, liable to be struck down being ultra vires Article 14 of the Constitution of India. It did not hold that the conditions precedent contained in the Rules prescribing procedure for such recruitment and/ or grant of power of relaxation have been complied with. An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted.It is in the aforementioned backdrop, the circular letters dated 30.12.1995 and 26.02.1996 are required to be construed. Although in the former, nodate as such has been mentioned and paragraph 4 thereof refers to retrenched employees, by reason whereof they were to be adjusted/on their equivalent posts in view of their qualification in Kumaun Mandal, the term `retrenched employees would carry the same meaning as contained in the rules. Furthermore, the circular letter dated 26.02.1996 was issued in continuation of the earlier letter dated 30.12.1995, which provided for adate. Both the circular letters are to be read together. If, thus, the respondents were kept outside the purview of the said circular letters, indisputably, they cannot be said to have derived any legal right so as to enable them to pray for issuance of a writ of or in the nature of mandamus. | 1 | 4,738 | 451 | ### 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:
the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter." 18. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (supra), there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction.19. The learned Single Judge committed an error insofar as it proceeded on the basis that the decision of the High Court in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi is subject matter of the Civil Appeal arising out of SLP(C) No. 8239 of 2005. The High Court also failed to take into consideration that the circular letters dated 30.12.1995 and 26.02.1996 being not notified orders as envisaged in the Rules would not be law within the meaning of Article 13 of the Constitution of India.20. The High Court did not find that the cut-off date to be arbitrary or discriminatory and was, thus, liable to be struck down being ultra vires Article 14 of the Constitution of India. It did not hold that the conditions precedent contained in the Rules prescribing procedure for such recruitment and/ or grant of power of relaxation have been complied with. An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted. In Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy [(2006) 8 SCC 671] , this Court held: "11. The respondents are not members of the Scheduled Caste or Scheduled Tribe. Age-limit is prescribed for appointment to the general category of employees. The upper age-limit for appointment to the post of LDC is 25 years. The advertisement also says so. The Rules, as noticed hereinbefore, are in two parts. The first part talks about the age-limit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified i.e. in favour of those who answered the descriptions stated therein. Relaxation of age-limit even in relation to the Scheduled Caste and the Scheduled Tribe candidates or the retrenched Central Government employees, including the defence personnel is, however, not automatic. The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions." [See also State of Karnataka and Another v. R.Vivekananda Swamy (2008) 5 SCC 328 ] 21. It is in the aforementioned backdrop, the circular letters dated 30.12.1995 and 26.02.1996 are required to be construed. Although in the former, no cut-off date as such has been mentioned and paragraph 4 thereof refers to retrenched employees, by reason whereof they were to be adjusted/ re-appointed on their equivalent posts in view of their qualification in Kumaun Mandal, the term `retrenched employees would carry the same meaning as contained in the rules. Furthermore, the circular letter dated 26.02.1996 was issued in continuation of the earlier letter dated 30.12.1995, which provided for a cut-off date. Both the circular letters are to be read together. If, thus, the respondents were kept outside the purview of the said circular letters, indisputably, they cannot be said to have derived any legal right so as to enable them to pray for issuance of a writ of or in the nature of mandamus. 22. Our attention has been drawn to an additional affidavit filed by the respondents wherein inter alia it has been shown that a large number of employees who had been absorbed were initially appointed after 1.10.1986. Article 14 carries with it a positive concept. It would have no application in the matter of enforcement of an order which has its source in illegality. In other words, equality cannot be applied in illegality. [See Post Master General, Kolkata (supra) and Punjab State Electricity Board and Others v. Gurmail Singh (2008) 7 SCC 245 ] 23. Moreover, the matter relating to division of assets of a government company which had been functioning in the State of Uttar Pradesh as also in the territories forming the State of Uttarakhand could be given effect to only in terms of notified order as contemplated in Section 2(g) of the U.P. Reorganisation Act, 2000 defining it to mean "an order published in the Official Gazette". It has not been denied or disputed that the name of the two companies do not find place in the IXth Schedule appended to the U.P. Reorganisation Act, 2000. 24. We may furthermore notice that in Civil Appeal arising out of SLP (C) No. 8708 of 2006, the post in which the respondent was working has to be filled up on the basis of the recommendations of the Public Service Commission. Public Service Commission being a constitutional authority, it cannot be by-passed by way of a circular letter or otherwise. It, furthermore, appears that he was employed in another concern. In most of the other cases, orders had been passed ex-parte. He had also been paid a huge amount pursuant thereto.
### Response:
1
### Explanation:
18. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (supra), there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction.19. The learned Single Judge committed an error insofar as it proceeded on the basis that the decision of the High Court in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi is subject matter of the Civil Appeal arising out of SLP(C) No. 8239 of 2005. The High Court also failed to take into consideration that the circular letters dated 30.12.1995 and 26.02.1996 being not notified orders as envisaged in the Rules would not be law within the meaning of Article 13 of the Constitution of India.20. The High Court did not find that thedate to be arbitrary or discriminatory and was, thus, liable to be struck down being ultra vires Article 14 of the Constitution of India. It did not hold that the conditions precedent contained in the Rules prescribing procedure for such recruitment and/ or grant of power of relaxation have been complied with. An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted.It is in the aforementioned backdrop, the circular letters dated 30.12.1995 and 26.02.1996 are required to be construed. Although in the former, nodate as such has been mentioned and paragraph 4 thereof refers to retrenched employees, by reason whereof they were to be adjusted/on their equivalent posts in view of their qualification in Kumaun Mandal, the term `retrenched employees would carry the same meaning as contained in the rules. Furthermore, the circular letter dated 26.02.1996 was issued in continuation of the earlier letter dated 30.12.1995, which provided for adate. Both the circular letters are to be read together. If, thus, the respondents were kept outside the purview of the said circular letters, indisputably, they cannot be said to have derived any legal right so as to enable them to pray for issuance of a writ of or in the nature of mandamus.
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Shree Shyamji Transport Company Vs. F.C.I. | Conditions ……… (III) Tenderer whose Earnest Money Deposit and/or Security Deposit has been forfeited by Food Corporation of India or any Department of Central or State Government or any other Public Sector/Undertaking, during the last five years, will be ineligible. ?Clause 5. Details of Sister Concerns. …….. (i) The blacklisted parties by FCI or Govt./Quasi Govt. Organization will not be qualified. (ii) The parties whose EMD is forfeited by FCI will not be qualified. (iii) Food Corporation of India reserves the right not to consider parties having any dispute with Food Corporation of India in order to protect its interest.? 8. According to the respondents, EMD of the appellant- Shree Shyamji Transport Company was forfeited in the earlier tender of Road Transport Contract (RTC) -Hathin-Rajasthan, making the appellant ineligible to bid in the MLC tender and therefore, the bid of the appellant for MLC was rightly rejected by the respondents-FCI by Order dated 21.3.2012. 9. Insofar as RTC tender for Hathin–Rajasthan is concerned, it appears from the record and the observations of the High Court in CWP No. 21694/2011 that there was no intentional lapse on the part of the appellant and the delay in furnishing the security and the bank guarantee appeared to be on account of failure of banking operations. As per Clause 7 (iii) of MTF, the successful tenderer within fifteen days of acceptance of its tender, must furnish security deposit for the due performance of his obligation under the contract. While dismissing the writ petition CWP No. 21694/2011 on 6.3.2012, High Court observed that respondents-FCI did not have any intention to invoke that part of Clause 7 of the MTF indicating that the respondents-FCI preferred not to debar the appellant for the contract period. For proper appreciation of the contention of the parties, it is relevant to refer to the order of the High Court in CWP No.21694/2011 which reads as under:- ?In so far as the argument of the learned counsel for the petitioner apprehending debarment under clause 7 of the MTF is concerned, we are of the view that there is nothing in the impugned order dated 05.11.2011 (P- 16) which may indicate that the respondents have any intention to invoke that part of clause 7 against the petitioner. The reason for not invoking clause 7 of the MTF appears to be that there is no intentional lapse committed by the petitioner and the delay in furnishing the security and the bank guarantee appears to be on account of failure of banking operations. Therefore, we appreciate the respondents for not having invoked clause 7 of the MTF to debar the petitioner for the contract period. Therefore, the apprehension of the petitioner expressed through their counsel is ill founded.? 10. The respondents-FCI, in fact, filed Civil Miscellaneous Application No.4480/2012 seeking modification of the above order dated 6.3.2012 and prayed to hold that Clause 7(iii) of the MTF includes the debarring of the contractor and its partners i.e. the appellants from participating in any future tender of the FCI for a period of three years. By order dated 2.4.2012, the Division Bench of the High Court disposed of the said application and other applications reiterating its earlier order dated 6.3.2012 that FCI in its order dated 5.11.2011 (pertaining to RTC Hathin–Rajasthan) did not indicate any intention to invoke that part of Clause 7 of MTF to debar the appellants? firm for the contract period. The said Order of the High Court dated 2.4.2012 reads as under:- ?It is thus evident that this Bench has taken the view that in the order dated 05.11.2011 (P-16), the respondents did not indicate any intention of invoking that part of clause 7 of MTF which could debar the petitioner. The reason for adopting the aforesaid course has also been noted by the Division Bench by observing that there was no intentional lapse committed by the petitioner and the delay in furnishing the security and the bank guarantee was on account of failure of banking operations. The Bench, in fact, appreciated the respondents for not invoking the part of clause 7 of the MTF to debar the petitioner for the contract period.? 11. Insofar as RTC Hathin–Rajasthan is concerned, finding of the High Court that there was no intentional lapse on the part of the appellant and that delay in furnishing the security and bank guarantee was on account of failure of banking operation had attained finality. In response to appellants? apprehension of debarment under Clause 7 of MTF, Division Bench has recorded its finding that it appreciates that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. It appears that apprehension of debarment of appellants invoking Clause 7 was brought to the notice of the Court and the High Court did consider the same as a necessary point. In our view, the finding of the Court on the same is binding on FCI. Inspite of FCI?s modification petition, the finding that there was no intentional lapse on the part of the appellant-Shree Shyamji Transport Company, was neither modified nor set aside. That being so, while considering the appellant?s tender for MLC, FCI was not justified in invoking Clause 4 (III) of the MTF on the ground that the tender of the appellants pertaining to RTC Hathin–Rajasthan was earlier rejected and that appellant?s EMD was forfeited. High Court, in our view, has not properly appreciated its own observations in CWP No.21694/2011 that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. 12. The impugned tenders pertain to Mandi Labour Contract (MLC) for which the appellants submitted their bid on 2.3.2012 and the appellants have already suffered debarment for about three years. Considering the facts and circumstances of the case and in the light of High Court?s observation made in CWP No.21694/2011, in our view, the debarment of the appellants is not justifiable and the impugned order of the High Court cannot be sustained. 13. In | 1[ds]Insofar as RTC Hathin–Rajasthan is concerned, finding of the High Court that there was no intentional lapse on the part of the appellant and that delay in furnishing the security and bank guarantee was on account of failure of banking operation had attained finality. In response to appellants? apprehension of debarment under Clause 7 of MTF, Division Bench has recorded its finding that it appreciates that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. It appears that apprehension of debarment of appellants invoking Clause 7 was brought to the notice of the Court and the High Court did consider the same as a necessary point. In our view, the finding of the Court on the same is binding on FCI. Inspite of FCI?s modification petition, the finding that there was no intentional lapse on the part of the appellant-Shree Shyamji Transport Company, was neither modified nor set aside. That being so, while considering the appellant?s tender for MLC, FCI was not justified in invoking Clause 4 (III) of the MTF on the ground that the tender of the appellants pertaining to RTC Hathin–Rajasthan was earlier rejected and that appellant?s EMD was forfeited. High Court, in our view, has not properly appreciated its own observations in CWP No.21694/2011 that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract periodThe impugned tenders pertain to Mandi Labour Contract (MLC) for which the appellants submitted their bid on 2.3.2012 and the appellants have already suffered debarment for about three years. Considering the facts and circumstances of the case and in the light of High Court?s observation made in CWP No.21694/2011, in our view, the debarment of the appellants is not justifiable and the impugned order of the High Court cannot be sustained | 1 | 2,157 | 340 | ### 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:
Conditions ……… (III) Tenderer whose Earnest Money Deposit and/or Security Deposit has been forfeited by Food Corporation of India or any Department of Central or State Government or any other Public Sector/Undertaking, during the last five years, will be ineligible. ?Clause 5. Details of Sister Concerns. …….. (i) The blacklisted parties by FCI or Govt./Quasi Govt. Organization will not be qualified. (ii) The parties whose EMD is forfeited by FCI will not be qualified. (iii) Food Corporation of India reserves the right not to consider parties having any dispute with Food Corporation of India in order to protect its interest.? 8. According to the respondents, EMD of the appellant- Shree Shyamji Transport Company was forfeited in the earlier tender of Road Transport Contract (RTC) -Hathin-Rajasthan, making the appellant ineligible to bid in the MLC tender and therefore, the bid of the appellant for MLC was rightly rejected by the respondents-FCI by Order dated 21.3.2012. 9. Insofar as RTC tender for Hathin–Rajasthan is concerned, it appears from the record and the observations of the High Court in CWP No. 21694/2011 that there was no intentional lapse on the part of the appellant and the delay in furnishing the security and the bank guarantee appeared to be on account of failure of banking operations. As per Clause 7 (iii) of MTF, the successful tenderer within fifteen days of acceptance of its tender, must furnish security deposit for the due performance of his obligation under the contract. While dismissing the writ petition CWP No. 21694/2011 on 6.3.2012, High Court observed that respondents-FCI did not have any intention to invoke that part of Clause 7 of the MTF indicating that the respondents-FCI preferred not to debar the appellant for the contract period. For proper appreciation of the contention of the parties, it is relevant to refer to the order of the High Court in CWP No.21694/2011 which reads as under:- ?In so far as the argument of the learned counsel for the petitioner apprehending debarment under clause 7 of the MTF is concerned, we are of the view that there is nothing in the impugned order dated 05.11.2011 (P- 16) which may indicate that the respondents have any intention to invoke that part of clause 7 against the petitioner. The reason for not invoking clause 7 of the MTF appears to be that there is no intentional lapse committed by the petitioner and the delay in furnishing the security and the bank guarantee appears to be on account of failure of banking operations. Therefore, we appreciate the respondents for not having invoked clause 7 of the MTF to debar the petitioner for the contract period. Therefore, the apprehension of the petitioner expressed through their counsel is ill founded.? 10. The respondents-FCI, in fact, filed Civil Miscellaneous Application No.4480/2012 seeking modification of the above order dated 6.3.2012 and prayed to hold that Clause 7(iii) of the MTF includes the debarring of the contractor and its partners i.e. the appellants from participating in any future tender of the FCI for a period of three years. By order dated 2.4.2012, the Division Bench of the High Court disposed of the said application and other applications reiterating its earlier order dated 6.3.2012 that FCI in its order dated 5.11.2011 (pertaining to RTC Hathin–Rajasthan) did not indicate any intention to invoke that part of Clause 7 of MTF to debar the appellants? firm for the contract period. The said Order of the High Court dated 2.4.2012 reads as under:- ?It is thus evident that this Bench has taken the view that in the order dated 05.11.2011 (P-16), the respondents did not indicate any intention of invoking that part of clause 7 of MTF which could debar the petitioner. The reason for adopting the aforesaid course has also been noted by the Division Bench by observing that there was no intentional lapse committed by the petitioner and the delay in furnishing the security and the bank guarantee was on account of failure of banking operations. The Bench, in fact, appreciated the respondents for not invoking the part of clause 7 of the MTF to debar the petitioner for the contract period.? 11. Insofar as RTC Hathin–Rajasthan is concerned, finding of the High Court that there was no intentional lapse on the part of the appellant and that delay in furnishing the security and bank guarantee was on account of failure of banking operation had attained finality. In response to appellants? apprehension of debarment under Clause 7 of MTF, Division Bench has recorded its finding that it appreciates that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. It appears that apprehension of debarment of appellants invoking Clause 7 was brought to the notice of the Court and the High Court did consider the same as a necessary point. In our view, the finding of the Court on the same is binding on FCI. Inspite of FCI?s modification petition, the finding that there was no intentional lapse on the part of the appellant-Shree Shyamji Transport Company, was neither modified nor set aside. That being so, while considering the appellant?s tender for MLC, FCI was not justified in invoking Clause 4 (III) of the MTF on the ground that the tender of the appellants pertaining to RTC Hathin–Rajasthan was earlier rejected and that appellant?s EMD was forfeited. High Court, in our view, has not properly appreciated its own observations in CWP No.21694/2011 that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. 12. The impugned tenders pertain to Mandi Labour Contract (MLC) for which the appellants submitted their bid on 2.3.2012 and the appellants have already suffered debarment for about three years. Considering the facts and circumstances of the case and in the light of High Court?s observation made in CWP No.21694/2011, in our view, the debarment of the appellants is not justifiable and the impugned order of the High Court cannot be sustained. 13. In
### Response:
1
### Explanation:
Insofar as RTC Hathin–Rajasthan is concerned, finding of the High Court that there was no intentional lapse on the part of the appellant and that delay in furnishing the security and bank guarantee was on account of failure of banking operation had attained finality. In response to appellants? apprehension of debarment under Clause 7 of MTF, Division Bench has recorded its finding that it appreciates that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract period. It appears that apprehension of debarment of appellants invoking Clause 7 was brought to the notice of the Court and the High Court did consider the same as a necessary point. In our view, the finding of the Court on the same is binding on FCI. Inspite of FCI?s modification petition, the finding that there was no intentional lapse on the part of the appellant-Shree Shyamji Transport Company, was neither modified nor set aside. That being so, while considering the appellant?s tender for MLC, FCI was not justified in invoking Clause 4 (III) of the MTF on the ground that the tender of the appellants pertaining to RTC Hathin–Rajasthan was earlier rejected and that appellant?s EMD was forfeited. High Court, in our view, has not properly appreciated its own observations in CWP No.21694/2011 that FCI has not invoked Clause 7 of the MTF to debar the appellants for the contract periodThe impugned tenders pertain to Mandi Labour Contract (MLC) for which the appellants submitted their bid on 2.3.2012 and the appellants have already suffered debarment for about three years. Considering the facts and circumstances of the case and in the light of High Court?s observation made in CWP No.21694/2011, in our view, the debarment of the appellants is not justifiable and the impugned order of the High Court cannot be sustained
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STATE OF MADHYA PRADESH & ORS. Vs. AMIT SHRIVAS | that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees. 20. The moot point, thus, is that having been granted increments, could a person be said to have reached the status of a regular employee? In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service. 21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments. 22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law. 23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under: 3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme. 4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment. 24. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy. 25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary. 26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under: 2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly. 27. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court. | 0[ds]14. It is trite to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively. (State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr., (2012) 9 SCC 545 )15. Insofar as providing succor is concerned, unfortunately, since the demise of the late father of the respondent, 11 years have passed and really speaking, the aspect of providing succor to the family immediately does not survive.It is not in question that the Policy prevailing was one dated 18.8.2008. Clause 12.1 clearly proscribes work- charge/contingency fund and daily wager employees from compassionate appointment.16. In our view, the aforesaid plea misses the point of distinction between a work-charged employee, a permanent employee and a regular employee. The late father of the respondent was undoubtedly a work- charged employee and it is nobodys case that he has not been paid out of work-charged/contingency fund. He attained the status of a permanent employee on account of having completed 15 years of service, which entitled him to certain benefits including pension and krammonati. This will, however, not ipso facto give him the status of a regular employee.18. We are not required to labour much on the aforesaid issue and really speaking this issue is no more res integra in view of the judgment of this Court in Ram Naresh Rawat v. Ashwini Ray & Ors., (2017) 3 SCC 436 which opined that a permanent classification does not amount to regularisation. The case dealt with the aforesaid Standing Orders and it has been observed in paras 24, 26 & 27 as under:24. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of permanent employee can be treated as regular employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as permanent employee would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months service an employee gets right to be treated as permanent employee. Moreover, this Court has, as would be noticed now, drawn a distinction between permanent employee and regular employee.xxxx xxxx xxxx xxxx xxxx26. From the aforesaid, it follows that though a permanent employee has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay- scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale27. In view of the aforesaid, we do not find any substance in the contentions raised by the petitioners in these contempt petitions. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees.In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service.21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments.22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law.23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under:3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under:2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court. | 0 | 3,573 | 1,668 | ### 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:
that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees. 20. The moot point, thus, is that having been granted increments, could a person be said to have reached the status of a regular employee? In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service. 21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments. 22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law. 23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under: 3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme. 4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment. 24. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy. 25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary. 26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under: 2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly. 27. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court.
### Response:
0
### Explanation:
earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] 19. The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply, because in the present case, krammonati and increments were given. However, we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees, including the respondents father, it was specified that the same would not affect the posts of such employees.In order to answer this question, we may note that while considering this aspect in the aforesaid judgment, it was specifically opined that even if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms. We say so, not with the objective of giving a licence to the appellants to withdraw any of the benefits, which are already granted, and we make this unequivocally clear. However, we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service.21. Thus, the classification of the late father of the respondent as a permanent employee, and this distinction between a permanent status and a regular status appears to have been lost sight of in the impugned judgments.22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed, but then we have already observed that this will not give a right for perpetuating something which is not permissible in law.23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila & Anr. (2020) 2 SCC 729 We may usefully refer to paras 3, 4, & 5 as under:3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 , qua what would be the cut-off date for application of such scheme4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.. We are, thus, unable to give any relief to the respondent, much as we would have liked under the circumstances, but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy25. We may, however, notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular, the compassionate grant amount was increased from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on 31.8.2016, through which, a decision was taken that the dependents of deceased employees drawing a salary from the work- charged/contingency fund would be entitled to compassionate appointment, but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position, this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable, while the Circular says to the contrary26. We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under:2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.. The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court.
|
Chhugamal Rajpal Vs. S. P. Chaliha & Ors | the Income-tax Officer as well as the order of the Commissioner:"Report in connection with the starting of proceeding under Sec. 147 of the Income-tax Act, 1961.Name of DistrictWard of Circle .....A Ward. MuzaffarpurC. I. R. No .....303-C1. Name and address of the assesseeM/s. Chugamal Rajpal, Muzaffarpur2. StatusR. F3. Assessment Year for which notice under S. 148 is proposed to be issued1960-61.4. Whether it is a new case or one in which re-assessment (or recomputation) has to be made.Re-assessment.5. If a case of reassessment (or recomputation) the income (or loss or depreciation allowance) originally assessed/determined.Rs. 73,604/-6. Whether the case falls under Cl (a) or (b) of S. 147147 (a)7. Brief reasons for starting proceedings under S. 147 (indicate the items which are believed to have escaped assessment)Kindly see overleaf Sd/- S. P. Chaliha I. T. O., 30-4-66 A-Ward, Muzaffarpur.8. Whether the Commissioner is satisfied that it is a fit case for the issue of notice under S. 148.YesSd/- K. Narain13-5-66Commissioner of Income-tax.Bihar and Orissa, Patna9. Whether the Board is satisfied that it is a fit case for the issue of notice under S. 148.Secretary, Board of Revenue.During the year the assessee has shown to have taken loans from various Parties of Calcutta. From D. I.s Inv. No. A/P/Misc. (5) D. I./63 64/5623, dated 13-8-65, forwarded to this office under C. I. T. Bihar and Orissa, Patnas letter No. Inv. (Inv.) 15/6566/1953-2017dated Patna 24-9-65, it appears that these persons are name1enders and the transactions are bogus Hence proper investigation regarding these loans is necessary. The name of some of the persons from whom money is alleged to have taken on loan on Hundis are:1. Seth Bhagwan Singh Sricharan2. Lakha Singh Lal Singh3. Radhakissan Shyam Sunder.The amount of escapement involved amounts to Rs. 1,00,000/-.Sd/- S. P. Chaliha, 30-4-66.Income-tax OfficerA-Ward, Muzaffarpur".8. In his report the Income-tax Officer does not set out any reason for coming to the conclusion that this is a fit case to issue notice under Section 148. The material that he had before him for issuing notice under Section 148 is not mentioned in the report. In his report he vaguely refers to certain communications received by him from the C. I. T. Bihar and Orissa. He does not mention the facts contained in those communications. All that he says is that from those communications "it appears that these persons (alleged creditors) are name lenders and the transactions are bogus". He has not even come to a prima facie conclusion that the transactions to which he referred are not genuine transactions. He appears to have had only a vague feeling that they may be bogus transactions. Such a conclusion does not fulfil the requirements of Section 151 (2). What that provision requires is that he must give reasons for issuing a notice under Section 148.In other words he must have some prima facie grounds before him for taking action under Section 148. Further his report mentions:"Hence proper investigation regarding these loans is necessary". In other words his conclusion is that there is a case for investigating as to the truth of the alleged transactions. That is not the same thing as saying that there are reasons to issue notice under Sec. 148. Before issuing a notice under S. 148 the Income-tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Unless the requirements of Clauses (a) or (b) of Section 147 are satisfied, the Income Tax Officer has no jurisdiction to issue a notice under Section 148. From the report submitted by the Income-tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessees omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year: nor could it be said that he as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that Year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either Clause (a) or Clause (b) of Section 147. Therefore he could not have issued a notice under Section 148.Further the report submitted by him under Section 151 (2) does not mention any reason for coming to the conclusion that it is a fit case for the Issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question No. 8 in the report which reads Whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "yes" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148.The important safeguards provided in Sections 147 and 151 were lightly treated by the Income-tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under these previsions as of little importance. They have substituted the form for the substance." | 1[ds]8. In his report the Income-tax Officer does not set out any reason for coming to the conclusion that this is a fit case to issue notice under Section 148. The material that he had before him for issuing notice under Section 148 is not mentioned in the report. In his report he vaguely refers to certain communications received by him from the C. I. T. Bihar and Orissa. He does not mention the facts contained in those communications. All that he says is that from those communications "it appears that these persons (alleged creditors) are name lenders and the transactions are bogus". He has not even come to a prima facie conclusion that the transactions to which he referred are not genuine transactions. He appears to have had only a vague feeling that they may be bogus transactions. Such a conclusion does not fulfil the requirements of Section 151 (2). What that provision requires is that he must give reasons for issuing a notice under Section 148.In other words he must have some prima facie grounds before him for taking action under Section 148. Further his reportproper investigation regarding these loans is necessary". In other words his conclusion is that there is a case for investigating as to the truth of the alleged transactions. That is not the same thing as saying that there are reasons to issue notice under Sec. 148. Before issuing a notice under S. 148 the Income-tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Unless the requirements of Clauses (a) or (b) of Section 147 are satisfied, the Income Tax Officer has no jurisdiction to issue a notice under Section 148. From the report submitted by the Income-tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessees omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year: nor could it be said that he as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that Year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either Clause (a) or Clause (b) of Section 147. Therefore he could not have issued a notice under Section 148.Further the report submitted by him under Section 151 (2) does not mention any reason for coming to the conclusion that it is a fit case for the Issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question No. 8 in the report which reads Whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "yes" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148.The important safeguards provided in Sections 147 and 151 were lightly treated by the Income-tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under these previsions as of little importance. They have substituted the form for the substance. | 1 | 2,075 | 761 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the Income-tax Officer as well as the order of the Commissioner:"Report in connection with the starting of proceeding under Sec. 147 of the Income-tax Act, 1961.Name of DistrictWard of Circle .....A Ward. MuzaffarpurC. I. R. No .....303-C1. Name and address of the assesseeM/s. Chugamal Rajpal, Muzaffarpur2. StatusR. F3. Assessment Year for which notice under S. 148 is proposed to be issued1960-61.4. Whether it is a new case or one in which re-assessment (or recomputation) has to be made.Re-assessment.5. If a case of reassessment (or recomputation) the income (or loss or depreciation allowance) originally assessed/determined.Rs. 73,604/-6. Whether the case falls under Cl (a) or (b) of S. 147147 (a)7. Brief reasons for starting proceedings under S. 147 (indicate the items which are believed to have escaped assessment)Kindly see overleaf Sd/- S. P. Chaliha I. T. O., 30-4-66 A-Ward, Muzaffarpur.8. Whether the Commissioner is satisfied that it is a fit case for the issue of notice under S. 148.YesSd/- K. Narain13-5-66Commissioner of Income-tax.Bihar and Orissa, Patna9. Whether the Board is satisfied that it is a fit case for the issue of notice under S. 148.Secretary, Board of Revenue.During the year the assessee has shown to have taken loans from various Parties of Calcutta. From D. I.s Inv. No. A/P/Misc. (5) D. I./63 64/5623, dated 13-8-65, forwarded to this office under C. I. T. Bihar and Orissa, Patnas letter No. Inv. (Inv.) 15/6566/1953-2017dated Patna 24-9-65, it appears that these persons are name1enders and the transactions are bogus Hence proper investigation regarding these loans is necessary. The name of some of the persons from whom money is alleged to have taken on loan on Hundis are:1. Seth Bhagwan Singh Sricharan2. Lakha Singh Lal Singh3. Radhakissan Shyam Sunder.The amount of escapement involved amounts to Rs. 1,00,000/-.Sd/- S. P. Chaliha, 30-4-66.Income-tax OfficerA-Ward, Muzaffarpur".8. In his report the Income-tax Officer does not set out any reason for coming to the conclusion that this is a fit case to issue notice under Section 148. The material that he had before him for issuing notice under Section 148 is not mentioned in the report. In his report he vaguely refers to certain communications received by him from the C. I. T. Bihar and Orissa. He does not mention the facts contained in those communications. All that he says is that from those communications "it appears that these persons (alleged creditors) are name lenders and the transactions are bogus". He has not even come to a prima facie conclusion that the transactions to which he referred are not genuine transactions. He appears to have had only a vague feeling that they may be bogus transactions. Such a conclusion does not fulfil the requirements of Section 151 (2). What that provision requires is that he must give reasons for issuing a notice under Section 148.In other words he must have some prima facie grounds before him for taking action under Section 148. Further his report mentions:"Hence proper investigation regarding these loans is necessary". In other words his conclusion is that there is a case for investigating as to the truth of the alleged transactions. That is not the same thing as saying that there are reasons to issue notice under Sec. 148. Before issuing a notice under S. 148 the Income-tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Unless the requirements of Clauses (a) or (b) of Section 147 are satisfied, the Income Tax Officer has no jurisdiction to issue a notice under Section 148. From the report submitted by the Income-tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessees omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year: nor could it be said that he as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that Year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either Clause (a) or Clause (b) of Section 147. Therefore he could not have issued a notice under Section 148.Further the report submitted by him under Section 151 (2) does not mention any reason for coming to the conclusion that it is a fit case for the Issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question No. 8 in the report which reads Whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "yes" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148.The important safeguards provided in Sections 147 and 151 were lightly treated by the Income-tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under these previsions as of little importance. They have substituted the form for the substance."
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1
### Explanation:
8. In his report the Income-tax Officer does not set out any reason for coming to the conclusion that this is a fit case to issue notice under Section 148. The material that he had before him for issuing notice under Section 148 is not mentioned in the report. In his report he vaguely refers to certain communications received by him from the C. I. T. Bihar and Orissa. He does not mention the facts contained in those communications. All that he says is that from those communications "it appears that these persons (alleged creditors) are name lenders and the transactions are bogus". He has not even come to a prima facie conclusion that the transactions to which he referred are not genuine transactions. He appears to have had only a vague feeling that they may be bogus transactions. Such a conclusion does not fulfil the requirements of Section 151 (2). What that provision requires is that he must give reasons for issuing a notice under Section 148.In other words he must have some prima facie grounds before him for taking action under Section 148. Further his reportproper investigation regarding these loans is necessary". In other words his conclusion is that there is a case for investigating as to the truth of the alleged transactions. That is not the same thing as saying that there are reasons to issue notice under Sec. 148. Before issuing a notice under S. 148 the Income-tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Unless the requirements of Clauses (a) or (b) of Section 147 are satisfied, the Income Tax Officer has no jurisdiction to issue a notice under Section 148. From the report submitted by the Income-tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessees omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year: nor could it be said that he as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that Year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either Clause (a) or Clause (b) of Section 147. Therefore he could not have issued a notice under Section 148.Further the report submitted by him under Section 151 (2) does not mention any reason for coming to the conclusion that it is a fit case for the Issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question No. 8 in the report which reads Whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "yes" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148.The important safeguards provided in Sections 147 and 151 were lightly treated by the Income-tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under these previsions as of little importance. They have substituted the form for the substance.
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Ram Awadesh Singh Vs. Sumitra Devi & Ors | observed that the word defect in Section 36(4) included an omission to satisfy the details prescribed in the nomination. It further observed that the distinction laid down in English cases between "omission" and "inaccurate description" depended on the specific provisions of the English statute which did not obtain under the Indian law. This decision, again has no bearing on the point in issue.25. For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected. At this stage we may notice that prior to the amendment of the Act in 1956, improper rejection and improper acceptance were placed in the same category, Clause (c) of Section 100(1) as it stood then read :"If the Tribunal is of opinion........X X X X(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination; the Tribunal shall declare the election to be wholly void."27. This Court is Vasishth Narain Sharma v. Dev Chandra and Others, ((1955) 1 SCR 509 ) observed in the course of its judgment that where the person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that his nomination has materially affected the result of the election. This observation was not the ratio of that decision. That apart, after this observation was made, the Parliament has amended the relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination. It was urged on behalf on the appellant that in view of the amendment the observation made by this Court in Vasishth Narain Sharmas case (supra), can no more govern the point in issue. According to the learned counsel, clause (d) of Section 100(1) as it now stands definitely requires that in the case of improper acceptance of any nomination, the election petitioner must establish that the result of the election in so far as it concerns the returned candidate has been materially affected. He urged that the word any in Section 100(1) (d)(1) means every nomination. On the other hand it was urged on behalf of the respondent that the amendment of Section 100(1) did not affect the correctness of the observation made by this Court and that observation had been quoted by this Court in two cases arising under the amended provision. In view of our earlier finding about the validity of the appellants nomination, it is not necessary to decide the controversy relating to the interpretation of Section 100(1)(d).28. For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent. As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by the respondent. | 1[ds]As mentioned earlier, theappellant was fully qualified to be nominated for the election. The only thing said against his nomination is that his nomination paper was not properly filled in.We have earlier seen that a duty is imposed on the Returning Officer by sub-section (4) of Section 33 to look into the nomination paper when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper are the same as those entered in the electoral roll. In this case it is proved that the Returning Officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been removed from the electoral roll of Arrah Constituency. If he had noticed that fact, he would have asked the appellant either to correct the mistake or to file a fresh nomination paper. We have earlier noticed that the appellant filed his nomination paper on January 6, 1969, and the last date for filing the nomination paper was the 8th of that month. That being so, there would have been no difficulty for him either to correct the nomination papers filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters list but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance is an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that the is not otherwise disqualified. In other words those information relate to the proof of the required qualifications.14. It may also be noted that the Legislature itself has made distinction between the acceptance of a nomination and the rejection of a nomination. The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination. Further sub-section (2) of Section 36 says that "he may reject the nomination paper". It is further seen that the proviso to sub-clause (4) of Section 33 says that no accurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination.15. From a combined reading of Sections 33 and 36, it is clear that a mis-description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected.For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent.As mentioned earlier, theHigh Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by thelaw requires that the nomination of a candidate should be in the prescribed form and among others it should contain the name of the person nominated, his proposers name as well as the electoral roll numbers of the candidate and hisbeing so, there would have been no difficulty for him either to correct the nomination papers filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters list but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance is an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that the is not otherwise disqualified. In other words those information relate to the proof of the required qualifications. | 1 | 4,812 | 1,528 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
observed that the word defect in Section 36(4) included an omission to satisfy the details prescribed in the nomination. It further observed that the distinction laid down in English cases between "omission" and "inaccurate description" depended on the specific provisions of the English statute which did not obtain under the Indian law. This decision, again has no bearing on the point in issue.25. For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected. At this stage we may notice that prior to the amendment of the Act in 1956, improper rejection and improper acceptance were placed in the same category, Clause (c) of Section 100(1) as it stood then read :"If the Tribunal is of opinion........X X X X(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination; the Tribunal shall declare the election to be wholly void."27. This Court is Vasishth Narain Sharma v. Dev Chandra and Others, ((1955) 1 SCR 509 ) observed in the course of its judgment that where the person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that his nomination has materially affected the result of the election. This observation was not the ratio of that decision. That apart, after this observation was made, the Parliament has amended the relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination. It was urged on behalf on the appellant that in view of the amendment the observation made by this Court in Vasishth Narain Sharmas case (supra), can no more govern the point in issue. According to the learned counsel, clause (d) of Section 100(1) as it now stands definitely requires that in the case of improper acceptance of any nomination, the election petitioner must establish that the result of the election in so far as it concerns the returned candidate has been materially affected. He urged that the word any in Section 100(1) (d)(1) means every nomination. On the other hand it was urged on behalf of the respondent that the amendment of Section 100(1) did not affect the correctness of the observation made by this Court and that observation had been quoted by this Court in two cases arising under the amended provision. In view of our earlier finding about the validity of the appellants nomination, it is not necessary to decide the controversy relating to the interpretation of Section 100(1)(d).28. For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent. As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by the respondent.
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### Explanation:
acceptance of a nomination and the rejection of a nomination. The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination. Further sub-section (2) of Section 36 says that "he may reject the nomination paper". It is further seen that the proviso to sub-clause (4) of Section 33 says that no accurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination.15. From a combined reading of Sections 33 and 36, it is clear that a mis-description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected.For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent.As mentioned earlier, theHigh Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by thelaw requires that the nomination of a candidate should be in the prescribed form and among others it should contain the name of the person nominated, his proposers name as well as the electoral roll numbers of the candidate and hisbeing so, there would have been no difficulty for him either to correct the nomination papers filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters list but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance is an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that the is not otherwise disqualified. In other words those information relate to the proof of the required qualifications.
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Allahabad Bank & Ors Vs. Krishan Pal Singh | R.SUBHASH REDDY,J. 1. Leave granted. 2. This appeal is preferred by the appellant – Bank, aggrieved by the Order dated 25.04.2019 of the High Court of Allahabad, Lucknow Bench, passed in Service Single No. 692 of 1998. By the aforesaid order, the High Court has quashed the award dated 07.10.1997, passed by the Central Government Industrial Tribunal– cum–Labour Court so far as it relates to refusal of reinstatement of the respondent with back wages and issued directions, directing the appellants to reinstate the respondent with all consequential benefits. 3. The sole respondent herein was appointed as Clerk-cum-Cashier in the appellant – Allahabad Bank on 23.09.1985 and his service was confirmed on 24.03.1986. During the year 1989, he was posted in Aurangabad Branch, District Lakhimpur Kheri, Uttar Pradesh. On 08.02.1989, there was fire accident in the Bank and an FIR was registered with regard to burning incident of Bank records by unknown persons. Suspecting the complicity of the respondent, he was placed under suspension by order dated 13.02.1989 and disciplinary proceedings were initiated against him. Ultimately, on completion of enquiry, the respondent was dismissed from service vide Order dated 22.08.1991. The departmental appeal, preferred by him was rejected by Appellate Authority on 27.02.1992 and further, Mercy Appeal was also rejected vide Order dated 27.05.1992. 4. The respondent raised the industrial dispute and the same was referred to the Central Government Industrial Tribunal–cum–Labour Court, Kanpur in Industrial Dispute No. 98 of 1994. The Industrial Tribunal–cum–Labour Court has passed the Award dated 07.10.1997 and held that misconduct alleged against the respondent is not proved, but on the ground that a case is made out by the management of loss of confidence, has ordered payment of compensation of Rs.30,000/- in lieu of reinstatement. The respondent – workman, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court by way of Writ Petition in Service Single No. 692 of 1998. The High Court, by impugned Order dated 25.04.2019, has ordered reinstatement of the respondent with all consequential benefits. The said Order is subject matter of challenge in this Appeal. While issuing notice, vide Order dated 23.08.2019, this Court granted interim relief against the direction of reinstatement with back wages, ordered by the High Court. 5. Heard Mr. Rajesh Kumar Gautam, learned counsel appearing for the appellant – Bank and Mr. Rakesh Taneja, learned counsel appearing for the respondent. 6. Order of dismissal was passed by the Bank, alleging involvement of the respondent in the incident relating to burning of relevant Bank records. One Mr. Balak Ram was prime accused in the aforesaid incident, and the respondent being a friend of said Mr. Balak Ram, was suspected on the ground that one of the witnesses namely Mr. Ram Singh, MW-1, examined in the disciplinary proceedings, has deposed that Mr. Balak Ram and others assembled together on the date of incident. The Industrial Tribunal has found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. The Industrial Tribunal has found that the Bank has lost confidence on the respondent and ordered payment of monetary compensation of Rs.30,000/- in lieu of reinstatement. When the said award was challenged before the High Court, it has found that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. By further recording a finding that the appellants have not challenged the award passed by the Industrial Tribunal, has allowed the Writ Petition by directing reinstatement with all consequential benefits. 7. In this case, it is to be noted that the respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991. Including the suspension period, he was in Bank service for about six years before dismissal. Thereafter, he was unsuccessful before the departmental Appellate Authority and the Industrial Tribunal ordered payment of lump sum monetary compensation of Rs.30,000/- in lieu of reinstatement. 8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law. | 0[ds]6. Order of dismissal was passed by the Bank, alleging involvement of the respondent in the incident relating to burning of relevant Bank records. One Mr. Balak Ram was prime accused in the aforesaid incident, and the respondent being a friend of said Mr. Balak Ram, was suspected on the ground that one of the witnesses namely Mr. Ram Singh, MW-1, examined in the disciplinary proceedings, has deposed that Mr. Balak Ram and others assembled together on the date of incident. The Industrial Tribunal has found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. The Industrial Tribunal has found that the Bank has lost confidence on the respondent and ordered payment of monetary compensation of Rs.30,000/- in lieu of reinstatement. When the said award was challenged before the High Court, it has found that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. By further recording a finding that the appellants have not challenged the award passed by the Industrial Tribunal, has allowed the Writ Petition by directing reinstatement with all consequential benefits.7. In this case, it is to be noted that the respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991. Including the suspension period, he was in Bank service for about six years before dismissal. Thereafter, he was unsuccessful before the departmental Appellate Authority and the Industrial Tribunal ordered payment of lump sum monetary compensation of Rs.30,000/- in lieu of reinstatement.8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law. | 0 | 886 | 427 | ### Instruction:
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R.SUBHASH REDDY,J. 1. Leave granted. 2. This appeal is preferred by the appellant – Bank, aggrieved by the Order dated 25.04.2019 of the High Court of Allahabad, Lucknow Bench, passed in Service Single No. 692 of 1998. By the aforesaid order, the High Court has quashed the award dated 07.10.1997, passed by the Central Government Industrial Tribunal– cum–Labour Court so far as it relates to refusal of reinstatement of the respondent with back wages and issued directions, directing the appellants to reinstate the respondent with all consequential benefits. 3. The sole respondent herein was appointed as Clerk-cum-Cashier in the appellant – Allahabad Bank on 23.09.1985 and his service was confirmed on 24.03.1986. During the year 1989, he was posted in Aurangabad Branch, District Lakhimpur Kheri, Uttar Pradesh. On 08.02.1989, there was fire accident in the Bank and an FIR was registered with regard to burning incident of Bank records by unknown persons. Suspecting the complicity of the respondent, he was placed under suspension by order dated 13.02.1989 and disciplinary proceedings were initiated against him. Ultimately, on completion of enquiry, the respondent was dismissed from service vide Order dated 22.08.1991. The departmental appeal, preferred by him was rejected by Appellate Authority on 27.02.1992 and further, Mercy Appeal was also rejected vide Order dated 27.05.1992. 4. The respondent raised the industrial dispute and the same was referred to the Central Government Industrial Tribunal–cum–Labour Court, Kanpur in Industrial Dispute No. 98 of 1994. The Industrial Tribunal–cum–Labour Court has passed the Award dated 07.10.1997 and held that misconduct alleged against the respondent is not proved, but on the ground that a case is made out by the management of loss of confidence, has ordered payment of compensation of Rs.30,000/- in lieu of reinstatement. The respondent – workman, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court by way of Writ Petition in Service Single No. 692 of 1998. The High Court, by impugned Order dated 25.04.2019, has ordered reinstatement of the respondent with all consequential benefits. The said Order is subject matter of challenge in this Appeal. While issuing notice, vide Order dated 23.08.2019, this Court granted interim relief against the direction of reinstatement with back wages, ordered by the High Court. 5. Heard Mr. Rajesh Kumar Gautam, learned counsel appearing for the appellant – Bank and Mr. Rakesh Taneja, learned counsel appearing for the respondent. 6. Order of dismissal was passed by the Bank, alleging involvement of the respondent in the incident relating to burning of relevant Bank records. One Mr. Balak Ram was prime accused in the aforesaid incident, and the respondent being a friend of said Mr. Balak Ram, was suspected on the ground that one of the witnesses namely Mr. Ram Singh, MW-1, examined in the disciplinary proceedings, has deposed that Mr. Balak Ram and others assembled together on the date of incident. The Industrial Tribunal has found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. The Industrial Tribunal has found that the Bank has lost confidence on the respondent and ordered payment of monetary compensation of Rs.30,000/- in lieu of reinstatement. When the said award was challenged before the High Court, it has found that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. By further recording a finding that the appellants have not challenged the award passed by the Industrial Tribunal, has allowed the Writ Petition by directing reinstatement with all consequential benefits. 7. In this case, it is to be noted that the respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991. Including the suspension period, he was in Bank service for about six years before dismissal. Thereafter, he was unsuccessful before the departmental Appellate Authority and the Industrial Tribunal ordered payment of lump sum monetary compensation of Rs.30,000/- in lieu of reinstatement. 8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law.
### Response:
0
### Explanation:
6. Order of dismissal was passed by the Bank, alleging involvement of the respondent in the incident relating to burning of relevant Bank records. One Mr. Balak Ram was prime accused in the aforesaid incident, and the respondent being a friend of said Mr. Balak Ram, was suspected on the ground that one of the witnesses namely Mr. Ram Singh, MW-1, examined in the disciplinary proceedings, has deposed that Mr. Balak Ram and others assembled together on the date of incident. The Industrial Tribunal has found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. The Industrial Tribunal has found that the Bank has lost confidence on the respondent and ordered payment of monetary compensation of Rs.30,000/- in lieu of reinstatement. When the said award was challenged before the High Court, it has found that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. By further recording a finding that the appellants have not challenged the award passed by the Industrial Tribunal, has allowed the Writ Petition by directing reinstatement with all consequential benefits.7. In this case, it is to be noted that the respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991. Including the suspension period, he was in Bank service for about six years before dismissal. Thereafter, he was unsuccessful before the departmental Appellate Authority and the Industrial Tribunal ordered payment of lump sum monetary compensation of Rs.30,000/- in lieu of reinstatement.8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law.
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National Building Const. Corpn Vs. S Raghunathan | approach of the High Court was wholly erroneous and the reasoning is equally fallacious.30. As pointed out by this Court in Food Corporation of India v. Kamdhenu Cattlefield (Cattlefeed?) Industries, (1993) 1 SCC 71 , which has already been referred to above, the question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. It was also observed that this question had to be determined not according to the claimants perception but in larger public interest.31. Incidentally, in this case, the question of "Legitimate Expectation" was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely, the High Court allowed this plea at the stage of argument and allowed the petitions only on the grounds of "Legitimate Expectation" without least realising that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative.32. That apart, the High Court suffered from a misconception that whenever there was a revision of the pay scales, Foreign Allowance as also the other allowances were correspondingly raised on the basis of the revised basic salary. Respondents had served on deputation with the NBCC in their foreign projects at Iraq from 1982-83 to 1986-87 and during this period the pay structure was revised only once to implement the recommendations of the Fourth Pay Commission. Was there any other revision in the pay structure of the respondents or any of them during their tenure with the NBCC; if so, when ? To whom was the benefit of such revision available ? Who are those other Officers and employees serving on deputation in a foreign country who were benefitted by any revision in the pay structure during the period 1982-83 to 1986-87 ? These are the few questions which legitimately arise, and unless there is material on record to answer these questions, the observations of the High Court that whenever there was a revision in the pay scales, Foreign Allowance was correspondingly increased and, therefore, the respondents had come to entertain "Legitimate Expectation", are wholly speculative, besides being erroneous. 33. Foreign Allowance could also not be treated as a salary component or akin to Deputation (Duty) Allowance as it was in the nature of a residuary perk regulated by the provisions of F.R. 51(2). 34. Fundamental Rule 51 provides as under :- "F.R. 51. (1) When a Government servant is, with proper sanction, temporarily deputated for duty out of India either in connection with the post held by him in India or in connection with any special duty on which he may temporarily be placed, he may be allowed by the President to draw during the period of deputation the same pay which he would have drawn had he remained on duty in India : Provided that a Government servant, who is placed on deputation while already on leave out of India on average pay, may be required by the President to continue to be on leave, in which case he shall be given during that period, in additional to his leave salary, an honorarium of one-sixth of the pay which he would have drawn had he remained on duty in India; the cost of passages from and to India shall be borne by him. (2) A Government servant on deputation may also be granted a compensatory allowance in a foreign country of such amount as the President may think fit. (3) The foreign exchange equivalent of the pay, honorarium or compensatory allowance admissible under sub-rule (1) or sub-rule (2) shall be calculated at such rate of exchange as the President may by order prescribe." 35. Sub-rule (2) of Rule 51, quoted above, gives a discretion to the Government to pay to the Government servant, on deputation in a foreign country, such compensatory allowance as may be thought fit by the President. The payment of compensatory allowance as also the quantum of such allowance is left to the absolute discretion of the President. It was for this reason perhaps that the High Power Committee did not make any recommendation in respect of Foreign Allowance and left it to the discretion of NBCC to decide whether it would be payable or not at all, and if payable, at what rate. The Ministry of External Affairs had already fixed Foreign Allowance under F.R. 51(2) for its officers and other staff working in its Missions abroad. The NBCC, therefore, issued the order dated 15th October, 1990 specifying the benefits which would be available to its employees and deputationists with effect from 1.1.1986. It was in this order that it was indicated that Foreign Allowance would continue to be payable at the rate of 125% of the basic pay (pre-revised) as on or upto 31.12.1985. There was thus no increase in the Foreign Allowance payable to the respondents; nor was the amount reduced in any way. 36. NBCC had taken a policy decision on account of strange situations and conditions prevailing in Iraq where respondents were deputed on foreign projects assigned to NBCC, that Foreign Allowance would be payable only on the original basic salary of the respondents and not on the salary as revised on account of the recommendations of the Fourth Pay Commission. In such a situation, the policy decision shall have the effect of displacing the doctrine of "Legitimate Expectation", particularly as the decision was based on objective assessment of the prevailing circumstances including the financial stringency in which Iraq came to be placed. There is, therefore, no element of arbitrariness in that decision. 37. The respondents were the prisoners of hope. They attempted to water the leaves when the tree itself was found cut off at its root. This is the least that can be said of this case which had no pleadings and yet the plea prevailed. | 1[ds]29. The above extracts indicate the reasoning and the approach of the High Court. They indicate the precise ground on which the claim of the respondents was allowed. We are constrained to observe that the approach of the High Court was wholly erroneous and the reasoning is equally fallacious.30. As pointed out by this Court in Food Corporation of India v. Kamdhenu Cattlefield (Cattlefeed?) Industries, (1993) 1 SCC 71 , which has already been referred to above, the question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. It was also observed that this question had to be determined not according to the claimants perception but in larger public interest.31. Incidentally, in this case, the question of "Legitimate Expectation" was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely, the High Court allowed this plea at the stage of argument and allowed the petitions only on the grounds of "Legitimate Expectation" without least realising that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative.32. That apart, the High Court suffered from a misconception that whenever there was a revision of the pay scales, Foreign Allowance as also the other allowances were correspondingly raised on the basis of the revised basic salary. Respondents had served on deputation with the NBCC in their foreign projects at Iraq from87 and during this period the pay structure was revised only once to implement the recommendations of the Fourth Pay Commission. Was there any other revision in the pay structure of the respondents or any of them during their tenure with the NBCC; if so, when ? To whom was the benefit of such revision available ? Who are those other Officers and employees serving on deputation in a foreign country who were benefitted by any revision in the pay structure during the period87 ? These are the few questions which legitimately arise, and unless there is material on record to answer these questions, the observations of the High Court that whenever there was a revision in the pay scales, Foreign Allowance was correspondingly increased and, therefore, the respondents had come to entertain "Legitimate Expectation", are wholly speculative, besides being erroneous. | 1 | 6,303 | 456 | ### Instruction:
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approach of the High Court was wholly erroneous and the reasoning is equally fallacious.30. As pointed out by this Court in Food Corporation of India v. Kamdhenu Cattlefield (Cattlefeed?) Industries, (1993) 1 SCC 71 , which has already been referred to above, the question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. It was also observed that this question had to be determined not according to the claimants perception but in larger public interest.31. Incidentally, in this case, the question of "Legitimate Expectation" was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely, the High Court allowed this plea at the stage of argument and allowed the petitions only on the grounds of "Legitimate Expectation" without least realising that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative.32. That apart, the High Court suffered from a misconception that whenever there was a revision of the pay scales, Foreign Allowance as also the other allowances were correspondingly raised on the basis of the revised basic salary. Respondents had served on deputation with the NBCC in their foreign projects at Iraq from 1982-83 to 1986-87 and during this period the pay structure was revised only once to implement the recommendations of the Fourth Pay Commission. Was there any other revision in the pay structure of the respondents or any of them during their tenure with the NBCC; if so, when ? To whom was the benefit of such revision available ? Who are those other Officers and employees serving on deputation in a foreign country who were benefitted by any revision in the pay structure during the period 1982-83 to 1986-87 ? These are the few questions which legitimately arise, and unless there is material on record to answer these questions, the observations of the High Court that whenever there was a revision in the pay scales, Foreign Allowance was correspondingly increased and, therefore, the respondents had come to entertain "Legitimate Expectation", are wholly speculative, besides being erroneous. 33. Foreign Allowance could also not be treated as a salary component or akin to Deputation (Duty) Allowance as it was in the nature of a residuary perk regulated by the provisions of F.R. 51(2). 34. Fundamental Rule 51 provides as under :- "F.R. 51. (1) When a Government servant is, with proper sanction, temporarily deputated for duty out of India either in connection with the post held by him in India or in connection with any special duty on which he may temporarily be placed, he may be allowed by the President to draw during the period of deputation the same pay which he would have drawn had he remained on duty in India : Provided that a Government servant, who is placed on deputation while already on leave out of India on average pay, may be required by the President to continue to be on leave, in which case he shall be given during that period, in additional to his leave salary, an honorarium of one-sixth of the pay which he would have drawn had he remained on duty in India; the cost of passages from and to India shall be borne by him. (2) A Government servant on deputation may also be granted a compensatory allowance in a foreign country of such amount as the President may think fit. (3) The foreign exchange equivalent of the pay, honorarium or compensatory allowance admissible under sub-rule (1) or sub-rule (2) shall be calculated at such rate of exchange as the President may by order prescribe." 35. Sub-rule (2) of Rule 51, quoted above, gives a discretion to the Government to pay to the Government servant, on deputation in a foreign country, such compensatory allowance as may be thought fit by the President. The payment of compensatory allowance as also the quantum of such allowance is left to the absolute discretion of the President. It was for this reason perhaps that the High Power Committee did not make any recommendation in respect of Foreign Allowance and left it to the discretion of NBCC to decide whether it would be payable or not at all, and if payable, at what rate. The Ministry of External Affairs had already fixed Foreign Allowance under F.R. 51(2) for its officers and other staff working in its Missions abroad. The NBCC, therefore, issued the order dated 15th October, 1990 specifying the benefits which would be available to its employees and deputationists with effect from 1.1.1986. It was in this order that it was indicated that Foreign Allowance would continue to be payable at the rate of 125% of the basic pay (pre-revised) as on or upto 31.12.1985. There was thus no increase in the Foreign Allowance payable to the respondents; nor was the amount reduced in any way. 36. NBCC had taken a policy decision on account of strange situations and conditions prevailing in Iraq where respondents were deputed on foreign projects assigned to NBCC, that Foreign Allowance would be payable only on the original basic salary of the respondents and not on the salary as revised on account of the recommendations of the Fourth Pay Commission. In such a situation, the policy decision shall have the effect of displacing the doctrine of "Legitimate Expectation", particularly as the decision was based on objective assessment of the prevailing circumstances including the financial stringency in which Iraq came to be placed. There is, therefore, no element of arbitrariness in that decision. 37. The respondents were the prisoners of hope. They attempted to water the leaves when the tree itself was found cut off at its root. This is the least that can be said of this case which had no pleadings and yet the plea prevailed.
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### Explanation:
29. The above extracts indicate the reasoning and the approach of the High Court. They indicate the precise ground on which the claim of the respondents was allowed. We are constrained to observe that the approach of the High Court was wholly erroneous and the reasoning is equally fallacious.30. As pointed out by this Court in Food Corporation of India v. Kamdhenu Cattlefield (Cattlefeed?) Industries, (1993) 1 SCC 71 , which has already been referred to above, the question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. It was also observed that this question had to be determined not according to the claimants perception but in larger public interest.31. Incidentally, in this case, the question of "Legitimate Expectation" was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely, the High Court allowed this plea at the stage of argument and allowed the petitions only on the grounds of "Legitimate Expectation" without least realising that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative.32. That apart, the High Court suffered from a misconception that whenever there was a revision of the pay scales, Foreign Allowance as also the other allowances were correspondingly raised on the basis of the revised basic salary. Respondents had served on deputation with the NBCC in their foreign projects at Iraq from87 and during this period the pay structure was revised only once to implement the recommendations of the Fourth Pay Commission. Was there any other revision in the pay structure of the respondents or any of them during their tenure with the NBCC; if so, when ? To whom was the benefit of such revision available ? Who are those other Officers and employees serving on deputation in a foreign country who were benefitted by any revision in the pay structure during the period87 ? These are the few questions which legitimately arise, and unless there is material on record to answer these questions, the observations of the High Court that whenever there was a revision in the pay scales, Foreign Allowance was correspondingly increased and, therefore, the respondents had come to entertain "Legitimate Expectation", are wholly speculative, besides being erroneous.
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K. K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others | KRISHNA IYER, J.1. These two appeals by special leave relate to the same subject matter, namely the validity of the election to the Bar Council of Madhya Pradesh of twenty returned candidates. We are not going into the grounds of the challenge nor do we propose to express any view thereon since we are disposed to allow the appeals on the short ground that the High Court fell into a grievous error in entertaining the writ petition.2. Briefly the facts are as follows. The election to the Bar Council of Madhya Pradesh took place under the Indian Advocates Act. There are rules framed by the Bar Council of Madhya Pradesh with the approval of the Bar Council of India regulating the disputes regarding election. There is specific provision regarding the constitution of election tribunals, the period of limitation within which election petitions should be filed and other connected matters. Rule 31 of the Election Rules framed by the Bar Council of Madhya Pradesh governs the situation. The powers of the tribunal so far as we are able to see are wide. Moreover, Rule 31(4) states :All disputes arising under the above sub-rule shall be decided by a Tribunal to be known as an Election Tribunal...........It is represented before us that within the period of limitation prescribed by Rule 31(1), viz., 15 days, an election petition has been filed before the Tribunal constituted under the rules. Notwithstanding the pendency of such an election petition, four months after the period of limitation had expired for filing an election petition, two voters (one of whom was a defeated candidate) moved the High Court under Articles 226 and 227 of the Constitution challenging the validity of the election. The High Court was confronted by the argument from the respondents side that in the presence of an equally efficacious remedy it was not proper for the High Court to entertain a writ petition. However, after noticing the decision which lays down that when there is an appropriate or equally efficacious remedy the writ jurisdiction should not be exercised, the Court nevertheless interfered. The reasoning which prevailed with it was in its own words :We are of the view that where the entire election is challenged an election petition would not be an appropriate remedy. In any case, it cannot be considered as an equally efficacious remedy.Earlier the same court had held that election disputes whether they related to one candidate or more than one would be covered by the election rules and in particular Rule 31. Having held so the somewhat inconsistent attitude expressed in the observations quoted passes our comprehension.3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of election, therefore, a writ petition will lie, is a fallacious arguments. It is important to notice what the High Court has overlooked that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be, is illustrated by this very case.4. In this view we hold that the High Court fell into an error in entertaining the petitions and so we allow these appeals. We need hardly say that the tribunal created by the Bar Council takes note of the fact that as considerable lapse of time has already occurred it must now move quickly to hear and dispose of the election disputes. We express no opinion on the reasoning of the High Court on the merits of the case.5. | 1[ds]3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of election, therefore, a writ petition will lie, is a fallacious arguments. It is important to notice what the High Court has overlooked that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described asIt is unfortunate that an election petition, which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be, is illustrated by this very case.4. In this view we hold that the High Court fell into an error in entertaining the petitions and so we allow these appeals. We need hardly say that the tribunal created by the Bar Council takes note of the fact that as considerable lapse of time has already occurred it must now move quickly to hear and dispose of the election disputes. We express no opinion on the reasoning of the High Court on the merits of the case. | 1 | 898 | 424 | ### Instruction:
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KRISHNA IYER, J.1. These two appeals by special leave relate to the same subject matter, namely the validity of the election to the Bar Council of Madhya Pradesh of twenty returned candidates. We are not going into the grounds of the challenge nor do we propose to express any view thereon since we are disposed to allow the appeals on the short ground that the High Court fell into a grievous error in entertaining the writ petition.2. Briefly the facts are as follows. The election to the Bar Council of Madhya Pradesh took place under the Indian Advocates Act. There are rules framed by the Bar Council of Madhya Pradesh with the approval of the Bar Council of India regulating the disputes regarding election. There is specific provision regarding the constitution of election tribunals, the period of limitation within which election petitions should be filed and other connected matters. Rule 31 of the Election Rules framed by the Bar Council of Madhya Pradesh governs the situation. The powers of the tribunal so far as we are able to see are wide. Moreover, Rule 31(4) states :All disputes arising under the above sub-rule shall be decided by a Tribunal to be known as an Election Tribunal...........It is represented before us that within the period of limitation prescribed by Rule 31(1), viz., 15 days, an election petition has been filed before the Tribunal constituted under the rules. Notwithstanding the pendency of such an election petition, four months after the period of limitation had expired for filing an election petition, two voters (one of whom was a defeated candidate) moved the High Court under Articles 226 and 227 of the Constitution challenging the validity of the election. The High Court was confronted by the argument from the respondents side that in the presence of an equally efficacious remedy it was not proper for the High Court to entertain a writ petition. However, after noticing the decision which lays down that when there is an appropriate or equally efficacious remedy the writ jurisdiction should not be exercised, the Court nevertheless interfered. The reasoning which prevailed with it was in its own words :We are of the view that where the entire election is challenged an election petition would not be an appropriate remedy. In any case, it cannot be considered as an equally efficacious remedy.Earlier the same court had held that election disputes whether they related to one candidate or more than one would be covered by the election rules and in particular Rule 31. Having held so the somewhat inconsistent attitude expressed in the observations quoted passes our comprehension.3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of election, therefore, a writ petition will lie, is a fallacious arguments. It is important to notice what the High Court has overlooked that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be, is illustrated by this very case.4. In this view we hold that the High Court fell into an error in entertaining the petitions and so we allow these appeals. We need hardly say that the tribunal created by the Bar Council takes note of the fact that as considerable lapse of time has already occurred it must now move quickly to hear and dispose of the election disputes. We express no opinion on the reasoning of the High Court on the merits of the case.5.
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3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of election, therefore, a writ petition will lie, is a fallacious arguments. It is important to notice what the High Court has overlooked that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described asIt is unfortunate that an election petition, which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repurcussions of entertaining writ petitions are where they should not be, is illustrated by this very case.4. In this view we hold that the High Court fell into an error in entertaining the petitions and so we allow these appeals. We need hardly say that the tribunal created by the Bar Council takes note of the fact that as considerable lapse of time has already occurred it must now move quickly to hear and dispose of the election disputes. We express no opinion on the reasoning of the High Court on the merits of the case.
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Raj Kumar Prasad Tamarkar Vs. State of Bihar & Another | just possible that even if the revolver had been thrown, the same would have been found immediately. Mr. Banerjee contended that the room was not in the exclusive possession of the respondent. It may be that the room was not in the exclusive possession of the respondent in the sense that he had not been living there permanently but it had not been denied or disputed that at the relevant time the deceased and the respondent were alone in the room. No other person was present there. Even the witnesses were not cross-examined in that behalf. No suggestion even had been given to that effect. It was argued that if the respondent intended to kill the deceased, he could have done after 17.07.1996, viz., after Bidai ceremony took place. The very fact that the respondent brought a revolver is itself a pointer to the fact that he wanted to kill the deceased at one point of time or the other. He might have thought that Bidai ceremony would be held on 13.07.1996 or 14.07.1996. When it was postponed, he might have found out an occasion to kill her. Under what circumstances, the occurrence took place is not known. Respondent, it would bear repetition to state, did not open his mouth. He was entitled to exercise the right of silence. That he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence, but the legal position that the same would be considered to be a circumstance against him is not in dispute. It was also not a case where it can be said that the incident took place in a heat of passion. There is no evidence that there had been a sudden quarrel. Even the High Court said so in paragraph 11 of its judgment. It is, therefore, not a case where the respondent can be held to be guilty for commission of an offence under Section 304 Part II of the Indian Penal Code. 30. In Sandhya Jadav (Smt.) v. State of Maharashtra [(2006) 4 SCC 653] , this Court held: "The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel..." 31. [See also Pappu v. State of M.P. (2006) 7 SCC 391 , para 13, Vadla Chandraiah v. State of Andhra Pradesh, 2006 (14) SCALE 108 ] 32. In State of Andhra Pradesh v. Rayavarapu Punnayya and Another [(1976) 4 SCC 382] , this Court held: "In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the greatest form of culpable homicide which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the 1st part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304." 33. [See also Laxman v. State of M.P., JT 2006 (12) SC 495 ]. It is true that neither any fingerprint expert nor any ballistic expert had been examined. Even the blood found on the revolver had not been sent for chemical examination, but, in our opinion, the same by itself would not negate the circumstances which have proved the guilt of the respondent beyond all reasonable doubt. 34. We are aware of the limitations of this Court. It is well settled that ordinarily this Court would not interfere with the judgment of acquittal if two views are possible but having regard to the fact that the High Court has failed to take into consideration the relevant facts and misapplied the legal principles, we think it fit to exercise our jurisdiction under Article 136 of the Constitution of India as there has been serious miscarriage of justice. The jurisdiction of this Court in a case of this nature is also well known. 35. In State of U.P. v. Nawab Singh (Dead) and Others, [(2005) 9 SCC 84] , this Court held: "It is well-settled that when reasoning of the High Court is perverse, this Court may set aside the judgment of acquittal and restore the judgment of conviction and sentence upon the accused. (See Ramanand Yadav v. Prabhu Nath Jha). It is further well-settled that there is no embargo on the appellate court to review evidence upon which an order of acquittal is based." 36. [See also Prithvi (Minor) v. Mam Raj and Others, (2004) 13 SCC 279 , State of U.P. v. Satish, (2005) 3 SCC 114 ]. 37. For the reasons aforementioned, we | 1[ds]It is true that neither any fingerprint expert nor any ballistic expert had been examined. Even the blood found on the revolver had not been sent for chemical examination, but, in our opinion, the same by itself would not negate the circumstances which have proved the guilt of the respondent beyond all reasonableIt is well settled that ordinarily this Court would not interfere with the judgment of acquittal if two views are possible but having regard to the fact that the High Court has failed to take into consideration the relevant facts and misapplied the legal | 1 | 4,878 | 104 | ### 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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just possible that even if the revolver had been thrown, the same would have been found immediately. Mr. Banerjee contended that the room was not in the exclusive possession of the respondent. It may be that the room was not in the exclusive possession of the respondent in the sense that he had not been living there permanently but it had not been denied or disputed that at the relevant time the deceased and the respondent were alone in the room. No other person was present there. Even the witnesses were not cross-examined in that behalf. No suggestion even had been given to that effect. It was argued that if the respondent intended to kill the deceased, he could have done after 17.07.1996, viz., after Bidai ceremony took place. The very fact that the respondent brought a revolver is itself a pointer to the fact that he wanted to kill the deceased at one point of time or the other. He might have thought that Bidai ceremony would be held on 13.07.1996 or 14.07.1996. When it was postponed, he might have found out an occasion to kill her. Under what circumstances, the occurrence took place is not known. Respondent, it would bear repetition to state, did not open his mouth. He was entitled to exercise the right of silence. That he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence, but the legal position that the same would be considered to be a circumstance against him is not in dispute. It was also not a case where it can be said that the incident took place in a heat of passion. There is no evidence that there had been a sudden quarrel. Even the High Court said so in paragraph 11 of its judgment. It is, therefore, not a case where the respondent can be held to be guilty for commission of an offence under Section 304 Part II of the Indian Penal Code. 30. In Sandhya Jadav (Smt.) v. State of Maharashtra [(2006) 4 SCC 653] , this Court held: "The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel..." 31. [See also Pappu v. State of M.P. (2006) 7 SCC 391 , para 13, Vadla Chandraiah v. State of Andhra Pradesh, 2006 (14) SCALE 108 ] 32. In State of Andhra Pradesh v. Rayavarapu Punnayya and Another [(1976) 4 SCC 382] , this Court held: "In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the greatest form of culpable homicide which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the 1st part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304." 33. [See also Laxman v. State of M.P., JT 2006 (12) SC 495 ]. It is true that neither any fingerprint expert nor any ballistic expert had been examined. Even the blood found on the revolver had not been sent for chemical examination, but, in our opinion, the same by itself would not negate the circumstances which have proved the guilt of the respondent beyond all reasonable doubt. 34. We are aware of the limitations of this Court. It is well settled that ordinarily this Court would not interfere with the judgment of acquittal if two views are possible but having regard to the fact that the High Court has failed to take into consideration the relevant facts and misapplied the legal principles, we think it fit to exercise our jurisdiction under Article 136 of the Constitution of India as there has been serious miscarriage of justice. The jurisdiction of this Court in a case of this nature is also well known. 35. In State of U.P. v. Nawab Singh (Dead) and Others, [(2005) 9 SCC 84] , this Court held: "It is well-settled that when reasoning of the High Court is perverse, this Court may set aside the judgment of acquittal and restore the judgment of conviction and sentence upon the accused. (See Ramanand Yadav v. Prabhu Nath Jha). It is further well-settled that there is no embargo on the appellate court to review evidence upon which an order of acquittal is based." 36. [See also Prithvi (Minor) v. Mam Raj and Others, (2004) 13 SCC 279 , State of U.P. v. Satish, (2005) 3 SCC 114 ]. 37. For the reasons aforementioned, we
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It is true that neither any fingerprint expert nor any ballistic expert had been examined. Even the blood found on the revolver had not been sent for chemical examination, but, in our opinion, the same by itself would not negate the circumstances which have proved the guilt of the respondent beyond all reasonableIt is well settled that ordinarily this Court would not interfere with the judgment of acquittal if two views are possible but having regard to the fact that the High Court has failed to take into consideration the relevant facts and misapplied the legal
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VIKAS KISHANRAO GAWALI Vs. STATE OF MAHARASHTRA & ORS | in hand, the special leave petition deserves to be dismissed. 13. That no new additional facts or documents, which are not part of the record are stated or annexed in the counter affidavit. Hence this Counter Affidavit. Drawn by: Rahul Chitnis, Advocate. (Deponent) Sd/- (D.D. Shinde) (emphasis supplied) 22. As matter of fact, this affidavit plainly concedes that in case of some local bodies, the reservation has far exceeded 50 per cent with nominal seats for general category. At this stage, it may be relevant to mention that the consolidated affidavit refers to the previous affidavit(s) dated 5.11.2019 and 13.03.2020 which, however, do not contain any other statement, or any additional information, requiring scrutiny in the context of the issues answered in this decision. The consolidated affidavit also refers to three interlocutory applications filed in the disposed of SLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filed for direction to allow impleadment of Registrar General of India, Ministry of Home Affairs, Government of India and Secretary, Ministry of Social Justice and Welfare as party respondents in the SLP. That was because the State had sought directions against that party to furnish census data on the basis of which analysis could be done by the State for providing reservation to OBCs in the local bodies, in the elections due in 2019/2020. That relief was claimed by the State in IA No.188318 of 2019. Since the said elections are completed, the State is free to pursue with the Union of India for getting requisite information which can be then made available to the dedicated Commission to be established by it for conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness of the concerned groups. As regards IA No.108915 of 2019 referred to in the consolidated affidavit, the relief claimed was to defer the impending elections in the concerned Zilla Parishads and Panchayat Samitis. Those elections having been completed in 2019/2020, obviously the relief as claimed is worked out. We, therefore, fail to understand as to why the State Government wants further hearing of the matter on such flimsy and specious grounds. To observe sobriety, we say no more. 23. We, however, appreciate the stand taken by the State Election Commission which is in conformity with the exposition of the Constitution Bench of this Court; and that it had issued impugned notifications by making it amply clear to all concerned that the elections were being conducted as directed by this Court and would be subject to the outcome of the present writ petitions. The elections were held only after this Court directed the State Election Commission to ensure that the elections in the concerned Zilla Parishads and Panchayat Samitis of as many as five districts (out of 36 districts) of the State, were not being conducted even after more than two years from the expiry of term of the outgoing councillors/members of the concerned local bodies. 24. The State Election Commission had invited our attention to the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding reservation for OBCs finds place in other State enactments concerning the establishment of Village Panchayat, Municipal Council, Nagar Panchayat, Corporation, etc. Needless to observe that the view taken in this judgment would apply with full force to the interpretation and application of the provisions of the stated Act(s) and the State Authorities must immediately move into action to take corrective and follow up measures in right earnest including to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy (supra), for providing reservation in favour of OBCs. 25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is an enabling provision and needs to be read down to mean that it may be invoked only upon complying with the triple conditions (mentioned in paragraph 12 above) as specified by the Constitution Bench of this Court, before notifying the seats as reserved for OBC category in the concerned local bodies. Further, we quash and set aside the impugned notifications to the extent they provide for reservation of seats for OBCs being void and non est in law including the follow up actions taken on that basis. In other words, election results of OBC candidates which had been made subject to the outcome of these writ petitions including so notified in the concerned election programme issued by the State Election Commission, are declared as non est in law and the vacancy of seat(s) caused on account of this declaration be forthwith filled up by the State Election Commission with general/open candidate(s) for the remainder term of the concerned local bodies, by issuing notification in that regard. 26. As a consequence of this declaration and direction, all acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who have vacated seats in terms of this decision, shall not be affected in any manner. For, they be deemed to have vacated their seat upon pronouncement of this judgment, prospectively. This direction is being issued in exercise of plenary power under Article 142 of the Constitution of India to do complete justice. 27. It was urged that this Court ought not to exercise plenary power under Article 142 and abjure from disturbing the completed elections. However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions. That was clearly notified by the State Election Commission in the election programme published by it at the relevant time, in consonance with the directions given by this Court vide interim orders. Therefore, the reliefs as claimed and being granted in terms of this judgment, are in consonance with liberty given by this Court. | 1[ds]4. We may straight away advert to the decision in K. Krishna Murthy (supra). In paragraph 9 of the decision, this Court formulated two questions for its consideration, the same read thus:9. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner:(i) Whether Article 243-D(6) and Article 243-T(6) are constitutionally valid since they enable reservations in favour of backward classes for the purpose of occupying seats and chairperson positions in panchayats and municipalities respectively?(ii) Whether Article 243-D(4) and Article 243-T(4) are constitutionally valid since they enable the reservation of chairperson positions in panchayats and municipalities respectively?5. As regards the discussion on the question of validity of reservation in favour of backward classes, the Court proceeded to examine the same in paragraphs 58 to 67 of the reported decision. The essence of the view expressed by the Constitution Bench on the said question is that Articles 243-D(6) and 243-T(6) of the Constitution of India are merely enabling provisions and it would be improper to strike them down as violative of the equality clause. At the same time, the Court noted that these provisions did not provide guidance on how to identify the backward classes and neither do they specify any principle for the quantum of such reservations. Instead, discretion has been conferred on the State legislatures to design and confer reservation benefits in favour of backward classes. While dealing with the provisions pertaining to reservations in favour of backward classes concerning the States of Karnataka and Uttar Pradesh wherein the quantum of reservation was 33 per cent and 27 per cent respectively, the Court noted that objections can be raised even with regard to similar provisions of some other State legislations. The real concern was about overbreadth in the State legislations and while dealing with that aspect in paragraphs 60 to 63, the Court noted thus:60. There is no doubt in our minds that excessive and disproportionate reservations provided by the State legislations can indeed be the subject-matter of specific challenges before the courts. However, the same does not justify the striking down of Articles 243-D(6) and 243-T(6) which are constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness.61. . It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against overbreadth. In respect of the objections against the Karnataka Panchayat Raj Act, 1993, all that we can refer to is the Chinnappa Reddy Commission Report (1990) which reflects the position as it existed twenty years ago. In the absence of updated empirical data, it is well- nigh impossible for the courts to decide whether the reservations in favour of OBC groups are proportionate or not.62. Similarly, in the case of the State of Uttar Pradesh, the claims about the extent of the OBC population are based on the 1991 census. Reluctant as we are to leave these questions open, it goes without saying that the petitioners are at liberty to raise specific challenges against the State legislations if they can point out flaws in the identification of backward classes with the help of updated empirical data.63. As noted earlier, social and economic backwardness does not necessarily coincide with political backwardness. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Articles 243-D(6) and 243-T(6) need not necessarily be coterminous with the Socially and Educationally Backward Classes (SEBCs) [for the purpose of Article 15(4)] or even the backward classes that are underrepresented in government jobs [for the purpose of Article 16(4)]. It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education and employment need reservations in the sphere of local self-government. This is because the barriers to political participation are not of the same character as barriers that limit access to education and employment. This calls for some fresh thinking and policy-making with regard to reservations in local self-government.6. Again, in paragraph 64, the Court noted about the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government. For that, the thumb rule is that of proportionate reservation. The Court hastened to add a word of caution, which in, essence, is the declaration of the legal position that the upper ceiling of 50 per cent (quantitative limitation) with respect to vertical reservations in favour of SCs/STs/OBCs taken together should not be breached. This has been made amply clear and restated even in paragraph 67 of the reported decision, which reads thus:67. In the recent decision reported as Union of India v. Rakesh Kumar [(2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961 : (2010) 1 Scale 281 ] this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.On that analysis, the Court in conclusion noted as follows:82. In view of the above, our conclusions are:(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Article 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self-government. Even when made, they need not be for a period corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State legislations.(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of backward classes under Article 243-D(6) and Article 243-T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self- government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.(v) The reservation of chairperson posts in the manner contemplated by Articles 243-D(4) and 243- T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment.7. On a fair reading of the exposition in the reported decision, what follows is that the reservation for OBCs is only a statutory dispensation to be provided by the State legislations unlike the constitutional reservation regarding SCs/STs which is linked to the proportion of population. As regards the State legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50 per cent of the seats in the concerned local bodies. In case, constitutional reservation provided for SCs and STs were to consume the entire 50 per cent of seats in the concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all. To put it differently, the quantum of reservation for OBCs ought to be local body specific and be so provisioned to ensure that it does not exceed the quantitative limitation of 50 per cent (aggregate) of vertical reservation of seats for SCs/STs/OBCs taken together.8. Besides this inviolable quantitative limitation, the State Authorities are obliged to fulfil other pre-conditions before reserving seats for OBCs in the local bodies. The foremost requirement is to collate adequate materials or documents that could help in identification of backward classes for the purpose of reservation by conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness in the concerned local bodies through an independent dedicated Commission established for that purpose. Thus, the State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission about the imperativeness of such reservation. Further, it cannot be a static arrangement. It must be reviewed from time to time so as not to violate the principle of overbreadth of such reservation (which in itself is a relative concept and is dynamic). Besides, it must be confined only to the extent it is proportionate and within the quantitative limitation as is predicated by the Constitution Bench of this Court.9. Notably, the Constitution Bench adverted to the fact that provisions of most of the State legislations may require a relook, but left the question regarding validity thereof open with liberty to raise specific challenges thereto by pointing out flaws in the identification of the backward classes in reference to the empirical data. Further, the Constitution Bench expressed a sanguine hope that the concerned States ought to take a fresh look at policy making with regard to reservations in local self-government in light of the said decision, whilst ensuring that such a policy adheres to the upper ceiling including by modifying their legislations — so as to reduce the quantum of the existing quotas in favour of OBCs and make it realistic and measurable on objective parameters.10. Despite this declaration of law and general observations cum directions issued to all the States on the subject matter, the legislature of the State of Maharashtra did not take a relook at the existing provisions which fell foul of the law declared by the Constitution Bench of this Court. As a matter of fact, couple of writ petitions(W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018) came to be filed in the Bombay High Court in which solemn assurance was given on behalf of the State of Maharashtra that necessary corrective measures in light of the decision of this Court, will be taken in right earnest. The situation, however, remained unchanged.11. As a matter of fact, no material is forthcoming as to on what basis the quantum of reservation for OBCs was fixed at 27 per cent, when it was inserted by way of amendment in 1994. Indeed, when the amendment was effected in 1994, there was no guideline in existence regarding the modality of fixing the limits of reserved seats for OBCs as noted in the decision of the Constitution Bench in K. Krishna Murthy (supra). After that decision, however, it was imperative for the State to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness and on the basis of recommendations of that Commission take follow up steps including to amend the existing statutory dispensation, such as to amend Section 12(2)(c) of the 1961 Act. There is nothing on record that such a dedicated Commission had been set up until now. On the other hand, the stand taken by the State Government on affidavit, before this Court, would reveal that requisite information for undertaking such empirical inquiry has not been made available to it by the Union of India. In light of that stand of the State Government, it is unfathomable as to how the respondents can justify the notifications issued by the State Election Commission to reserve seats for OBCs in the concerned local bodies in respect of which elections have been held in the year December 2019/January 2020, which notifications have been challenged by way of present writ petitions. This Court had allowed the elections to proceed subject to the outcome of the present writ petitions.12. Be that as it may, it is indisputable that the triple test/conditions required to be complied by the State before reserving seats in the local bodies for OBCs has not been done so far. To wit, (1) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and (3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994, the plain language does give an impression that uniform and rigid quantum of 27 per cent of the total seats across the State need to be set apart by way of reservation in favour of OBCs. In light of the dictum of the Constitution Bench, such a rigid provision cannot be sustained much less having uniform application to all the local bodies within the State. Instead, contemporaneous empirical inquiry must be undertaken to identify the quantum qua local body or local body specific.14. In our opinion, the provision in the form of Section 12(2)(c) can be saved by reading it down, to mean that reservation in favour of OBCs in the concerned local bodies may be notified to the extent, that it does not exceed 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression shall be preceding 27 per cent occurring in Section 12(2)(c), be construed as may be including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. On such interpretation, Section 12(2)(c) can be saved and at the same time, the law declared by the Constitution Bench of this Court can be effectuated in its letter and spirit.15. The argument of the respondent-State that the reservations in favour of OBCs must be linked to population, is very wide and tenuous. That plea if countenanced, will be in the teeth of the dictum of the Constitution Bench of this Court wherein it has been noted and rejected. The Court has expounded about the distinction in the matter of reservation in favour of SCs and STs on the one hand, which is a constitutional reservation linked to population unlike in the case of OBCs which is a statutory dispensation. Therefore, the latter reservation for OBCs must be proportionate in the context of nature and implications of backwardness and in any case, is permissible only to the extent it does not exceed the aggregate of 50 per cent of the total seats in the local bodies reserved for SCs/STs/OBCs taken together.16. Indeed, this Court had allowed the State Election Commission to conduct elections on the basis of old dispensation in terms of orders dated 28.08.2019, 07.11.2019 and 13.12.2019, by recording prima facie view as noted in the order dated 18.12.2019. However, it was made amply clear that the elections in respect of five districts (Nagpur, Washim, Akola, Dhule and Nandurbar) were allowed to proceed subject to the outcome of present writ petition(s) questioning the validity of Section 12(2)(c) of the 1961 Act. Thus understood, the respondents cannot take benefit of the prima facie observations to repel the challenge to the old dispensation being continued despite the decision of the Constitution Bench of this Court and more particularly, to the notifications reserving seats for OBC candidates exceeding the quantitative limitation of aggregate 50 per cent of total seats in the local bodies concerned.17. In light of the finding recorded hitherto (that no inquiry much less contemporaneous rigorous empirical inquiry into the nature and implications of backwardness by a dedicate Commission established by the State for the purpose has been undertaken), it is not open to the State to fall back on Section 12(2)(c) as enacted in 1994. That provision, as aforementioned, is an enabling provision and would become functional and operational only upon fulfilling triple test as specified by the Constitution Bench of this Court. That is the sine qua non or the quintessence for exercise of power to reserve seats for OBCs in the local bodies. Indeed, the exercise of power to reserve seats for OBCs springs from Section 12(2)(c) of the 1961 Act, but that is hedged by conditions and limitations specified by the Constitution Bench of this Court and would not get ignited until such time.18. Thus understood, the impugned notifications issued by the State Election Commission reserving seats for OBCs in the concerned local bodies, suffer from the vice of foundational jurisdictional error. The impugned notification(s) to the extent it provides for reservation for OBCs in the concerned local bodies, is, therefore, void and without authority of law.19. A priori, the elections conducted by the State Election Commission on the basis of such notifications concerning reserved OBC seats alone are vitiated and must be regarded as non est in the eyes of law from its inception in the wake of declaration of law in that regard by the Constitution Bench of this Court. The fact that it will impact large number of seats throughout the five districts or elsewhere where such elections are conducted in 2019/2020, would make no difference. For, such reservation was not permissible in law unless the essential steps, as propounded by the Constitution Bench of this Court, had been taken before issuing the election notifications, that too only to the extent of quantitative limitation. This position would apply in full measure, to all elections conducted in respect of reserved OBC seats by the State Election Commission duly notifying that the same will be subject to the outcome of these writ petitions. The State Election Commission must proceed to take follow up steps and notify elections for seats vacated in terms of this decision for being filled up by open/general category candidates for the remainder tenure of the concerned Gram Panchayats and Samitis. We are inclined to take this view as it is not possible to identify which of the reserved seat for OBCs in the concerned local body would fall foul of the law declared by the Constitution Bench of this Court, amongst the total seats reserved for OBCs.We are not impressed by this hyper technical objection. It is true that petitioners in two writ petitions had first approached the High Court, but still the issue under consideration needs to be answered at the instance of petitioners in other two writ petitions praying for the same reliefs. Indeed, it would have been possible for us to request the High Court to decide the issue in the first instance but as the matter essentially pertains to the width of declaration and directions given by the Constitution Bench of this Court in K. Krishna Murthy (supra) and its implementation in its letter and spirit, we deem it appropriate to answer the issue under consideration.In our opinion, no fruitful purpose will be served by showing that indulgence. For, the matter is capable of and is being disposed of on the basis of undisputed fact that before instructing the State Election Commission to reserve seats for OBC groups in the local bodies, no attempt was made by the State Government to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness, and then to act upon the report of the Commission. That fact is reinforced from the consolidated affidavit filed by the respondent-State in SLP (Civil) No. 33904 of 2017, which was the lead matter until it was disposed of on 17.02.2021, after analogous hearing with the present writ petitions.22. As matter of fact, this affidavit plainly concedes that in case of some local bodies, the reservation has far exceeded 50 per cent with nominal seats for general category. At this stage, it may be relevant to mention that the consolidated affidavit refers to the previous affidavit(s) dated 5.11.2019 and 13.03.2020 which, however, do not contain any other statement, or any additional information, requiring scrutiny in the context of the issues answered in this decision. The consolidated affidavit also refers to three interlocutory applications filed in the disposed of SLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filed for direction to allow impleadment of Registrar General of India, Ministry of Home Affairs, Government of India and Secretary, Ministry of Social Justice and Welfare as party respondents in the SLP. That was because the State had sought directions against that party to furnish census data on the basis of which analysis could be done by the State for providing reservation to OBCs in the local bodies, in the elections due in 2019/2020. That relief was claimed by the State in IA No.188318 of 2019. Since the said elections are completed, the State is free to pursue with the Union of India for getting requisite information which can be then made available to the dedicated Commission to be established by it for conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness of the concerned groups. As regards IA No.108915 of 2019 referred to in the consolidated affidavit, the relief claimed was to defer the impending elections in the concerned Zilla Parishads and Panchayat Samitis. Those elections having been completed in 2019/2020, obviously the relief as claimed is worked out. We, therefore, fail to understand as to why the State Government wants further hearing of the matter on such flimsy and specious grounds. To observe sobriety, we say no more.23. We, however, appreciate the stand taken by the State Election Commission which is in conformity with the exposition of the Constitution Bench of this Court; and that it had issued impugned notifications by making it amply clear to all concerned that the elections were being conducted as directed by this Court and would be subject to the outcome of the present writ petitions. The elections were held only after this Court directed the State Election Commission to ensure that the elections in the concerned Zilla Parishads and Panchayat Samitis of as many as five districts (out of 36 districts) of the State, were not being conducted even after more than two years from the expiry of term of the outgoing councillors/members of the concerned local bodies.24. The State Election Commission had invited our attention to the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding reservation for OBCs finds place in other State enactments concerning the establishment of Village Panchayat, Municipal Council, Nagar Panchayat, Corporation, etc. Needless to observe that the view taken in this judgment would apply with full force to the interpretation and application of the provisions of the stated Act(s) and the State Authorities must immediately move into action to take corrective and follow up measures in right earnest including to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy (supra), for providing reservation in favour of OBCs.25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is an enabling provision and needs to be read down to mean that it may be invoked only upon complying with the triple conditions (mentioned in paragraph 12 above) as specified by the Constitution Bench of this Court, before notifying the seats as reserved for OBC category in the concerned local bodies. Further, we quash and set aside the impugned notifications to the extent they provide for reservation of seats for OBCs being void and non est in law including the follow up actions taken on that basis. In other words, election results of OBC candidates which had been made subject to the outcome of these writ petitions including so notified in the concerned election programme issued by the State Election Commission, are declared as non est in law and the vacancy of seat(s) caused on account of this declaration be forthwith filled up by the State Election Commission with general/open candidate(s) for the remainder term of the concerned local bodies, by issuing notification in that regard.26. As a consequence of this declaration and direction, all acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who have vacated seats in terms of this decision, shall not be affected in any manner. For, they be deemed to have vacated their seat upon pronouncement of this judgment, prospectively. This direction is being issued in exercise of plenary power under Article 142 of the Constitution of India to do complete justice.However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions.That was clearly notified by the State Election Commission in the election programme published by it at the relevant time, in consonance with the directions given by this Court vide interim orders. Therefore, the reliefs as claimed and being granted in terms of this judgment, are in consonance with liberty given by this Court. | 1 | 8,387 | 5,076 | ### Instruction:
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in hand, the special leave petition deserves to be dismissed. 13. That no new additional facts or documents, which are not part of the record are stated or annexed in the counter affidavit. Hence this Counter Affidavit. Drawn by: Rahul Chitnis, Advocate. (Deponent) Sd/- (D.D. Shinde) (emphasis supplied) 22. As matter of fact, this affidavit plainly concedes that in case of some local bodies, the reservation has far exceeded 50 per cent with nominal seats for general category. At this stage, it may be relevant to mention that the consolidated affidavit refers to the previous affidavit(s) dated 5.11.2019 and 13.03.2020 which, however, do not contain any other statement, or any additional information, requiring scrutiny in the context of the issues answered in this decision. The consolidated affidavit also refers to three interlocutory applications filed in the disposed of SLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filed for direction to allow impleadment of Registrar General of India, Ministry of Home Affairs, Government of India and Secretary, Ministry of Social Justice and Welfare as party respondents in the SLP. That was because the State had sought directions against that party to furnish census data on the basis of which analysis could be done by the State for providing reservation to OBCs in the local bodies, in the elections due in 2019/2020. That relief was claimed by the State in IA No.188318 of 2019. Since the said elections are completed, the State is free to pursue with the Union of India for getting requisite information which can be then made available to the dedicated Commission to be established by it for conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness of the concerned groups. As regards IA No.108915 of 2019 referred to in the consolidated affidavit, the relief claimed was to defer the impending elections in the concerned Zilla Parishads and Panchayat Samitis. Those elections having been completed in 2019/2020, obviously the relief as claimed is worked out. We, therefore, fail to understand as to why the State Government wants further hearing of the matter on such flimsy and specious grounds. To observe sobriety, we say no more. 23. We, however, appreciate the stand taken by the State Election Commission which is in conformity with the exposition of the Constitution Bench of this Court; and that it had issued impugned notifications by making it amply clear to all concerned that the elections were being conducted as directed by this Court and would be subject to the outcome of the present writ petitions. The elections were held only after this Court directed the State Election Commission to ensure that the elections in the concerned Zilla Parishads and Panchayat Samitis of as many as five districts (out of 36 districts) of the State, were not being conducted even after more than two years from the expiry of term of the outgoing councillors/members of the concerned local bodies. 24. The State Election Commission had invited our attention to the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding reservation for OBCs finds place in other State enactments concerning the establishment of Village Panchayat, Municipal Council, Nagar Panchayat, Corporation, etc. Needless to observe that the view taken in this judgment would apply with full force to the interpretation and application of the provisions of the stated Act(s) and the State Authorities must immediately move into action to take corrective and follow up measures in right earnest including to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy (supra), for providing reservation in favour of OBCs. 25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is an enabling provision and needs to be read down to mean that it may be invoked only upon complying with the triple conditions (mentioned in paragraph 12 above) as specified by the Constitution Bench of this Court, before notifying the seats as reserved for OBC category in the concerned local bodies. Further, we quash and set aside the impugned notifications to the extent they provide for reservation of seats for OBCs being void and non est in law including the follow up actions taken on that basis. In other words, election results of OBC candidates which had been made subject to the outcome of these writ petitions including so notified in the concerned election programme issued by the State Election Commission, are declared as non est in law and the vacancy of seat(s) caused on account of this declaration be forthwith filled up by the State Election Commission with general/open candidate(s) for the remainder term of the concerned local bodies, by issuing notification in that regard. 26. As a consequence of this declaration and direction, all acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who have vacated seats in terms of this decision, shall not be affected in any manner. For, they be deemed to have vacated their seat upon pronouncement of this judgment, prospectively. This direction is being issued in exercise of plenary power under Article 142 of the Constitution of India to do complete justice. 27. It was urged that this Court ought not to exercise plenary power under Article 142 and abjure from disturbing the completed elections. However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions. That was clearly notified by the State Election Commission in the election programme published by it at the relevant time, in consonance with the directions given by this Court vide interim orders. Therefore, the reliefs as claimed and being granted in terms of this judgment, are in consonance with liberty given by this Court.
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local bodies, no attempt was made by the State Government to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness, and then to act upon the report of the Commission. That fact is reinforced from the consolidated affidavit filed by the respondent-State in SLP (Civil) No. 33904 of 2017, which was the lead matter until it was disposed of on 17.02.2021, after analogous hearing with the present writ petitions.22. As matter of fact, this affidavit plainly concedes that in case of some local bodies, the reservation has far exceeded 50 per cent with nominal seats for general category. At this stage, it may be relevant to mention that the consolidated affidavit refers to the previous affidavit(s) dated 5.11.2019 and 13.03.2020 which, however, do not contain any other statement, or any additional information, requiring scrutiny in the context of the issues answered in this decision. The consolidated affidavit also refers to three interlocutory applications filed in the disposed of SLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filed for direction to allow impleadment of Registrar General of India, Ministry of Home Affairs, Government of India and Secretary, Ministry of Social Justice and Welfare as party respondents in the SLP. That was because the State had sought directions against that party to furnish census data on the basis of which analysis could be done by the State for providing reservation to OBCs in the local bodies, in the elections due in 2019/2020. That relief was claimed by the State in IA No.188318 of 2019. Since the said elections are completed, the State is free to pursue with the Union of India for getting requisite information which can be then made available to the dedicated Commission to be established by it for conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness of the concerned groups. As regards IA No.108915 of 2019 referred to in the consolidated affidavit, the relief claimed was to defer the impending elections in the concerned Zilla Parishads and Panchayat Samitis. Those elections having been completed in 2019/2020, obviously the relief as claimed is worked out. We, therefore, fail to understand as to why the State Government wants further hearing of the matter on such flimsy and specious grounds. To observe sobriety, we say no more.23. We, however, appreciate the stand taken by the State Election Commission which is in conformity with the exposition of the Constitution Bench of this Court; and that it had issued impugned notifications by making it amply clear to all concerned that the elections were being conducted as directed by this Court and would be subject to the outcome of the present writ petitions. The elections were held only after this Court directed the State Election Commission to ensure that the elections in the concerned Zilla Parishads and Panchayat Samitis of as many as five districts (out of 36 districts) of the State, were not being conducted even after more than two years from the expiry of term of the outgoing councillors/members of the concerned local bodies.24. The State Election Commission had invited our attention to the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding reservation for OBCs finds place in other State enactments concerning the establishment of Village Panchayat, Municipal Council, Nagar Panchayat, Corporation, etc. Needless to observe that the view taken in this judgment would apply with full force to the interpretation and application of the provisions of the stated Act(s) and the State Authorities must immediately move into action to take corrective and follow up measures in right earnest including to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy (supra), for providing reservation in favour of OBCs.25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is an enabling provision and needs to be read down to mean that it may be invoked only upon complying with the triple conditions (mentioned in paragraph 12 above) as specified by the Constitution Bench of this Court, before notifying the seats as reserved for OBC category in the concerned local bodies. Further, we quash and set aside the impugned notifications to the extent they provide for reservation of seats for OBCs being void and non est in law including the follow up actions taken on that basis. In other words, election results of OBC candidates which had been made subject to the outcome of these writ petitions including so notified in the concerned election programme issued by the State Election Commission, are declared as non est in law and the vacancy of seat(s) caused on account of this declaration be forthwith filled up by the State Election Commission with general/open candidate(s) for the remainder term of the concerned local bodies, by issuing notification in that regard.26. As a consequence of this declaration and direction, all acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who have vacated seats in terms of this decision, shall not be affected in any manner. For, they be deemed to have vacated their seat upon pronouncement of this judgment, prospectively. This direction is being issued in exercise of plenary power under Article 142 of the Constitution of India to do complete justice.However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions.That was clearly notified by the State Election Commission in the election programme published by it at the relevant time, in consonance with the directions given by this Court vide interim orders. Therefore, the reliefs as claimed and being granted in terms of this judgment, are in consonance with liberty given by this Court.
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Devanagere Cotton Mills Ltd.Devanagere Vs. The Deputy Commissioner, Chitradurgaand Another | powers under S. 6 of the Act called upon the managing agents of the appellants by letter dated January 13, 1956, to submit in the prescribed from a statement showing the total quantity of cotton consumed or processed in the factory. The appellants declined to carry out the requisition and filed a petition in the High Court of Mysore for a writ of mandamus, prohibition or other appropriate writ, direction or order restraining the Deputy Commissioner, Chitradurga and the State of Mysore from "collecting assessments under the Indian Cotton Cess Act XIV of 1923" in enforcement of the order dated January 13, 1956.2. The sole ground urged in support of the petition was that the appellants were bound to furnish returns under the Act to the Collector who alone could assess the cess, and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for returns was "unconstitutional". The High Court rejected the petition and against that order, this appeal is preferred with certificate of fitness granted by the High Court.3. The area in which the mill of the appellants is situate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution of January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposed by S. 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or prosessed in the mill. The authority as assess cess is by S. 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated of another officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton cess in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the General Clauses Act X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta. Madras or Bombay as the case may be and elsewhere the Chief Officer-in-charge of the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chief officer-in-charge of the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the General Clauses Act.4. Counsel for the appellants however contends that the General Clauses Act X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the General Clauses Act cannot be requisitioned in aid to interpret the expression "Collector" used in the Act. But the argument proceeds upon a fallacy as to the true nature of the General Clauses Act. By S. 3 of that Act, in all Central Acts and Regulations made after the commencement of the General Clauses Act unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of S. 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the General Clauses Act. Whenever the Central Act or Regulation made after March 11, 1897, is enacted the General Clauses Act becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension.5. Existence of a definition of the expression "Collector" in the Act in S. 2(a) is not necessarily indicative of an intention that the General Clauses Act is not to apply to the interpretation of that expression used in that Act. The first part of S. 2 cl. (a) of the Act is in truth not a definition at all : it merely states that the Collector of the district in which the mill is situate is the Collector for the purposes of the Act. For determining who the Collector is, one has to go to the General Clauses Act. It is said that bodily importing the definition of "Collector" in the General Clauses Act into S. 2(a) of the Act results in tautology, because by the definition in the General Clauses Act a Collector (outside the Presidency towns) is an officer-in-charge of the revenue administration of a district. But by the definition in the General Clauses Act, the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in S. 2(a) of the Act, the officer-in-charge of the revenue administration of the district within whose area the mill is situate is indicated. There is in our judgment no tautology, and no ground for not applying the definition of Collector in the General Clauses Act to the interpretation of the Act. | 0[ds]3. The area in which the mill of the appellants is situate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution of January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposed by S. 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or prosessed in the mill. The authority as assess cess is by S. 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated of another officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton cess in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the General Clauses Act X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta. Madras or Bombay as the case may be and elsewhere the Chiefof the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chiefof the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the General Clauses Act.4.Counsel for the appellants however contends that the General Clauses Act X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the General Clauses Act cannot be requisitioned in aid to interpret the expression "Collector" used in the Act.But the argument proceeds upon a fallacy as to the true nature of the General Clauses Act. By S. 3 of that Act, in all Central Acts and Regulations made after the commencement of the General Clauses Act unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of S. 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the General Clauses Act. Whenever the Central Act or Regulation made after March 11, 1897, is enacted the General Clauses Act becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension.5. Existence of a definition of the expression "Collector" in the Act in S. 2(a) is not necessarily indicative of an intention that the General Clauses Act is not to apply to the interpretation of that expression used in that Act. The first part of S. 2 cl. (a) of the Act is in truth not a definition at all : it merely states that the Collector of the district in which the mill is situate is the Collector for the purposes of the Act. For determining who the Collector is, one has to go to the General Clauses Act. It is said that bodily importing the definition of "Collector" in the General Clauses Act into S. 2(a) of the Act results in tautology, because by the definition in the General Clauses Act a Collector (outside the Presidency towns) is anof the revenue administration of a district. But by the definition in the General Clauses Act, the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in S. 2(a) of the Act, theof the revenue administration of the district within | 0 | 1,133 | 833 | ### 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:
powers under S. 6 of the Act called upon the managing agents of the appellants by letter dated January 13, 1956, to submit in the prescribed from a statement showing the total quantity of cotton consumed or processed in the factory. The appellants declined to carry out the requisition and filed a petition in the High Court of Mysore for a writ of mandamus, prohibition or other appropriate writ, direction or order restraining the Deputy Commissioner, Chitradurga and the State of Mysore from "collecting assessments under the Indian Cotton Cess Act XIV of 1923" in enforcement of the order dated January 13, 1956.2. The sole ground urged in support of the petition was that the appellants were bound to furnish returns under the Act to the Collector who alone could assess the cess, and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for returns was "unconstitutional". The High Court rejected the petition and against that order, this appeal is preferred with certificate of fitness granted by the High Court.3. The area in which the mill of the appellants is situate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution of January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposed by S. 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or prosessed in the mill. The authority as assess cess is by S. 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated of another officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton cess in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the General Clauses Act X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta. Madras or Bombay as the case may be and elsewhere the Chief Officer-in-charge of the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chief officer-in-charge of the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the General Clauses Act.4. Counsel for the appellants however contends that the General Clauses Act X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the General Clauses Act cannot be requisitioned in aid to interpret the expression "Collector" used in the Act. But the argument proceeds upon a fallacy as to the true nature of the General Clauses Act. By S. 3 of that Act, in all Central Acts and Regulations made after the commencement of the General Clauses Act unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of S. 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the General Clauses Act. Whenever the Central Act or Regulation made after March 11, 1897, is enacted the General Clauses Act becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension.5. Existence of a definition of the expression "Collector" in the Act in S. 2(a) is not necessarily indicative of an intention that the General Clauses Act is not to apply to the interpretation of that expression used in that Act. The first part of S. 2 cl. (a) of the Act is in truth not a definition at all : it merely states that the Collector of the district in which the mill is situate is the Collector for the purposes of the Act. For determining who the Collector is, one has to go to the General Clauses Act. It is said that bodily importing the definition of "Collector" in the General Clauses Act into S. 2(a) of the Act results in tautology, because by the definition in the General Clauses Act a Collector (outside the Presidency towns) is an officer-in-charge of the revenue administration of a district. But by the definition in the General Clauses Act, the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in S. 2(a) of the Act, the officer-in-charge of the revenue administration of the district within whose area the mill is situate is indicated. There is in our judgment no tautology, and no ground for not applying the definition of Collector in the General Clauses Act to the interpretation of the Act.
### Response:
0
### Explanation:
3. The area in which the mill of the appellants is situate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution of January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposed by S. 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or prosessed in the mill. The authority as assess cess is by S. 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated of another officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton cess in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the General Clauses Act X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta. Madras or Bombay as the case may be and elsewhere the Chiefof the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chiefof the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the General Clauses Act.4.Counsel for the appellants however contends that the General Clauses Act X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the General Clauses Act cannot be requisitioned in aid to interpret the expression "Collector" used in the Act.But the argument proceeds upon a fallacy as to the true nature of the General Clauses Act. By S. 3 of that Act, in all Central Acts and Regulations made after the commencement of the General Clauses Act unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of S. 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the General Clauses Act. Whenever the Central Act or Regulation made after March 11, 1897, is enacted the General Clauses Act becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension.5. Existence of a definition of the expression "Collector" in the Act in S. 2(a) is not necessarily indicative of an intention that the General Clauses Act is not to apply to the interpretation of that expression used in that Act. The first part of S. 2 cl. (a) of the Act is in truth not a definition at all : it merely states that the Collector of the district in which the mill is situate is the Collector for the purposes of the Act. For determining who the Collector is, one has to go to the General Clauses Act. It is said that bodily importing the definition of "Collector" in the General Clauses Act into S. 2(a) of the Act results in tautology, because by the definition in the General Clauses Act a Collector (outside the Presidency towns) is anof the revenue administration of a district. But by the definition in the General Clauses Act, the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in S. 2(a) of the Act, theof the revenue administration of the district within
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Kishan Narain Vs. State Of Maharashtra | a mention in the panchnama statement which also clearly says that then they talked something which was not audible to PWs 4 and 5. Then in Raos evidence he says that he told the appel1ant that it would mean lack of trust in him and the appellant told him that he had full trust in him. In the panchnama it is said that Rao said "you have to trust me as I am trusting you." The point about trusting each other could be understood only if Raos evidence is correct. There is no other explanation. Then Rao says that the accused asked Shahani to go out and to get the packets from Madanlal and Shahani went out from the side entry. In the panchnama it is mentioned that a few moments later the man on the left side of Shri Rao (Shahani) got up from the chair and walked out of the enclosure of the verandah from the western side, went up to the foot-path and came back. We are satisfied that on the substantial question as to what happened there is really no contradiction between the evidence of Rao and the panchnama statement as well as the evidence of the panch witnesses. We find it difficult to accept the case on behalf of the appellant that all that he did say was to ask Shahani to get the papers and that he found that the envelopes he brought contained currency notes when the police came in and took them from Rao. The reaction of the appellant when this happened was not that of an innocent person in such a situation. He would have burst out and abused Shahani. He would have come out with his case then and there. It is difficult to believe the appellants statement that when he asked Shahani to give Rao the papers in regard to the two consignments Shahani said he had got them outside and he would fetch them and he went out and brought two envelopes which were later found to contain currency notes. He does not explain how the papers happened to be outside and how they could not be either with Shahani or with himself when they were inside the restaurant. The envelopes must have been with somebody outside. It must be Madanlal. This is also consistent with Raos evidence that shows that the appellant was trying to see if he could postpone the payment till the consignments were cleared. We agree with the conclusion of the courts below that Madanlal was in Bombay on that day and not in Amritsar as was sought to be made out on behalf of the appellant. 10. Though in the arguments on behalf of the appellant complete reliance is sought to be placed on the panchas and the panchnama statement, in his statement under S. 342 Cr.P.C. be had said that both Mr. Rao and Mr. Shahani had cooked the whole matter earlier and made Mr. Jog (D.S.P. of the Special Police Establishment) and the panchas to believe that some bribe was being given to Rao and that all these things have been crammed in the heads of the panchas and they were made to believe that the appellant was going to give bribe to Rao. The whole statement reads as though the panchnama contained something against him. A clever attempt has been made to make it appear that Shahani went out and brought in two envelopes containing currency notes instead of the papers relating to two consignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was not that of an innocent man falsely accused of giving a bribe we do not believe, as we said earlier, that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are not able to find any reason to be lieve that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the conclusion arrived at by both the courts below about the appellants guilt is correct and it has been established beyond all reasonable doubt. 11. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment.Even if we accept this conclusion we do not consider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was no harassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the consignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What the appellant was trying to do was really to try to have the cake and eat it too.We do not consider that this is a case like the one in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 of a person who had decided finally and firmly not to bribe and where it could be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law. | 0[ds]We are of opinion that the High Court has not been quite fair to Rao. In regard to Shahanis application for reward and his own dealings with the connected file Rao was really on the horns of a dilemma. As pointed out by the Assistant Collector, Beri, in his reply affidavit to the appellants application for the production of the three documents which he wanted, Rao could not be compelled to answer questions without breach of the provisions of Sections 124 and 125 of the Evidence Act. We are of opinion that the order of the learned Judge of the High Court permitting certain portions of the C.I.U. file to be brought on record was not correct. The learned Judge seems to have been more concerned with the provisions of Section 125 than with Section 124 of the Evidence Act. While the portions brought on record might not contravene the provisions of Section 125 we have no doubt that it contravenes Sec. 124. The noting made by Rao on the C.I.U. file was one made by him in official confidence. This was not seriously disputed by Mr. Sibal appearing for the appellant before usEven taking those conclusions into account we do not consider that the prosecution case in respect of the central point has in any way been shaken. The learned Judge of the High Court himself did not find Rao to be wholly unreliable and he did not consider that his evidence could be altogether discarded. We are satisfied on the evidence that the Courts below were right in coming to conclusion that the appellant did meet Rao at Gaylord on the 13th. As we have already mentioned the appellant had immediately reported the matter to Assistant Collector, Sonavne and on the instructions of his higher authorities a complaint was made to the Special Police Establishment. We are not able to accept the argument on behalf of the appellant that there was no such meeting, that it was Shahani that had arranged for the appellants meeting with Rao at Gaylord on the 14th and that it was Shahani who had arranged to see that the two envelopes which the appellant handed over to Rao contained not the documents relating to the two further consignments but currency notes. That the appellant should have been anxious to be on the right side of somebody in the Customs Department was natural enough. The reason is this: All the appraisers who had looked into the consignment received by the J. D. Mills had taken the view that what was imported was not spare parts though it was argued on behalf of the appellant that the various spare parts had been put together in order that they might be transported safely and what was imported was not a whole machine. It may well be that what was imported was not a whole machine as held by the Collector of Customs ultimately in 1968. But the spare parts were in an assembled condition and even Majumdar, the Engineer of Bakubhai Ambalal got the first impression that it was nearly a machine. He could not say what parts were not there. The appellant himself in the statement filed before the trial court has stated that in view of the fact that the spare parts which were imported were in an assembled condition for the purpose of safe transportation without avoidable damage, the Customs examiners and appraisers got the first impression that what was imported was a machine and not spare parts. It was, therefore, not surprising that all the appraisers who viewed the machine proceeded on the basis that what was imported was not spare parts. Even according to the appellant, he had asked Shahani to introduce him to Rao. Quite possibly Shahani might have told the appellant that Rao was expected to be in the Gaylord on the 13th at 12.30 p.m. We are proceeding on the basis that Shahanis evidence is wholly unreliable. But as we said earlier, Rao could not have complained to Sonavne at 1.30 p.m. soon after he alleges he had met the appellant at Gaylord at 12.30 p.m. and the appellant had made the offer of bribe, nor gone on further to make a complaint to the Special Police Establishment if he had not met the appellant on the 13th. He could not have done all that merely on Shahanis information that the appellant would meet him (Rao) on the 14th at Gaylord. Nor could it be expected that either Shahani or Rao would have found Rs. 5,000/- merely to trap the appellant and risk that amount. There is no strong enough motive for either Shahani or Rao to implicate the appellant falsely. We are satisfied that the evidence of Rao as to what happened on the 13th is true and reliableA clever attempt has been made to make it appear that Shahani went out and brought in two envelopes containing currency notes instead of the papers relating to two consignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was not that of an innocent man falsely accused of giving a bribe we do not believe, as we said earlier, that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are not able to find any reason to be lieve that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the conclusion arrived at by both the courts below about the appellants guilt is correct and it has been established beyond all reasonable doubt11. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment.Even if we accept this conclusion we do not consider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was no harassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the consignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What the appellant was trying to do was really to try to have the cake and eat it too.We do not consider that this is a case like the one in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 of a person who had decided finally and firmly not to bribe and where it could be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law. | 0 | 5,331 | 1,307 | ### Instruction:
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### Input:
a mention in the panchnama statement which also clearly says that then they talked something which was not audible to PWs 4 and 5. Then in Raos evidence he says that he told the appel1ant that it would mean lack of trust in him and the appellant told him that he had full trust in him. In the panchnama it is said that Rao said "you have to trust me as I am trusting you." The point about trusting each other could be understood only if Raos evidence is correct. There is no other explanation. Then Rao says that the accused asked Shahani to go out and to get the packets from Madanlal and Shahani went out from the side entry. In the panchnama it is mentioned that a few moments later the man on the left side of Shri Rao (Shahani) got up from the chair and walked out of the enclosure of the verandah from the western side, went up to the foot-path and came back. We are satisfied that on the substantial question as to what happened there is really no contradiction between the evidence of Rao and the panchnama statement as well as the evidence of the panch witnesses. We find it difficult to accept the case on behalf of the appellant that all that he did say was to ask Shahani to get the papers and that he found that the envelopes he brought contained currency notes when the police came in and took them from Rao. The reaction of the appellant when this happened was not that of an innocent person in such a situation. He would have burst out and abused Shahani. He would have come out with his case then and there. It is difficult to believe the appellants statement that when he asked Shahani to give Rao the papers in regard to the two consignments Shahani said he had got them outside and he would fetch them and he went out and brought two envelopes which were later found to contain currency notes. He does not explain how the papers happened to be outside and how they could not be either with Shahani or with himself when they were inside the restaurant. The envelopes must have been with somebody outside. It must be Madanlal. This is also consistent with Raos evidence that shows that the appellant was trying to see if he could postpone the payment till the consignments were cleared. We agree with the conclusion of the courts below that Madanlal was in Bombay on that day and not in Amritsar as was sought to be made out on behalf of the appellant. 10. Though in the arguments on behalf of the appellant complete reliance is sought to be placed on the panchas and the panchnama statement, in his statement under S. 342 Cr.P.C. be had said that both Mr. Rao and Mr. Shahani had cooked the whole matter earlier and made Mr. Jog (D.S.P. of the Special Police Establishment) and the panchas to believe that some bribe was being given to Rao and that all these things have been crammed in the heads of the panchas and they were made to believe that the appellant was going to give bribe to Rao. The whole statement reads as though the panchnama contained something against him. A clever attempt has been made to make it appear that Shahani went out and brought in two envelopes containing currency notes instead of the papers relating to two consignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was not that of an innocent man falsely accused of giving a bribe we do not believe, as we said earlier, that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are not able to find any reason to be lieve that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the conclusion arrived at by both the courts below about the appellants guilt is correct and it has been established beyond all reasonable doubt. 11. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment.Even if we accept this conclusion we do not consider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was no harassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the consignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What the appellant was trying to do was really to try to have the cake and eat it too.We do not consider that this is a case like the one in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 of a person who had decided finally and firmly not to bribe and where it could be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law.
### Response:
0
### Explanation:
We are satisfied on the evidence that the Courts below were right in coming to conclusion that the appellant did meet Rao at Gaylord on the 13th. As we have already mentioned the appellant had immediately reported the matter to Assistant Collector, Sonavne and on the instructions of his higher authorities a complaint was made to the Special Police Establishment. We are not able to accept the argument on behalf of the appellant that there was no such meeting, that it was Shahani that had arranged for the appellants meeting with Rao at Gaylord on the 14th and that it was Shahani who had arranged to see that the two envelopes which the appellant handed over to Rao contained not the documents relating to the two further consignments but currency notes. That the appellant should have been anxious to be on the right side of somebody in the Customs Department was natural enough. The reason is this: All the appraisers who had looked into the consignment received by the J. D. Mills had taken the view that what was imported was not spare parts though it was argued on behalf of the appellant that the various spare parts had been put together in order that they might be transported safely and what was imported was not a whole machine. It may well be that what was imported was not a whole machine as held by the Collector of Customs ultimately in 1968. But the spare parts were in an assembled condition and even Majumdar, the Engineer of Bakubhai Ambalal got the first impression that it was nearly a machine. He could not say what parts were not there. The appellant himself in the statement filed before the trial court has stated that in view of the fact that the spare parts which were imported were in an assembled condition for the purpose of safe transportation without avoidable damage, the Customs examiners and appraisers got the first impression that what was imported was a machine and not spare parts. It was, therefore, not surprising that all the appraisers who viewed the machine proceeded on the basis that what was imported was not spare parts. Even according to the appellant, he had asked Shahani to introduce him to Rao. Quite possibly Shahani might have told the appellant that Rao was expected to be in the Gaylord on the 13th at 12.30 p.m. We are proceeding on the basis that Shahanis evidence is wholly unreliable. But as we said earlier, Rao could not have complained to Sonavne at 1.30 p.m. soon after he alleges he had met the appellant at Gaylord at 12.30 p.m. and the appellant had made the offer of bribe, nor gone on further to make a complaint to the Special Police Establishment if he had not met the appellant on the 13th. He could not have done all that merely on Shahanis information that the appellant would meet him (Rao) on the 14th at Gaylord. Nor could it be expected that either Shahani or Rao would have found Rs. 5,000/- merely to trap the appellant and risk that amount. There is no strong enough motive for either Shahani or Rao to implicate the appellant falsely. We are satisfied that the evidence of Rao as to what happened on the 13th is true and reliableA clever attempt has been made to make it appear that Shahani went out and brought in two envelopes containing currency notes instead of the papers relating to two consignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was not that of an innocent man falsely accused of giving a bribe we do not believe, as we said earlier, that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are not able to find any reason to be lieve that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the conclusion arrived at by both the courts below about the appellants guilt is correct and it has been established beyond all reasonable doubt11. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment.Even if we accept this conclusion we do not consider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was no harassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the consignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What the appellant was trying to do was really to try to have the cake and eat it too.We do not consider that this is a case like the one in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 of a person who had decided finally and firmly not to bribe and where it could be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law.
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M.P.E.B Vs. Jagdishchandra Sharma | to the charge proved. These aspects are well settled. In U.P. State Road Transport Corpn. vs. Subhash Chandra Sharma and others, (2000) 3 SCC 324 , this Court, after referring to the scope of interference with punishment under Section 11A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh and another, (2004) 8 SCC 200 , this Court after referring to the decision in State of Rajasthan vs. B.K. Meena, (1996) 6 SCC 417 , also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-a-vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Company Ltd. vs. Uttam Manohar Nakate, 2005(1) SCALE 345, this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. vs. N.B. Narawade, 2005(2) SCALE 302. This Court summed up the position thus: "It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/ Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires to reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. vs. V. Adikanda Sahu (1960(1) LLJ-518-SC) 590, this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal, assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Employers, Management, Muriadih Colliery M/s. BCCL Ltd. vs. Bihar Colliery Kamgar Union, Through Workmen (JT 2005(2) SC 444 ) this Court after referring to and quoting the relevant passages from management of Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh and another (2004(7) SCALE 608) and The Management of Tournamulla Estate vs. Workmen (1973) 2 SCC 502 ) held:-"The courts below by condoning an act of physical violence have undermined the discipline in the organization, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11(A) of the Act to interfere with the punishment of dismissal." 9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the work place in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large. Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of ones natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion. | 1[ds]6. It is clear from the findings recorded and the materials available before us, that the charge against the employee of hitting a superior officer with an implement and causing him injury stood proved, as also his absence from duty without intimation. In fact, the Labour Court has found nothing wrong with the domestic enquiry wherein the charges were found to have been proved. The Labour Court also proceeded on the basis that the charges were proved. The Industrial Court in appeal accepted the finding that the charges against the employee were proved. The High Court also held that the charges against the employee stood proved on the facts of this case. The High Court also took note of the fact that the employee did not even challenge this part of the finding of the Labour Court in the appeal, he filed before the Industrial Court. Thus, it is clear that there is no reason for this Court to interfere with the finding that the charges against the employee stood proved, even assuming that the employee, the appellant in Civil Appeal No. 1340 of 2003, is permitted to raise the question regarding the proving of the charges against him. We were taken through the relevant materials. The materials clearly disclose that the charges were proved. We have, therefore, only to ask ourselves whether in the face of the charges proved, it was proper for the Labour Court or for the High Court to interfere with the punishment imposed by the employer.7. On a comparison, it is seen that Section 107A of the Act is almost a reproduction of Section 11A of the Industrial Disputes Act. Learned counsel also regard that its scope was the same as that of Section 11A of the Industrial Disputes Act.In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the work place in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large. Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of ones natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the rightit had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorized absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under Section 107A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution of India only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. | 1 | 2,804 | 783 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
to the charge proved. These aspects are well settled. In U.P. State Road Transport Corpn. vs. Subhash Chandra Sharma and others, (2000) 3 SCC 324 , this Court, after referring to the scope of interference with punishment under Section 11A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh and another, (2004) 8 SCC 200 , this Court after referring to the decision in State of Rajasthan vs. B.K. Meena, (1996) 6 SCC 417 , also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-a-vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Company Ltd. vs. Uttam Manohar Nakate, 2005(1) SCALE 345, this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. vs. N.B. Narawade, 2005(2) SCALE 302. This Court summed up the position thus: "It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/ Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires to reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. vs. V. Adikanda Sahu (1960(1) LLJ-518-SC) 590, this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal, assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Employers, Management, Muriadih Colliery M/s. BCCL Ltd. vs. Bihar Colliery Kamgar Union, Through Workmen (JT 2005(2) SC 444 ) this Court after referring to and quoting the relevant passages from management of Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh and another (2004(7) SCALE 608) and The Management of Tournamulla Estate vs. Workmen (1973) 2 SCC 502 ) held:-"The courts below by condoning an act of physical violence have undermined the discipline in the organization, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11(A) of the Act to interfere with the punishment of dismissal." 9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the work place in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large. Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of ones natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.
### Response:
1
### Explanation:
6. It is clear from the findings recorded and the materials available before us, that the charge against the employee of hitting a superior officer with an implement and causing him injury stood proved, as also his absence from duty without intimation. In fact, the Labour Court has found nothing wrong with the domestic enquiry wherein the charges were found to have been proved. The Labour Court also proceeded on the basis that the charges were proved. The Industrial Court in appeal accepted the finding that the charges against the employee were proved. The High Court also held that the charges against the employee stood proved on the facts of this case. The High Court also took note of the fact that the employee did not even challenge this part of the finding of the Labour Court in the appeal, he filed before the Industrial Court. Thus, it is clear that there is no reason for this Court to interfere with the finding that the charges against the employee stood proved, even assuming that the employee, the appellant in Civil Appeal No. 1340 of 2003, is permitted to raise the question regarding the proving of the charges against him. We were taken through the relevant materials. The materials clearly disclose that the charges were proved. We have, therefore, only to ask ourselves whether in the face of the charges proved, it was proper for the Labour Court or for the High Court to interfere with the punishment imposed by the employer.7. On a comparison, it is seen that Section 107A of the Act is almost a reproduction of Section 11A of the Industrial Disputes Act. Learned counsel also regard that its scope was the same as that of Section 11A of the Industrial Disputes Act.In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the work place in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large. Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of ones natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the rightit had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorized absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under Section 107A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution of India only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled.
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Oriental Insurance Company, Limited Vs. T. Mohammed Raisuli Hassan | the Munsiff Court seeking a declaration that the termination of his service effected by the appellant was illegal and he was entitled to be reinstated with back wages. That court recorded a finding of fact that the respondents service with the appellant at the time of his termination was on probation inasmuch as his service was not confirmed. It, however, found the termination of service of the respondent to be illegal for non-giving of one full months notice as a condition precedent for such termination. Yet, it dismissed the plaintiffs suit as barred by the provisions of the Industrial Disputes Act, 1947. The respondent took up the matter in appeal before the Civil Judge Court, That court affirmed the finding of the Munsiff Court as regards the respondent being on probation at the time of termination of his service, but the view of the Munsiff Court that the termination of the Respondents service by the appellant was illegal for want of one months prior notice. However, taking the view that a suit for mere declaration of invalidating termination of the respondents service could lie in a civil court, granted the decree declaring the termination of service of the respondent to be illegal, in reversal of the decree of the Munsiff court. When the appellant took up the matter in second appeal before the High court, it affirmed the decree of the Civil Judge Court, even though it specifically affirmed the finding of fact concurrently recorded by the courts below that the respondent was in service as a probationer at the time of termination of his service. It is this decree of affirmation made in the second appeal by the High Court which is the subject-matter of the present appeal brought up by the appellant.3. It was submitted by learned counsel for the appellant that the courts below had overlooked the apparent purport of clause 10 of the appointment order and had misread the clause. According to him, assuming that under the clause a probationers service also was liable to be terminated with one months notice failure to serve one months notice did not invalidate or vitiate the termination of the respondents service effected by notice dated May 19, 1980, for service of such notice as a condition precedent for termination of the service of the respondent was not a mandatory requirement, the breach of which could result in vitiation of the termination. In any even, non-service of such one months notice before termination of the respondents service, could have at the most entitled him to claim one months salary in lieu there of and nothing else. The submission of the learned counsel, in our view, is well founded. 4. Admittedly, there was no statutory rule requiring one months notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one months notice or one months salary in lieu thereof by either said to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment order reads. "10. This appointment is liable to be terminated at any time by giving one months notice, in writing, on either side, or a months salary in lieu of notice, without assigning any reason.Breach of this condition, will entitle the company to recover from you one months salary in lieu of notice." * 5. When the above term in the clause relating to the condition of service of the respondent with the appellant in seen as a whole, there is nothing to indicate or suggest, even remotely, that non-service of one months notice as a condition precedent for termination of the respondents service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause. "breach of this condition, will entitle the company to recover from you one months salary in lieu of notice" makes it obvious that the same would be the consequence in there was a breach of condition on the part of the company in the matter of service of one months notice before termination of the respondents service. Hence, we are constrained to hold that the non-service of one months notice in writing by the appellant to the respondent before terminating the latters service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view that non-service of one months prior notice to the respondent had vitiated the termination of his service. 6. What remains to be considered is an objection raised by the learned counsel for the respondent regarding the maintainability of the second appeal before the High Court and this further appeal by special leave. According to him when the appellant had not challenged the finding of the Munsiff Court that the termination of the respondents service was illegal for want of one months prior notice by filing an appeal even thought that suit had been dismissed as one without jurisdiction, it was not open to the appellant to seek to have that finding set aside by filing a second appeal after the first appellate court had made a decree based on that finding. The objection, in our view, cannot be sustained for more than one reason. First, this objection had not been raise don behalf of the respondent before the High court when the second appeal of the appellant was heard. And, secondly, this objection overlooks the very provision in Rule 22 Order 41 of the Civil Procedure Code, 1908 that a respondent in appeal could support the decree made in his favour urging that the issue held against him by the court below ought to have been held in his favour. | 1[ds]4. Admittedly, there was no statutory rule requiring one months notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one months notice or one months salary in lieu thereof by either said to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment orderThis appointment is liable to be terminated at any time by giving one months notice, in writing, on either side, or a months salary in lieu of notice, without assigning anyof this condition, will entitle the company to recover from you one months salary in lieu of notice."When the above term in the clause relating to the condition of service of the respondent with the appellant in seen as a whole, there is nothing to indicate or suggest, even remotely, thatof one months notice as a condition precedent for termination of the respondents service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause. "breach of this condition, will entitle the company to recover from you one months salary in lieu of notice" makes it obvious that the same would be the consequence in there was a breach of condition on the part of the company in the matter of service of one months notice before termination of the respondents service. Hence, we are constrained to hold that theof one months notice in writing by the appellant to the respondent before terminating the latters service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view thatof one months prior notice to the respondent had vitiated the termination of hisWhat remains to be considered is an objection raised by the learned counsel for the respondent regarding the maintainability of the second appeal before the High Court and this further appeal by special leave. According to him when the appellant had not challenged the finding of the Munsiff Court that the termination of the respondents service was illegal for want of one months prior notice by filing an appeal even thought that suit had been dismissed as one without jurisdiction, it was not open to the appellant to seek to have that finding set aside by filing a second appeal after the first appellate court had made a decree based on that finding. The objection, in our view, cannot be sustained for more than one reason. First, this objection had not been raise don behalf of the respondent before the High court when the second appeal of the appellant was heard. And, secondly, this objection overlooks the very provision in Rule 22 Order 41 of the Civil Procedure Code, 1908 that a respondent in appeal could support the decree made in his favour urging that the issue held against him by the court below ought to have been held in his favour | 1 | 1,227 | 580 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the Munsiff Court seeking a declaration that the termination of his service effected by the appellant was illegal and he was entitled to be reinstated with back wages. That court recorded a finding of fact that the respondents service with the appellant at the time of his termination was on probation inasmuch as his service was not confirmed. It, however, found the termination of service of the respondent to be illegal for non-giving of one full months notice as a condition precedent for such termination. Yet, it dismissed the plaintiffs suit as barred by the provisions of the Industrial Disputes Act, 1947. The respondent took up the matter in appeal before the Civil Judge Court, That court affirmed the finding of the Munsiff Court as regards the respondent being on probation at the time of termination of his service, but the view of the Munsiff Court that the termination of the Respondents service by the appellant was illegal for want of one months prior notice. However, taking the view that a suit for mere declaration of invalidating termination of the respondents service could lie in a civil court, granted the decree declaring the termination of service of the respondent to be illegal, in reversal of the decree of the Munsiff court. When the appellant took up the matter in second appeal before the High court, it affirmed the decree of the Civil Judge Court, even though it specifically affirmed the finding of fact concurrently recorded by the courts below that the respondent was in service as a probationer at the time of termination of his service. It is this decree of affirmation made in the second appeal by the High Court which is the subject-matter of the present appeal brought up by the appellant.3. It was submitted by learned counsel for the appellant that the courts below had overlooked the apparent purport of clause 10 of the appointment order and had misread the clause. According to him, assuming that under the clause a probationers service also was liable to be terminated with one months notice failure to serve one months notice did not invalidate or vitiate the termination of the respondents service effected by notice dated May 19, 1980, for service of such notice as a condition precedent for termination of the service of the respondent was not a mandatory requirement, the breach of which could result in vitiation of the termination. In any even, non-service of such one months notice before termination of the respondents service, could have at the most entitled him to claim one months salary in lieu there of and nothing else. The submission of the learned counsel, in our view, is well founded. 4. Admittedly, there was no statutory rule requiring one months notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one months notice or one months salary in lieu thereof by either said to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment order reads. "10. This appointment is liable to be terminated at any time by giving one months notice, in writing, on either side, or a months salary in lieu of notice, without assigning any reason.Breach of this condition, will entitle the company to recover from you one months salary in lieu of notice." * 5. When the above term in the clause relating to the condition of service of the respondent with the appellant in seen as a whole, there is nothing to indicate or suggest, even remotely, that non-service of one months notice as a condition precedent for termination of the respondents service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause. "breach of this condition, will entitle the company to recover from you one months salary in lieu of notice" makes it obvious that the same would be the consequence in there was a breach of condition on the part of the company in the matter of service of one months notice before termination of the respondents service. Hence, we are constrained to hold that the non-service of one months notice in writing by the appellant to the respondent before terminating the latters service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view that non-service of one months prior notice to the respondent had vitiated the termination of his service. 6. What remains to be considered is an objection raised by the learned counsel for the respondent regarding the maintainability of the second appeal before the High Court and this further appeal by special leave. According to him when the appellant had not challenged the finding of the Munsiff Court that the termination of the respondents service was illegal for want of one months prior notice by filing an appeal even thought that suit had been dismissed as one without jurisdiction, it was not open to the appellant to seek to have that finding set aside by filing a second appeal after the first appellate court had made a decree based on that finding. The objection, in our view, cannot be sustained for more than one reason. First, this objection had not been raise don behalf of the respondent before the High court when the second appeal of the appellant was heard. And, secondly, this objection overlooks the very provision in Rule 22 Order 41 of the Civil Procedure Code, 1908 that a respondent in appeal could support the decree made in his favour urging that the issue held against him by the court below ought to have been held in his favour.
### Response:
1
### Explanation:
4. Admittedly, there was no statutory rule requiring one months notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one months notice or one months salary in lieu thereof by either said to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment orderThis appointment is liable to be terminated at any time by giving one months notice, in writing, on either side, or a months salary in lieu of notice, without assigning anyof this condition, will entitle the company to recover from you one months salary in lieu of notice."When the above term in the clause relating to the condition of service of the respondent with the appellant in seen as a whole, there is nothing to indicate or suggest, even remotely, thatof one months notice as a condition precedent for termination of the respondents service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause. "breach of this condition, will entitle the company to recover from you one months salary in lieu of notice" makes it obvious that the same would be the consequence in there was a breach of condition on the part of the company in the matter of service of one months notice before termination of the respondents service. Hence, we are constrained to hold that theof one months notice in writing by the appellant to the respondent before terminating the latters service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view thatof one months prior notice to the respondent had vitiated the termination of hisWhat remains to be considered is an objection raised by the learned counsel for the respondent regarding the maintainability of the second appeal before the High Court and this further appeal by special leave. According to him when the appellant had not challenged the finding of the Munsiff Court that the termination of the respondents service was illegal for want of one months prior notice by filing an appeal even thought that suit had been dismissed as one without jurisdiction, it was not open to the appellant to seek to have that finding set aside by filing a second appeal after the first appellate court had made a decree based on that finding. The objection, in our view, cannot be sustained for more than one reason. First, this objection had not been raise don behalf of the respondent before the High court when the second appeal of the appellant was heard. And, secondly, this objection overlooks the very provision in Rule 22 Order 41 of the Civil Procedure Code, 1908 that a respondent in appeal could support the decree made in his favour urging that the issue held against him by the court below ought to have been held in his favour
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Shauqin Singh & Others Vs. Desa Singh & Others | appeal was preferred to the High Court under the Letters Patent.5. To determine whether the extracts from Khasra-Girdwari produced by respondents 1 to 3 with their application before the Land Claims Officer were "fabricated" the High Court called upon the State Government to produce the original Khasra-Girdwari for the year 1957-58, but the State did not produce the record on the somewhat specious plea that the Khasra-Girdwari was "not traceable". The State also relied upon an affidavit of the Deputy Secretary to the Government of Punjab, Rehabilitation Department, stating that the order of exchange was obtained by respondents 1 to 3 on the basis of incorrect Khasra-Girdwari entries and that the Tahsildar had signed the copy of the Khasra-Girdwari produced by respondents 1 to 3 without comparing them with the originals as required under the orders of Government. The High Court observed that the Deputy Secretary to the Government of Punjab, Rehabilitation Department, had no personal knowledge and his assertion that the exchange was obtained on the basis of incorrect entries in Khasra-Girdwari was not evidence which supported the claim that the extracts produced were not genuine. The High Court accordingly reversed, the order holding that there was no evidence to show that Khasra-Girdwari entries which were produced by the respondents 1 to 3 before the Land Claims Officer on which the previous allotment was cancelled were not true extracts. The High Court relied upon the report made by the Patwari, Kanungo-Tahsildar and the Assistant Commissioner and held that the claim made by respondent 1 to 3 that the lands allotted to them were "poor quality lands" and it was "difficult to earn any livelihood out of those lands" was correct. With certificate granted by the High Court the appellants have appealed to this Court.6. Section 24 (2) of the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 confers authority upon the Chief Settlement Commissioner to revise the orders of subordinate authorities. In so far as it is relevant it provides :"Without prejudice to the generality of the foregoing power under sub-section (1), if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order . . . cancelling the lease or allotment granted to him . . . . . "The Chief Settlement Commissioner has, therefore, power under sub-section (2) to cancel an allotment if he is satisfied that the order of allotment of land had been "obtained by means of fraud, false representation or concealment of any material fact."The power is judicial and by the use of the expression "is satisfied" the Chief Settlement Commissioner is not made the final arbiter of the facts on which the conclusion is reached. The jurisdiction of the Chief Settlement Commissioner arises only if an allotment is obtained by means of fraud, false representation or concealment of material facts. The relevant satisfaction is a jurisdictional fact on the existence of which alone the power may be exercised. A superior authority or the High Court in a writ petition would, therefore, be entitled to consider whether there was due satisfaction by the Chief Settlement Commissioner on materials placed before him and that the order was made not arbitrarily, capriciously or perversely.7. The Chief Settlement Commissioner had apparently called for the Jamabandi for the year 1957-58 but it was represented that it was missing. He however, relied upon the Khasra-Girdwari for 1950-51 to1955-56 and held that some parts of the land of the village were under cultivation and on that basis he observed that the Enquiry Officer had come to the conclusion that the copies of the Khasra-Girdawari on the basis of which exchange had been obtained were forged and the exchange was liable to be set aside. Even the entries in the Khasra-Girdawari of the earlier years showed that large areas of lands of the village were not capable of full cultivation. There were again the reports of the Patwari, Kanungo-Tahsildar and the Assistant Commissioner that the lands in the village were in danger of being, eroded by the action of the river Sutlej, that the displaced persons who were allottee of the lands were in danger of being deprived of their lands and that alternative allotment of land be made to respondents 1 to 3. The revenue authorities had reported that in the village there was a total area of 1102 acres of cultivable land out of which about 822 acres had been rendered uncultivable and only 280 acres remained cultivable. It appears further that when the river Sutlej was in floods it was difficult to save even the abad land, that the residents of the village were permanently in danger of river erosion and that the Kanungo-Tahsildar regarded the condition of all the allottees as "miserable". The Chief Settlement Commissioner did not refer to the report of the Kanungo-Tahsildar and the Assistant Commissioner on the basis of which the Land Claims Officer had cancelled the original allotment.8. It is clear that the Chief Settlement Commissioner without having the original Khasra-Girdawari before him and without considering the relevant evidence came to the conclusion that the entries produced before the Land Claims Officer in support of their application for cancellation of the allotment were "not genuine". There is in the order of the Chief Settlement Commissioner no reference to any evidence which may support this conclusion. The order of the chief Settlement Commissioner being quasi-judicial in character and his satisfaction not being decisive of the matter, the High Court, in our view, was justified in holding that the conclusion of the Chief Settlement Commissioner, that the respondents 1 to 3 were guilty of fraud, was based on no evidence and the Court was competent to set aside the order of the Chief Settlement Commissioner. | 0[ds]7. The Chief Settlement Commissioner had apparently called for the Jamabandifor the yearbut it was represented that it was missing. He however, relied upon the6 and held that some parts of the land of the village were under cultivation and on that basis he observed that the Enquiry Officer had come to the conclusion that the copies of theon the basis of which exchange had been obtained were forged and the exchange was liable to be set aside. Even the entries in theof the earlier years showed that large areas of lands of the village were not capable of full cultivation. There were again the reports of the Patwari,and the Assistant Commissioner that the lands in the village were in danger of being, eroded by the action of the river Sutlej, that the displaced persons who were allottee of the lands were in danger of being deprived of their lands and that alternative allotment of land be made to respondents 1 to 3. The revenue authorities had reported that in the village there was a total area of 1102 acres of cultivable land out of which about 822 acres had been rendered uncultivable and only 280 acres remained cultivable. It appears further that when the river Sutlej was in floods it was difficult to save even the abad land, that the residents of the village were permanently in danger of river erosion and that theregarded the condition of all the allottees as "miserable". The Chief Settlement Commissioner did not refer to the report of theand the Assistant Commissioner on the basis of which the Land Claims Officer had cancelled the original allotment.8. It is clear that the Chief Settlement Commissioner without having the originalbefore him and without considering the relevant evidence came to the conclusion that the entries produced before the Land Claims Officer in support of their application for cancellation of the allotment were "not genuine". There is in the order of the Chief Settlement Commissioner no reference to any evidence which may support this conclusion. The order of the chief Settlement Commissioner beingin character and his satisfaction not being decisive of the matter, the High Court, in our view, was justified in holding that the conclusion of the Chief Settlement Commissioner, that the respondents 1 to 3 were guilty of fraud, was based on no evidence and the Court was competent to set aside the order of the Chief Settlement Commissioner. | 0 | 1,549 | 433 | ### 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:
appeal was preferred to the High Court under the Letters Patent.5. To determine whether the extracts from Khasra-Girdwari produced by respondents 1 to 3 with their application before the Land Claims Officer were "fabricated" the High Court called upon the State Government to produce the original Khasra-Girdwari for the year 1957-58, but the State did not produce the record on the somewhat specious plea that the Khasra-Girdwari was "not traceable". The State also relied upon an affidavit of the Deputy Secretary to the Government of Punjab, Rehabilitation Department, stating that the order of exchange was obtained by respondents 1 to 3 on the basis of incorrect Khasra-Girdwari entries and that the Tahsildar had signed the copy of the Khasra-Girdwari produced by respondents 1 to 3 without comparing them with the originals as required under the orders of Government. The High Court observed that the Deputy Secretary to the Government of Punjab, Rehabilitation Department, had no personal knowledge and his assertion that the exchange was obtained on the basis of incorrect entries in Khasra-Girdwari was not evidence which supported the claim that the extracts produced were not genuine. The High Court accordingly reversed, the order holding that there was no evidence to show that Khasra-Girdwari entries which were produced by the respondents 1 to 3 before the Land Claims Officer on which the previous allotment was cancelled were not true extracts. The High Court relied upon the report made by the Patwari, Kanungo-Tahsildar and the Assistant Commissioner and held that the claim made by respondent 1 to 3 that the lands allotted to them were "poor quality lands" and it was "difficult to earn any livelihood out of those lands" was correct. With certificate granted by the High Court the appellants have appealed to this Court.6. Section 24 (2) of the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 confers authority upon the Chief Settlement Commissioner to revise the orders of subordinate authorities. In so far as it is relevant it provides :"Without prejudice to the generality of the foregoing power under sub-section (1), if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order . . . cancelling the lease or allotment granted to him . . . . . "The Chief Settlement Commissioner has, therefore, power under sub-section (2) to cancel an allotment if he is satisfied that the order of allotment of land had been "obtained by means of fraud, false representation or concealment of any material fact."The power is judicial and by the use of the expression "is satisfied" the Chief Settlement Commissioner is not made the final arbiter of the facts on which the conclusion is reached. The jurisdiction of the Chief Settlement Commissioner arises only if an allotment is obtained by means of fraud, false representation or concealment of material facts. The relevant satisfaction is a jurisdictional fact on the existence of which alone the power may be exercised. A superior authority or the High Court in a writ petition would, therefore, be entitled to consider whether there was due satisfaction by the Chief Settlement Commissioner on materials placed before him and that the order was made not arbitrarily, capriciously or perversely.7. The Chief Settlement Commissioner had apparently called for the Jamabandi for the year 1957-58 but it was represented that it was missing. He however, relied upon the Khasra-Girdwari for 1950-51 to1955-56 and held that some parts of the land of the village were under cultivation and on that basis he observed that the Enquiry Officer had come to the conclusion that the copies of the Khasra-Girdawari on the basis of which exchange had been obtained were forged and the exchange was liable to be set aside. Even the entries in the Khasra-Girdawari of the earlier years showed that large areas of lands of the village were not capable of full cultivation. There were again the reports of the Patwari, Kanungo-Tahsildar and the Assistant Commissioner that the lands in the village were in danger of being, eroded by the action of the river Sutlej, that the displaced persons who were allottee of the lands were in danger of being deprived of their lands and that alternative allotment of land be made to respondents 1 to 3. The revenue authorities had reported that in the village there was a total area of 1102 acres of cultivable land out of which about 822 acres had been rendered uncultivable and only 280 acres remained cultivable. It appears further that when the river Sutlej was in floods it was difficult to save even the abad land, that the residents of the village were permanently in danger of river erosion and that the Kanungo-Tahsildar regarded the condition of all the allottees as "miserable". The Chief Settlement Commissioner did not refer to the report of the Kanungo-Tahsildar and the Assistant Commissioner on the basis of which the Land Claims Officer had cancelled the original allotment.8. It is clear that the Chief Settlement Commissioner without having the original Khasra-Girdawari before him and without considering the relevant evidence came to the conclusion that the entries produced before the Land Claims Officer in support of their application for cancellation of the allotment were "not genuine". There is in the order of the Chief Settlement Commissioner no reference to any evidence which may support this conclusion. The order of the chief Settlement Commissioner being quasi-judicial in character and his satisfaction not being decisive of the matter, the High Court, in our view, was justified in holding that the conclusion of the Chief Settlement Commissioner, that the respondents 1 to 3 were guilty of fraud, was based on no evidence and the Court was competent to set aside the order of the Chief Settlement Commissioner.
### Response:
0
### Explanation:
7. The Chief Settlement Commissioner had apparently called for the Jamabandifor the yearbut it was represented that it was missing. He however, relied upon the6 and held that some parts of the land of the village were under cultivation and on that basis he observed that the Enquiry Officer had come to the conclusion that the copies of theon the basis of which exchange had been obtained were forged and the exchange was liable to be set aside. Even the entries in theof the earlier years showed that large areas of lands of the village were not capable of full cultivation. There were again the reports of the Patwari,and the Assistant Commissioner that the lands in the village were in danger of being, eroded by the action of the river Sutlej, that the displaced persons who were allottee of the lands were in danger of being deprived of their lands and that alternative allotment of land be made to respondents 1 to 3. The revenue authorities had reported that in the village there was a total area of 1102 acres of cultivable land out of which about 822 acres had been rendered uncultivable and only 280 acres remained cultivable. It appears further that when the river Sutlej was in floods it was difficult to save even the abad land, that the residents of the village were permanently in danger of river erosion and that theregarded the condition of all the allottees as "miserable". The Chief Settlement Commissioner did not refer to the report of theand the Assistant Commissioner on the basis of which the Land Claims Officer had cancelled the original allotment.8. It is clear that the Chief Settlement Commissioner without having the originalbefore him and without considering the relevant evidence came to the conclusion that the entries produced before the Land Claims Officer in support of their application for cancellation of the allotment were "not genuine". There is in the order of the Chief Settlement Commissioner no reference to any evidence which may support this conclusion. The order of the chief Settlement Commissioner beingin character and his satisfaction not being decisive of the matter, the High Court, in our view, was justified in holding that the conclusion of the Chief Settlement Commissioner, that the respondents 1 to 3 were guilty of fraud, was based on no evidence and the Court was competent to set aside the order of the Chief Settlement Commissioner.
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State Of U.P Vs. Abdul Karim | following ante-mortem injuries on his person: 1. Lacerated wound 2.5 cm x .5 cm x scalp deep over left side head 9 cm above left ear, placed obliquely.2. Lacerated wound 2 cm x 5 cm. X scalp deep over right side head 7 cm above right ear, placed obliquely.3. Lacerated wound 3 cm x 1 cm. X scalp deep over top of head in middle, placed obliquely.4. Multiple clotted contusions in an area of 24 cm x 4 cm over outer aspect of right arm from upper to lower end.5. Abraded contusion 3 cm x 2 cm over back of right elbow.6. Contusion 4 cm x 3 cm over dorsum of right hand.7. Multiple abraded contusion in area of 6 cm x 1.7 cm over of left shoulder.8. Multiple abraded contusions in an area of 25 cm x 8 cm over back and anterior aspect of left arm, from shoulder to elbow.9. Two lacerated wounds-one 3 cm x 5 cm x 6 cm deep and other 2 cm x 5 cm x bone deep over back of left forearm in upper third.10. Abraded contusion 10 cm x 4 cm area over back of left forearm.11. Contusion 6 cm x 4 cm over dorsum of left hand and left ring finger is fractured.12. Multiple contusions in an area of 36 cm x 11 cm over outer aspect of left thigh and left buttock placed parallel to each other and two parallel lines in every contusion.13. Multiple lacerated wounds in an area of 21 cm x 5 cm xbone deep over front of left leg.14. Lacerated wound 1 cm x 1 cm x 6 cm deep outer aspect of left knee.15. Multiple contusions in an crea of 6 cm x 2 cm over back of leg in upper third.16. Lacerated wound 4 cm x 1.5 cm x bone deep over front ofright led in middle and both bones are fractured.17. Contusion 4 cm x 3 cm over outer aspect of right knee.18. Contusion 2 cm x 1 cm right side chest 9 cm from nipple at 5 0 clock position.19. Multiple contusions in an area of 43 cm x 26 cm over whole of back from shoulder to waist placed parallel and obliquely. Two parallel lines seen in every contusion. 4. On internal examination, he found parietal bone and axillary bone fractured and brain and membrane congested. Blood present around the membrane. Heart was full on right side with blood whereas it was empty on left side. Stomach and small intestines were empty whereas large intestine was half full. Death was due to shock and haemorrhage resulted through antemortem injuries. He proved postmortem examination report Ex. Ka. 1 and he had sent the same alongwith blood stained shirts and underwear of the deceased in a sealed packet to the Investigating Officer. In his opinion the injuries and death of the deceased was possible at 12-4-1978 at about 7-8 A.M. through iron rod, spade and Kassi. 5. After the investigation was completed charge sheet was filed. But the accused persons pleaded innocence and claimed to be tried. Five witnesses were examined to further the prosecution version. Smt. Mango (PW-1) widow of the deceased, Chhotey (PW-2) brother of wife of the deceased and Mukhtar Ahmad (PW-3) son of the deceased were stated to be eye witnesses. The trial Court found the evidence of PWs 1, 2 and 3 to be credible and cogent and convicted the respondents as afore-stated. 6. In appeal, the High Court analysed the evidence to hold that the prosecution has failed to establish its accusations. Accordingly, the judgment of acquittal was passed. 7. In support of the appeal, learned counsel for the appellant-State submitted that the evidence of PWs 1, 2 and 3 leaves no manner of doubt that the respondents were the assailants and the trial Court had rightly convicted them. 8. Learned counsel for the respondents on the other hand supported the judgment of acquittal. 9. As rightly noted by the High Court the fate of the case depends on the acceptability of the evidence of PWs 1, 2 and 3. PW-1 partially resiled from her statement made during investigation. According to her, she saw the assailants from a distance of one mile. Sugarcanes were standing in the field which intervened between the place where she was and the field where the incident occurred. She accepted that she had not herself seen the assault but saw the accused persons while they were making their escape towards the jungle. As noted above, she claimed to have seen them running from a distance of one mile. She further admitted that in between the village and her field the number of fields were situated where sugarcane and wheat crops were standing.10. PW-2 stated that he had also seen the accused persons committing the assaults. But in the cross examination he admitted that he had come to the place when the assault was over and he had seen the accused persons running towards the jungle in the sugarcane field. He accepted that he was with PW 1.11. PW-3 was a child of 9 years at the time of incident. He also admitted to have seen the accused persons running away with their backs towards him standing near his mother.12. The evidence of PWs 1, 2 and 3 clearly indicated that they were far away from the field where the alleged incident took place. The High Court noted that identification was practically impossible from such a large distance particularly when the field was obstructed by standing crops of sugarcane which were not less than 6-7 ft in height. The High Court therefore rightly observed that they could not have seen the assaults not only because of the distance but because of the presence of heights of crops of sugarcane. Additionally, though all the witnesses stated that the accused persons were carrying sharp cutting weapons and rods, not even one injury was an incised one. All the injuries were either lacerated wounds or contusion. | 0[ds]9. As rightly noted by the High Court the fate of the case depends on the acceptability of the evidence of PWs 1, 2 and 3. PW-1 partially resiled from her statement made during investigation. According to her, she saw the assailants from a distance of one mile. Sugarcanes were standing in the field which intervened between the place where she was and the field where the incident occurred. She accepted that she had not herself seen the assault but saw the accused persons while they were making their escape towards the jungle. As noted above, she claimed to have seen them running from a distance of one mile. She further admitted that in between the village and her field the number of fields were situated where sugarcane and wheat crops were standing.10. PW-2 stated that he had also seen the accused persons committing the assaults. But in the cross examination he admitted that he had come to the place when the assault was over and he had seen the accused persons running towards the jungle in the sugarcane field. He accepted that he was with PW 1.11. PW-3 was a child of 9 years at the time of incident. He also admitted to have seen the accused persons running away with their backs towards him standing near his mother.12. The evidence of PWs 1, 2 and 3 clearly indicated that they were far away from the field where the alleged incident took place. The High Court noted that identification was practically impossible from such a large distance particularly when the field was obstructed by standing crops of sugarcane which were not less than 6-7 ft in height. The High Court therefore rightly observed that they could not have seen the assaults not only because of the distance but because of the presence of heights of crops of sugarcane. Additionally, though all the witnesses stated that the accused persons were carrying sharp cutting weapons and rods, not even one injury was an incised one. All the injuries were either lacerated wounds or contusion. | 0 | 2,030 | 371 | ### 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:
following ante-mortem injuries on his person: 1. Lacerated wound 2.5 cm x .5 cm x scalp deep over left side head 9 cm above left ear, placed obliquely.2. Lacerated wound 2 cm x 5 cm. X scalp deep over right side head 7 cm above right ear, placed obliquely.3. Lacerated wound 3 cm x 1 cm. X scalp deep over top of head in middle, placed obliquely.4. Multiple clotted contusions in an area of 24 cm x 4 cm over outer aspect of right arm from upper to lower end.5. Abraded contusion 3 cm x 2 cm over back of right elbow.6. Contusion 4 cm x 3 cm over dorsum of right hand.7. Multiple abraded contusion in area of 6 cm x 1.7 cm over of left shoulder.8. Multiple abraded contusions in an area of 25 cm x 8 cm over back and anterior aspect of left arm, from shoulder to elbow.9. Two lacerated wounds-one 3 cm x 5 cm x 6 cm deep and other 2 cm x 5 cm x bone deep over back of left forearm in upper third.10. Abraded contusion 10 cm x 4 cm area over back of left forearm.11. Contusion 6 cm x 4 cm over dorsum of left hand and left ring finger is fractured.12. Multiple contusions in an area of 36 cm x 11 cm over outer aspect of left thigh and left buttock placed parallel to each other and two parallel lines in every contusion.13. Multiple lacerated wounds in an area of 21 cm x 5 cm xbone deep over front of left leg.14. Lacerated wound 1 cm x 1 cm x 6 cm deep outer aspect of left knee.15. Multiple contusions in an crea of 6 cm x 2 cm over back of leg in upper third.16. Lacerated wound 4 cm x 1.5 cm x bone deep over front ofright led in middle and both bones are fractured.17. Contusion 4 cm x 3 cm over outer aspect of right knee.18. Contusion 2 cm x 1 cm right side chest 9 cm from nipple at 5 0 clock position.19. Multiple contusions in an area of 43 cm x 26 cm over whole of back from shoulder to waist placed parallel and obliquely. Two parallel lines seen in every contusion. 4. On internal examination, he found parietal bone and axillary bone fractured and brain and membrane congested. Blood present around the membrane. Heart was full on right side with blood whereas it was empty on left side. Stomach and small intestines were empty whereas large intestine was half full. Death was due to shock and haemorrhage resulted through antemortem injuries. He proved postmortem examination report Ex. Ka. 1 and he had sent the same alongwith blood stained shirts and underwear of the deceased in a sealed packet to the Investigating Officer. In his opinion the injuries and death of the deceased was possible at 12-4-1978 at about 7-8 A.M. through iron rod, spade and Kassi. 5. After the investigation was completed charge sheet was filed. But the accused persons pleaded innocence and claimed to be tried. Five witnesses were examined to further the prosecution version. Smt. Mango (PW-1) widow of the deceased, Chhotey (PW-2) brother of wife of the deceased and Mukhtar Ahmad (PW-3) son of the deceased were stated to be eye witnesses. The trial Court found the evidence of PWs 1, 2 and 3 to be credible and cogent and convicted the respondents as afore-stated. 6. In appeal, the High Court analysed the evidence to hold that the prosecution has failed to establish its accusations. Accordingly, the judgment of acquittal was passed. 7. In support of the appeal, learned counsel for the appellant-State submitted that the evidence of PWs 1, 2 and 3 leaves no manner of doubt that the respondents were the assailants and the trial Court had rightly convicted them. 8. Learned counsel for the respondents on the other hand supported the judgment of acquittal. 9. As rightly noted by the High Court the fate of the case depends on the acceptability of the evidence of PWs 1, 2 and 3. PW-1 partially resiled from her statement made during investigation. According to her, she saw the assailants from a distance of one mile. Sugarcanes were standing in the field which intervened between the place where she was and the field where the incident occurred. She accepted that she had not herself seen the assault but saw the accused persons while they were making their escape towards the jungle. As noted above, she claimed to have seen them running from a distance of one mile. She further admitted that in between the village and her field the number of fields were situated where sugarcane and wheat crops were standing.10. PW-2 stated that he had also seen the accused persons committing the assaults. But in the cross examination he admitted that he had come to the place when the assault was over and he had seen the accused persons running towards the jungle in the sugarcane field. He accepted that he was with PW 1.11. PW-3 was a child of 9 years at the time of incident. He also admitted to have seen the accused persons running away with their backs towards him standing near his mother.12. The evidence of PWs 1, 2 and 3 clearly indicated that they were far away from the field where the alleged incident took place. The High Court noted that identification was practically impossible from such a large distance particularly when the field was obstructed by standing crops of sugarcane which were not less than 6-7 ft in height. The High Court therefore rightly observed that they could not have seen the assaults not only because of the distance but because of the presence of heights of crops of sugarcane. Additionally, though all the witnesses stated that the accused persons were carrying sharp cutting weapons and rods, not even one injury was an incised one. All the injuries were either lacerated wounds or contusion.
### Response:
0
### Explanation:
9. As rightly noted by the High Court the fate of the case depends on the acceptability of the evidence of PWs 1, 2 and 3. PW-1 partially resiled from her statement made during investigation. According to her, she saw the assailants from a distance of one mile. Sugarcanes were standing in the field which intervened between the place where she was and the field where the incident occurred. She accepted that she had not herself seen the assault but saw the accused persons while they were making their escape towards the jungle. As noted above, she claimed to have seen them running from a distance of one mile. She further admitted that in between the village and her field the number of fields were situated where sugarcane and wheat crops were standing.10. PW-2 stated that he had also seen the accused persons committing the assaults. But in the cross examination he admitted that he had come to the place when the assault was over and he had seen the accused persons running towards the jungle in the sugarcane field. He accepted that he was with PW 1.11. PW-3 was a child of 9 years at the time of incident. He also admitted to have seen the accused persons running away with their backs towards him standing near his mother.12. The evidence of PWs 1, 2 and 3 clearly indicated that they were far away from the field where the alleged incident took place. The High Court noted that identification was practically impossible from such a large distance particularly when the field was obstructed by standing crops of sugarcane which were not less than 6-7 ft in height. The High Court therefore rightly observed that they could not have seen the assaults not only because of the distance but because of the presence of heights of crops of sugarcane. Additionally, though all the witnesses stated that the accused persons were carrying sharp cutting weapons and rods, not even one injury was an incised one. All the injuries were either lacerated wounds or contusion.
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Manocha Construction Company Vs. State Of M.P. | we were instructed to construct the temporary bunch for stopping the flow of river to enable the department to clear the dam seat of Nalla portion. The work was taken up by us in the month of October 1985 and the same was completed in the month of November 1985. We were paid the rate of Rs. 14/- per Cum (tendered rate) for this item of work for the total of 48651.67 Cums in our running bills No. 20 dated 15.3.86 and 21 dated 4.5.86." 7. The dispute referred to the Arbitration Tribunal related to the rate payable for this work. In its first award dated 14.7.1988, the Arbitration Tribunal had considered that the additional work related to the temporary bund constructed by the appellant and the total earth work done by him was 49027.64 Cubic Meters. Therefore, there cannot be any dispute that the additional work related to the construction of the temporary bund. It is also not possible for the appellant to contend that this work was carried out in May, 1986 after the receipt of Exh. P-12 letter dated 5.4.1986 from the Superintending Engineer. The contention of the appellant (1) that there was correspondence between the appellant and the Executive Engineer in charge of the construction work regarding the rate payable to the appellant; (ii) that the appellant by letter dated 6.4.1986 had only provisionally agreed for the rate of Rs. 25.25 per Cubic Meter; and (iii) that he had been claiming the rate of Rs. 34.50 per Cubic Meter is incorrect. Reference was made to the letter dated 5.4.1986 of the Executive Engineer and the appellants letter dated 6.4.1986 of addressed to the Superintending Engineer. It is clear that these letters and some other similar correspondence referred to by the appellant, related to the additional earth work, if any, done by the appellant in excess of the quantity of the earth work agreed to by him in respect of the main Dam. In the letter dated 31.10.1986 written by the appellant to the Executive Engineer, the appellant had made a reference to the construction of a temporary `bund and it was stated therein that he had under taken that work under instructions of the Executive Engineer and the payment for the same was agreed at the rates of earthen dam. The respondent on the other hand contended that this work itself was an unauthorised work. We need not, however, dilate on that aspect as the Division Bench in its earlier order had stated that the appellant was entitled to get payment for the work relating to temporary `bund. 8. The learned counsel for the appellant contended that the Superintending Engineer, by his letter dated 5.4.1986 (Exh. P-12) had agreed to pay are the rate of Rs. 25.25 per Cubic Meter and in the face of this admission it was not correct on the part of the Arbitration Tribunal to fix the rate at Rs. 15.75 per Cubic Meter. This letter referred to by the appellant is certainly not in respect of the temporary `bund constructed by the appellant in 1985. It seems that thee was a dispute with regard to the rate payable for the additional work in respect of the main Dam. Though the appellant claimed Rs. 34.50 per Cubic meter, the Superintending Engineer by his letter dated 5.4.1986 agreed to pay Rs. 25.25 per Cubic Meter. For this additional quantity of the work, the appellant was paid in excess of the contract rate. 9. However, the dispute before the Arbitration Tribunal was with regard to the temporary `bund and its work was completed by November/December, 1985 and the total earth work was 49027.64 Cubic Meters. The Tribunal went into this question and fixed the rate having due regard to sub-clause (d) of Clause 4.3,13,3 of the agreement which is to the following effect ; "If the rates for the altered, additional or substituted work cannot be determined in the manner specified in the Sub-clause (a), (b),(c) above, the S.E. shall determine the rate or rates and fix the same on the basis of prevailing market rates to include prime cost of material and labour charges (inclusive of hourly wise rates as determined by the department for machinery and equipments if used) plus 15% extra to cover the sundry, overhead charges and profits etc. of the contractor." 10. On the basis of the above clause, the Tribunal considered the prevailing market rates, including the cost of material and labour charges and an additional 15% was added to cover the sundry charges to arrive at the rate. The details are given in the award. Learned counsel for the appellant could not point out any defect or illegality committed by the Tribunal in fixing the rate payable for the additional work. When it was proved that the additional earth work as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. The learned counsel for the appellant lastly contended that by its earlier award dated 14.7.1988 the Arbitration Tribunal had fixed the rate of Rs. 22/- per Cubic Meter for the earth work and that the Civil Revision filed by the respondent State Govt. against that award had been dismissed. Therefore, it was argued that at least the appellant should be entitled to get therate of Rs. 22/- per Cubic Meter. we do not find any substance in this contention. In the order passed by the Division Bench of the High Court on 26.7.1990, it was specifically stated that the rate for the additional earth work is to be refixed in accordance with the provisions of Clause 4.3.13.3 of the agreement and it was accordingly done by the Tribunal. When a fresh award has been passed by the Tribunal. whatever award passed by it earlier loses its significance.12. We are of the view that the appellant failed to establish that there was any error of jurisdiction, illegality or material irregularity warranting interference by the Revisional court. 13. | 0[ds]10. On the basis of the above clause, the Tribunal considered the prevailing market rates, including the cost of material and labour charges and an additional 15% was added to cover the sundry charges to arrive at the rate. The details are given in the award. Learned counsel for the appellant could not point out any defect or illegality committed by the Tribunal in fixing the rate payable for the additional work. When it was proved that the additional earth work as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. The learned counsel for the appellant lastly contended that by its earlier award dated 14.7.1988 the Arbitration Tribunal had fixed the rate of Rs. 22/per Cubic Meter for the earth work and that the Civil Revision filed by the respondent State Govt. against that award had been dismissed. Therefore, it was argued that at least the appellant should be entitled to get therate of Rs. 22/per Cubic Meter. we do not find any substance in this contention. In the order passed by the Division Bench of the High Court on 26.7.1990, it was specifically stated that the rate for the additional earth work is to be refixed in accordance with the provisions of Clause 4.3.13.3 of the agreement and it was accordingly done by the Tribunal. When a fresh award has been passed by the Tribunal. whatever award passed by it earlier loses its significance.12. We are of the view that the appellant failed to establish that there was any error of jurisdiction, illegality or material irregularity warranting interference by the Revisional court. | 0 | 2,256 | 302 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
we were instructed to construct the temporary bunch for stopping the flow of river to enable the department to clear the dam seat of Nalla portion. The work was taken up by us in the month of October 1985 and the same was completed in the month of November 1985. We were paid the rate of Rs. 14/- per Cum (tendered rate) for this item of work for the total of 48651.67 Cums in our running bills No. 20 dated 15.3.86 and 21 dated 4.5.86." 7. The dispute referred to the Arbitration Tribunal related to the rate payable for this work. In its first award dated 14.7.1988, the Arbitration Tribunal had considered that the additional work related to the temporary bund constructed by the appellant and the total earth work done by him was 49027.64 Cubic Meters. Therefore, there cannot be any dispute that the additional work related to the construction of the temporary bund. It is also not possible for the appellant to contend that this work was carried out in May, 1986 after the receipt of Exh. P-12 letter dated 5.4.1986 from the Superintending Engineer. The contention of the appellant (1) that there was correspondence between the appellant and the Executive Engineer in charge of the construction work regarding the rate payable to the appellant; (ii) that the appellant by letter dated 6.4.1986 had only provisionally agreed for the rate of Rs. 25.25 per Cubic Meter; and (iii) that he had been claiming the rate of Rs. 34.50 per Cubic Meter is incorrect. Reference was made to the letter dated 5.4.1986 of the Executive Engineer and the appellants letter dated 6.4.1986 of addressed to the Superintending Engineer. It is clear that these letters and some other similar correspondence referred to by the appellant, related to the additional earth work, if any, done by the appellant in excess of the quantity of the earth work agreed to by him in respect of the main Dam. In the letter dated 31.10.1986 written by the appellant to the Executive Engineer, the appellant had made a reference to the construction of a temporary `bund and it was stated therein that he had under taken that work under instructions of the Executive Engineer and the payment for the same was agreed at the rates of earthen dam. The respondent on the other hand contended that this work itself was an unauthorised work. We need not, however, dilate on that aspect as the Division Bench in its earlier order had stated that the appellant was entitled to get payment for the work relating to temporary `bund. 8. The learned counsel for the appellant contended that the Superintending Engineer, by his letter dated 5.4.1986 (Exh. P-12) had agreed to pay are the rate of Rs. 25.25 per Cubic Meter and in the face of this admission it was not correct on the part of the Arbitration Tribunal to fix the rate at Rs. 15.75 per Cubic Meter. This letter referred to by the appellant is certainly not in respect of the temporary `bund constructed by the appellant in 1985. It seems that thee was a dispute with regard to the rate payable for the additional work in respect of the main Dam. Though the appellant claimed Rs. 34.50 per Cubic meter, the Superintending Engineer by his letter dated 5.4.1986 agreed to pay Rs. 25.25 per Cubic Meter. For this additional quantity of the work, the appellant was paid in excess of the contract rate. 9. However, the dispute before the Arbitration Tribunal was with regard to the temporary `bund and its work was completed by November/December, 1985 and the total earth work was 49027.64 Cubic Meters. The Tribunal went into this question and fixed the rate having due regard to sub-clause (d) of Clause 4.3,13,3 of the agreement which is to the following effect ; "If the rates for the altered, additional or substituted work cannot be determined in the manner specified in the Sub-clause (a), (b),(c) above, the S.E. shall determine the rate or rates and fix the same on the basis of prevailing market rates to include prime cost of material and labour charges (inclusive of hourly wise rates as determined by the department for machinery and equipments if used) plus 15% extra to cover the sundry, overhead charges and profits etc. of the contractor." 10. On the basis of the above clause, the Tribunal considered the prevailing market rates, including the cost of material and labour charges and an additional 15% was added to cover the sundry charges to arrive at the rate. The details are given in the award. Learned counsel for the appellant could not point out any defect or illegality committed by the Tribunal in fixing the rate payable for the additional work. When it was proved that the additional earth work as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. The learned counsel for the appellant lastly contended that by its earlier award dated 14.7.1988 the Arbitration Tribunal had fixed the rate of Rs. 22/- per Cubic Meter for the earth work and that the Civil Revision filed by the respondent State Govt. against that award had been dismissed. Therefore, it was argued that at least the appellant should be entitled to get therate of Rs. 22/- per Cubic Meter. we do not find any substance in this contention. In the order passed by the Division Bench of the High Court on 26.7.1990, it was specifically stated that the rate for the additional earth work is to be refixed in accordance with the provisions of Clause 4.3.13.3 of the agreement and it was accordingly done by the Tribunal. When a fresh award has been passed by the Tribunal. whatever award passed by it earlier loses its significance.12. We are of the view that the appellant failed to establish that there was any error of jurisdiction, illegality or material irregularity warranting interference by the Revisional court. 13.
### Response:
0
### Explanation:
10. On the basis of the above clause, the Tribunal considered the prevailing market rates, including the cost of material and labour charges and an additional 15% was added to cover the sundry charges to arrive at the rate. The details are given in the award. Learned counsel for the appellant could not point out any defect or illegality committed by the Tribunal in fixing the rate payable for the additional work. When it was proved that the additional earth work as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. The learned counsel for the appellant lastly contended that by its earlier award dated 14.7.1988 the Arbitration Tribunal had fixed the rate of Rs. 22/per Cubic Meter for the earth work and that the Civil Revision filed by the respondent State Govt. against that award had been dismissed. Therefore, it was argued that at least the appellant should be entitled to get therate of Rs. 22/per Cubic Meter. we do not find any substance in this contention. In the order passed by the Division Bench of the High Court on 26.7.1990, it was specifically stated that the rate for the additional earth work is to be refixed in accordance with the provisions of Clause 4.3.13.3 of the agreement and it was accordingly done by the Tribunal. When a fresh award has been passed by the Tribunal. whatever award passed by it earlier loses its significance.12. We are of the view that the appellant failed to establish that there was any error of jurisdiction, illegality or material irregularity warranting interference by the Revisional court.
|
SURESH KUMAR KOHLI Vs. RAKESH JAIN | 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne Hindu Law, 12th Edn., pp. 918-19.24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to ‘amend’ the law, with that background the express language which excludes son’s son but includes son of a predeceased son cannot be ignored.25. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court 8 , the Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.”17. In Bhanwar Singh v. Puran, this Court followed Chander Sen case and the various judgments following Chander Sen case. This Court held:“12. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided.13. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Class I of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants.14. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of-rights. A partition had taken place amongst the heirs of Bhima.15. Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.”19. From a perusal of lease deed dated 15.11.1975, we find that the suit premises was let out jointly to late Shri Ishwar Chand Jain and Shri Ramesh Chand Jain, son of late Shri Ishwar Chand Jain. Thus, both of them were joint tenants and upon the death of Shri Ishwar Chand Jain, Respondent No. 1 inherited the tenancy as joint tenant only. Further, in view of a catena of decisions of this Court on the subject as well as the principles laid down in H.C. Pandey (supra), we are of the opinion that the High Court erred in holding that the decisions relied upon by learned senior counsel for the appellant are not applicable to the facts of the present case on the premise that in the given case itself the validity and binding nature of the notice given to one of the legal representatives of the deceased tenant under Section 106 of the Transfer of property Act, 1882 on other legal representatives was determined only on the basis of the fact that they hold the tenancy as joint tenants and notice given to one means notice given to all. Conclusion:-20. We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.21. Even otherwise, the intervention at this belated stage of execution proceedings, in the fact and circumstances of the case, seems to be a deliberate attempt to nullify the decree passed in favour of the appellant herein as when Respondent No.1 filed objections under Section 47 Order XXI of the Code, he claimed to be in possession of the suit premises, however, he failed to produce any evidence except two rent receipts for the months of December, 1993 and January 1994 that too when the Respondent No. 1 in his objection petition filed in the execution proceedings of the eviction decree has himself admitted that the there exists a dispute between him and Respondent No. 2 and they had parted their ways.22. | 1[ds]From a perusal of lease deed dated 15.11.1975, we find that the suit premises was let out jointly to late Shri Ishwar Chand Jain and Shri Ramesh Chand Jain, son of late Shri Ishwar Chand Jain. Thus, both of them were joint tenants and upon the death of Shri Ishwar Chand Jain, Respondent No. 1 inherited the tenancy as joint tenant only. Further, in view of a catena of decisions of this Court on the subject as well as the principles laid down in H.C. Pandey (supra), we are of the opinion that the High Court erred in holding that the decisions relied upon by learned senior counsel for the appellant are not applicable to the facts of the present case on the premise that in the given case itself the validity and binding nature of the notice given to one of the legal representatives of the deceased tenant under Section 106 of the Transfer of property Act, 1882 on other legal representatives was determined only on the basis of the fact that they hold the tenancy as joint tenants and notice given to one means notice given to all.We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count mustEven otherwise, the intervention at this belated stage of execution proceedings, in the fact and circumstances of the case, seems to be a deliberate attempt to nullify the decree passed in favour of the appellant herein as when Respondent No.1 filed objections under Section 47 Order XXI of the Code, he claimed to be in possession of the suit premises, however, he failed to produce any evidence except two rent receipts for the months of December, 1993 and January 1994 that too when the Respondent No. 1 in his objection petition filed in the execution proceedings of the eviction decree has himself admitted that the there exists a dispute between him and Respondent No. 2 and they had parted their ways. | 1 | 8,744 | 530 | ### 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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6 of the Hindu Succession Act at pp. 924-26 as well as Mayne Hindu Law, 12th Edn., pp. 918-19.24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to ‘amend’ the law, with that background the express language which excludes son’s son but includes son of a predeceased son cannot be ignored.25. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court 8 , the Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.”17. In Bhanwar Singh v. Puran, this Court followed Chander Sen case and the various judgments following Chander Sen case. This Court held:“12. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided.13. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Class I of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants.14. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of-rights. A partition had taken place amongst the heirs of Bhima.15. Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.”19. From a perusal of lease deed dated 15.11.1975, we find that the suit premises was let out jointly to late Shri Ishwar Chand Jain and Shri Ramesh Chand Jain, son of late Shri Ishwar Chand Jain. Thus, both of them were joint tenants and upon the death of Shri Ishwar Chand Jain, Respondent No. 1 inherited the tenancy as joint tenant only. Further, in view of a catena of decisions of this Court on the subject as well as the principles laid down in H.C. Pandey (supra), we are of the opinion that the High Court erred in holding that the decisions relied upon by learned senior counsel for the appellant are not applicable to the facts of the present case on the premise that in the given case itself the validity and binding nature of the notice given to one of the legal representatives of the deceased tenant under Section 106 of the Transfer of property Act, 1882 on other legal representatives was determined only on the basis of the fact that they hold the tenancy as joint tenants and notice given to one means notice given to all. Conclusion:-20. We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.21. Even otherwise, the intervention at this belated stage of execution proceedings, in the fact and circumstances of the case, seems to be a deliberate attempt to nullify the decree passed in favour of the appellant herein as when Respondent No.1 filed objections under Section 47 Order XXI of the Code, he claimed to be in possession of the suit premises, however, he failed to produce any evidence except two rent receipts for the months of December, 1993 and January 1994 that too when the Respondent No. 1 in his objection petition filed in the execution proceedings of the eviction decree has himself admitted that the there exists a dispute between him and Respondent No. 2 and they had parted their ways.22.
### Response:
1
### Explanation:
From a perusal of lease deed dated 15.11.1975, we find that the suit premises was let out jointly to late Shri Ishwar Chand Jain and Shri Ramesh Chand Jain, son of late Shri Ishwar Chand Jain. Thus, both of them were joint tenants and upon the death of Shri Ishwar Chand Jain, Respondent No. 1 inherited the tenancy as joint tenant only. Further, in view of a catena of decisions of this Court on the subject as well as the principles laid down in H.C. Pandey (supra), we are of the opinion that the High Court erred in holding that the decisions relied upon by learned senior counsel for the appellant are not applicable to the facts of the present case on the premise that in the given case itself the validity and binding nature of the notice given to one of the legal representatives of the deceased tenant under Section 106 of the Transfer of property Act, 1882 on other legal representatives was determined only on the basis of the fact that they hold the tenancy as joint tenants and notice given to one means notice given to all.We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count mustEven otherwise, the intervention at this belated stage of execution proceedings, in the fact and circumstances of the case, seems to be a deliberate attempt to nullify the decree passed in favour of the appellant herein as when Respondent No.1 filed objections under Section 47 Order XXI of the Code, he claimed to be in possession of the suit premises, however, he failed to produce any evidence except two rent receipts for the months of December, 1993 and January 1994 that too when the Respondent No. 1 in his objection petition filed in the execution proceedings of the eviction decree has himself admitted that the there exists a dispute between him and Respondent No. 2 and they had parted their ways.
|
Commnr., Sales Tax, U.P Vs. S/S. Bharat Bone Mill | of words used in different statutes. It is firmly settled that the interpretation or definition clause occurring in a statute can be used only for the purpose of interpreting words appearing in that statute and not for the purpose of interpreting words appearing in other statutes. To take a word bearing a peculiar meaning in a particular Act and to clothe that word with the same meaning when found in different context in a different Act is a fallacious process of interpretation. The Tribunal was, therefore, not justified in pressing into service the definition of "fertilizer" given in the Fertilizer (Control) Order, 1957-a statutory provision, the scope and object of which is altogether different from the Sales Tax Act. The Tribunal was, therefore, in error in remanding the matter to the Sales Tax Officer for a fresh decision after determining whether the produce manufactured by the assessee was or was not a "fertilizer" according to the definition of that term given in the Fertilizer (Control) Order, 1957." 8. The said view was approved by a Full Bench of the said Court in The Ratlam Bone & Fertilizer Co. vs. The State of Madhya Pradesh and Another [35 STC 132] . 9. In Yasin Bone Mills vs. State of U.P. and Another [46 STC 112 : 1980 UPTC 450], the Allahabad High Court considered a report of the Directorate of Marketing and Inspection, Ministry of Food and Agriculture, Government of India, in terms whereof four products were obtained from bones known as: (1) Bones sinews, (2) Crushed bones, (3) Bone grits, and (4) Bone meal. The characteristics of the said four products from bones are said to be different. The learned Judges also referred to the Standard Cyclopedia of Modern Agriculture, wherein a distinction had been drawn between `bone meal and `crushed bone, on the basis whereof it was opined: "6. As noted above in the instant case the assessee is dealing in crushed bones and not bone-meal. The distinction between the two-commodities is quite clear on the basis of the information contained in the report of the Directorate of Marketing and Inspection, Ministry of Food and Agriculture, Government of India and the Standard Cyclopaedia of Modern Agriculture referred to above. It is not possible, therefore, to hold that crushed bones are fertilisers. Apart from this the assessee himself does not appear to have been making sales of crushed bones as fertilisers. This commodity is not sold by the assessee in the country and the turnover of the years under consideration goes to show that almost the whole of it was in the form of exports to foreign countries. As noted above crushed bones are meant for use as raw material in the manufacture of glue and gelatine, the industries which have not developed to any appreciable extent in India and, hence, this commodity has to be exported to countries outside India." 9. Therein reliance was placed on the opinions of some experts to establish ‘crushed bone and ‘fertilizers. The Court, however, found the report of the Directorate of Marketing and Inspection more creditworthy, opining that bone-meal and not crushed bones can be treated as fertilizers. 10. Moreover, it is well-known that the question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions of taxing statute in respect of former commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. We have noticed hereinabove the difference between ‘bone meal and `crushed bone. Different utilities of the said items has also been noticed by the Allahabad High Court itself. The High Court or for that matter, the Tribunal did not have the advantage of opinion of the expert to the effect as to whether crushed bones can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fertilizer. 11. For the reasons aforementioned, we set aside the orders of the Assessing Authorities including that of the High Court. However, we intend to leave the question open for subsequent cases, if any. 12. There is another aspect of the matter, notice whereof must be taken by us, viz., the Assessing Authority proceeded to determine the taxability in view of the decisions, as were prevailing. It sought to rectify its order keeping in view the subsequent decisions. The question which arose for consideration before the Tribunal was as to whether the Assessing Authority could pass such an order having regard to the power of rectification in terms of Section 22 of the Act. 13. This aspect of the matter has been considered in The Income – Tax Officer, Alwaye vs. The Ashok Textiles Ltd., Alwaye [(1961) 3 SCR 236] wherein it was held that the provisions for rectification of "mistakes apparent on the record" cannot be equated with a power of a civil court to review its own order as envisaged under Order XL VII Rule 1 of the Code of Civil Procedure stating: "The learned Judges of the High Court seem to have fallen into an error in equating the language and scope of s. 35 of the Act with that of O.47, r.1, Civil Procedure Code. The language of the two is different because according to s. 35 of the Act which provides for rectification of mistakes the power is given to the various income-tax authorities within four years from the date of any assessment passed by them to rectify any mistake "apparent from the record" and in the Civil Procedure Code the words are "an error apparent on the face of the record" and the two provisions do not mean the same thing." 14. | 1[ds]is well-known that the question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions of taxing statute in respect of former commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. We have noticed hereinabove the difference between ‘bone meal and `crushed bone. Different utilities of the said items has also been noticed by the Allahabad High Court itself. The High Court or for that matter, the Tribunal did not have the advantage of opinion of the expert to the effect as to whether crushed bones can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fertilizer. | 1 | 1,772 | 193 | ### 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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of words used in different statutes. It is firmly settled that the interpretation or definition clause occurring in a statute can be used only for the purpose of interpreting words appearing in that statute and not for the purpose of interpreting words appearing in other statutes. To take a word bearing a peculiar meaning in a particular Act and to clothe that word with the same meaning when found in different context in a different Act is a fallacious process of interpretation. The Tribunal was, therefore, not justified in pressing into service the definition of "fertilizer" given in the Fertilizer (Control) Order, 1957-a statutory provision, the scope and object of which is altogether different from the Sales Tax Act. The Tribunal was, therefore, in error in remanding the matter to the Sales Tax Officer for a fresh decision after determining whether the produce manufactured by the assessee was or was not a "fertilizer" according to the definition of that term given in the Fertilizer (Control) Order, 1957." 8. The said view was approved by a Full Bench of the said Court in The Ratlam Bone & Fertilizer Co. vs. The State of Madhya Pradesh and Another [35 STC 132] . 9. In Yasin Bone Mills vs. State of U.P. and Another [46 STC 112 : 1980 UPTC 450], the Allahabad High Court considered a report of the Directorate of Marketing and Inspection, Ministry of Food and Agriculture, Government of India, in terms whereof four products were obtained from bones known as: (1) Bones sinews, (2) Crushed bones, (3) Bone grits, and (4) Bone meal. The characteristics of the said four products from bones are said to be different. The learned Judges also referred to the Standard Cyclopedia of Modern Agriculture, wherein a distinction had been drawn between `bone meal and `crushed bone, on the basis whereof it was opined: "6. As noted above in the instant case the assessee is dealing in crushed bones and not bone-meal. The distinction between the two-commodities is quite clear on the basis of the information contained in the report of the Directorate of Marketing and Inspection, Ministry of Food and Agriculture, Government of India and the Standard Cyclopaedia of Modern Agriculture referred to above. It is not possible, therefore, to hold that crushed bones are fertilisers. Apart from this the assessee himself does not appear to have been making sales of crushed bones as fertilisers. This commodity is not sold by the assessee in the country and the turnover of the years under consideration goes to show that almost the whole of it was in the form of exports to foreign countries. As noted above crushed bones are meant for use as raw material in the manufacture of glue and gelatine, the industries which have not developed to any appreciable extent in India and, hence, this commodity has to be exported to countries outside India." 9. Therein reliance was placed on the opinions of some experts to establish ‘crushed bone and ‘fertilizers. The Court, however, found the report of the Directorate of Marketing and Inspection more creditworthy, opining that bone-meal and not crushed bones can be treated as fertilizers. 10. Moreover, it is well-known that the question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions of taxing statute in respect of former commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. We have noticed hereinabove the difference between ‘bone meal and `crushed bone. Different utilities of the said items has also been noticed by the Allahabad High Court itself. The High Court or for that matter, the Tribunal did not have the advantage of opinion of the expert to the effect as to whether crushed bones can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fertilizer. 11. For the reasons aforementioned, we set aside the orders of the Assessing Authorities including that of the High Court. However, we intend to leave the question open for subsequent cases, if any. 12. There is another aspect of the matter, notice whereof must be taken by us, viz., the Assessing Authority proceeded to determine the taxability in view of the decisions, as were prevailing. It sought to rectify its order keeping in view the subsequent decisions. The question which arose for consideration before the Tribunal was as to whether the Assessing Authority could pass such an order having regard to the power of rectification in terms of Section 22 of the Act. 13. This aspect of the matter has been considered in The Income – Tax Officer, Alwaye vs. The Ashok Textiles Ltd., Alwaye [(1961) 3 SCR 236] wherein it was held that the provisions for rectification of "mistakes apparent on the record" cannot be equated with a power of a civil court to review its own order as envisaged under Order XL VII Rule 1 of the Code of Civil Procedure stating: "The learned Judges of the High Court seem to have fallen into an error in equating the language and scope of s. 35 of the Act with that of O.47, r.1, Civil Procedure Code. The language of the two is different because according to s. 35 of the Act which provides for rectification of mistakes the power is given to the various income-tax authorities within four years from the date of any assessment passed by them to rectify any mistake "apparent from the record" and in the Civil Procedure Code the words are "an error apparent on the face of the record" and the two provisions do not mean the same thing." 14.
### Response:
1
### Explanation:
is well-known that the question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions of taxing statute in respect of former commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. We have noticed hereinabove the difference between ‘bone meal and `crushed bone. Different utilities of the said items has also been noticed by the Allahabad High Court itself. The High Court or for that matter, the Tribunal did not have the advantage of opinion of the expert to the effect as to whether crushed bones can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fertilizer.
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Rao Nihalkaran Vs. Ramgopal | of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of the Code.13. The alternative argument that S. 185 of the Code has no application in respect of pending proceedings for ejectment is without substance. By S. 261 of the Code a large number of statutes specified in Sch. II were repealed. By S. 261 certain enactments specified in Sch. II including the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 and the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 32 of 1954 were wholly repealed. But it is expressly provided in S. 261 that the repeal shall not affect-(a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation of liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed. Section 262 which deals with transitory provision by sub-s. (2) provides:"Any case pending in Civil Court at the coming into force of this Code, which would under this Code be exclusuvely triable by a Revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the commencement of this Code."14. Relying upon these two provisions it was urged that persons who were tenants, sub-tenants or ordinary tenants of Inam land prior to the date on which the Code was brought into force, whose rights have consistently with the law in force before that date been terminated, cannot set up rights of occupancy tenants acquired under S. 185, for, within the meaning of S. 261 the right to eject a tenant has accrued to the landlord before the commencement of the Code and a proceeding for enforcement of that right may be continued and the right enforced as if the Code had not been passed, and the Court in which the proceeding is pending would be bound to dispose of the proceeding according to the law in force prior to the commencement of the Code. The argument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.15. Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force.16. | 0[ds]The definition of the expression "tenant in Section 2 (y) postulates a subsisting tenancy, but that definition may be resorted to for interpreting S. 185 (1) only if the context or the subject-matter of the section does not suggest a different meaning. A tenant is by the definition a person who holds land as an occupancy tenant from a Bhumiswami: but the status of a Bhumiswami is recognized for the first time by the Code, and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does not appear to have been dealt with in this definition. The definition which is specially devised for the purpose of the Act throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code. In the context in which the expression "tenant occurs in S. 185 the definition could not be intended to apply in determining the conditions which invest upon a holder of land the status of an occupancy tenant. If the expression "tenant in S. 185 (1) be released from the artificial definition as given in S. 2 (y), in view of the context in which it occurs, the expression "tenant in S. 185 (1) (ii) (a), having regard to the object of the enactment would be ascribed the meaning that expression had in Act 32 of 1954.This view is strengthened by certain indications found in Cl. (ii) (b) of S. 185 (1) which provides that in the Madhya Bharat region every person who at the commencement of the Code holds any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-Lessee Protection Act, 29 of 1955 shall be called an occupancy tenant. Unless a ryotwari sub-lessee as defined in Act 29 of 1955 included a sub-lessee whose tenure was terminated before the commencement of the Code, that clause would not apply to any concrete case. The Court would not unless compelled by unambiguous language impute to the Legislature an intention to enact a provision which was ineffective. By S. 73 of Act 66 of 1950 a Pakka tenant could not sub-let for any period any land comprised in his holding except in the cases provided for in S. 74, and by S. 75 it was provided that all sub-leases in force at the commencement of the Act were to terminate either on the expiry of the period of sub-lease or expiry of four years whichever was earlier. All sub-leases except those which were covered by S. 74, i.e., sub-leases granted by disabled persons before the commencement of Act 66 of 1950 stood terminated some time before the end of 1954 and by the express terms of S. 76 the sub-lessees were to be deemed trespassers and liable to ejectment in accordance with the provisions of the Act.Notwithstanding these provisions, by another Act 29 of 1955, scheme of which was substantially the same as the scheme of Act 32 of 1954 ejectment of ryotwari sub-lessees other than a sub-lessee under S. 74 of Act 66 of 1950 was supended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed. By S. 2 (b) of Act 29 of 1955 "Ryotwari sub-lessee" was defined as meaning" a person to whom a Pakka tenant of any ryotwari land has sub-let on sub-lease any part of his ryotwari land". By S. 3 a ban was imposed against ejectment of all ryotwari sub-lessees other than sub-lessees under S. 74 of Act 66 of 1950. By S. 4 provision was made for ejectment of ryotwari sub-lessees and provisions similar to Ss. 5 and 6 of Act 32 of 1954 were made in this Act also. A ban was, therefore, imposed against eviction of ryotwari sub-lessees and proceedings for eviction againt them were stayed by Act 29 of 1955. Therefore, ryotwari sub-lessees who had ceased by determination of the sub-leases to have right in the lands were still protected from eviction during the pendency of Act 29 of 1955, and by S. 185 (1) (ii) (b) of the Code upon the ryotwari sub-lessees the rights of occupancy tenants were conferred. If the expression "ryotwari sub-lessee" were to be construed to mean a ryotwari sub-lessee between whom and his lessor there was a subsisting contract of sub-letting, the protection for all purposes would be ineffective, for, by express statutory provision read with S. 74 of Act 66 of 1950 all ryotwari sub-leases stood determined before Act 29 of 1955 was brought into force, and by virtue of S. 185 (3) of the Code a holder of land from a disabled Bhumiswami belonging to a class mentioned in S. 168 (2) of the Code does not qualify for the status of an occupancy tenant. It may be noticed that in the class of disabled persons in sub-s. (2) of S. 162 of the Code are included all persons who are declared disabled by sub-s. (2) of S. 74 of Act 66 of 1950.If ryotwari sub-lessees of disabled persons mentioned in sub-s. (2) of S. 74 of Act 66 of 1950 cannot claim rights of occupancy tenants by virtue of S. 185 (3) of the Code and other ryotwari sub-lessees cannot qualify for those rights because of the determination of their interest as sub-lessees by virtue of Ss. 75 and 76 of Act 66 of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of theargument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force. | 0 | 4,323 | 1,713 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of the Code.13. The alternative argument that S. 185 of the Code has no application in respect of pending proceedings for ejectment is without substance. By S. 261 of the Code a large number of statutes specified in Sch. II were repealed. By S. 261 certain enactments specified in Sch. II including the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 and the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 32 of 1954 were wholly repealed. But it is expressly provided in S. 261 that the repeal shall not affect-(a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation of liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed. Section 262 which deals with transitory provision by sub-s. (2) provides:"Any case pending in Civil Court at the coming into force of this Code, which would under this Code be exclusuvely triable by a Revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the commencement of this Code."14. Relying upon these two provisions it was urged that persons who were tenants, sub-tenants or ordinary tenants of Inam land prior to the date on which the Code was brought into force, whose rights have consistently with the law in force before that date been terminated, cannot set up rights of occupancy tenants acquired under S. 185, for, within the meaning of S. 261 the right to eject a tenant has accrued to the landlord before the commencement of the Code and a proceeding for enforcement of that right may be continued and the right enforced as if the Code had not been passed, and the Court in which the proceeding is pending would be bound to dispose of the proceeding according to the law in force prior to the commencement of the Code. The argument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.15. Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force.16.
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0
### Explanation:
S. 74 of Act 66 of 1950 was supended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed. By S. 2 (b) of Act 29 of 1955 "Ryotwari sub-lessee" was defined as meaning" a person to whom a Pakka tenant of any ryotwari land has sub-let on sub-lease any part of his ryotwari land". By S. 3 a ban was imposed against ejectment of all ryotwari sub-lessees other than sub-lessees under S. 74 of Act 66 of 1950. By S. 4 provision was made for ejectment of ryotwari sub-lessees and provisions similar to Ss. 5 and 6 of Act 32 of 1954 were made in this Act also. A ban was, therefore, imposed against eviction of ryotwari sub-lessees and proceedings for eviction againt them were stayed by Act 29 of 1955. Therefore, ryotwari sub-lessees who had ceased by determination of the sub-leases to have right in the lands were still protected from eviction during the pendency of Act 29 of 1955, and by S. 185 (1) (ii) (b) of the Code upon the ryotwari sub-lessees the rights of occupancy tenants were conferred. If the expression "ryotwari sub-lessee" were to be construed to mean a ryotwari sub-lessee between whom and his lessor there was a subsisting contract of sub-letting, the protection for all purposes would be ineffective, for, by express statutory provision read with S. 74 of Act 66 of 1950 all ryotwari sub-leases stood determined before Act 29 of 1955 was brought into force, and by virtue of S. 185 (3) of the Code a holder of land from a disabled Bhumiswami belonging to a class mentioned in S. 168 (2) of the Code does not qualify for the status of an occupancy tenant. It may be noticed that in the class of disabled persons in sub-s. (2) of S. 162 of the Code are included all persons who are declared disabled by sub-s. (2) of S. 74 of Act 66 of 1950.If ryotwari sub-lessees of disabled persons mentioned in sub-s. (2) of S. 74 of Act 66 of 1950 cannot claim rights of occupancy tenants by virtue of S. 185 (3) of the Code and other ryotwari sub-lessees cannot qualify for those rights because of the determination of their interest as sub-lessees by virtue of Ss. 75 and 76 of Act 66 of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of theargument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force.
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Dr. H.S. Rikhy & Others Vs. New Delhi Municipal Committee | Act. It has not been contended before us that there is anything in the Act which in terms is inconsistent with the provisions of S. 47 of the Municipal Act. But it has been contended that such an inconsistency is implicit in the terms of the Act as they appear from the definitions of landlord, premises and tenant. In our opinion, there is no substance in this contention. We have already pointed out that those definitions postulate the relationship of landlord and tenant which can come into existence only by a transfer of interest in immovable property, in pursuance of a contract. These definitions are entirely silent as to the mode of creating the relationship of landlord and tenant. Therefore, the question is whether the complete silence as to the mode of creating the relationship between landlord and tenant can be construed as making a provision, by implication, inconsistent with the terms of S. 47 of the Municipal Act. In our opinion, the mere absence of such provisions does not create any inconsistency as would attract the application of S. 38 of the Act. It is noteworthy that the provisions of S. 38 of the Act were not relied upon either in the High Court or in the Court of first instance. In those Courts great reliance had been placed on the doctrine of part performance which has now been crystallised in S. 53A of the Transfer of Property Act (IV of 1882) and which in terms cannot apply. Rightly, therefore, no reliance was placed on behalf of the appellants on the provisions of S. 53A of the Transfer of Property Act.11. On the question of the validity of the transfer, it is necessary to consider the further argument raised on behalf of the appellants, namely, that the power of the Committee is contained in S. 18 and not in S. 47 of the Municipal Act, which only lays down the mode of executing contracts and transfer of property, as appears from the marginal note to the section, i.e., the words "Mode of Executing Contract and Transfer of Property". It is true that S. 18 contains the power to enter into a contract and to transfer any property held by the Committee, but S. 47 lays down the essential conditions of the exercise of the power and unless those conditions are fulfilled there could be no contract and no transfer of property. In this connection, it was further argued that sub-s. (3) of S. 47 only says that a contract or transfer of property contemplated in the section executed otherwise than in accordance with the provisions of the section shall not be binding on the Committee. Therefore, the argument further is that the contract may not be binding on the Committee but it is not void. Now, what is the legal significance of the expression "shall not be binding on the Committee"? It simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. It must, therefore, be held that the provisions of S. 47 aforesaid are essential ingredients of the power contained in S. 18 of the Act.12. The same argument was advanced in another form, viz., that the effect of S. 47 of the Municipal Act is not to render the transactions in question between the parties entirely void but it was only declared to be not binding on the Committee. In other words, the argument is that a distinction has to be made between acts which are ultra vires and those for the validity of which certain formalities are necessary and have not been gone through. This distinction assumes an importance where the rights of third parties have come into existence and those parties are not expected to know the true facts as to the fulfillment of those formalities. That it is so becomes clear from the following statement of the law in Halsburys Laws of England (3rd edition, Vol. 15) paragraph 428 at page 227 :"Distinction between ultra vires and irregular acts. A distinction must be made between acts which are ultra vires and those for the validity of which certain formalities are necessary. In the latter case, persons dealing without notice of any informality are entitled to presume omnia rite esse acta. Accordingly a company which, possessing the requisite powers, so conducts itself in issuing debentures as to represent to the public that they are legally transferable, cannot set up any irregularity in their issue against an equitable transferee for value who has no reason to suspect it."13. In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed. The statement of the law in paragraph 427 of the same volume of Halsburys Laws of England to the following effect settles the controversy against the appellants :"Result must not be ultra vires-A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do........"14. In view of these considerations it must be held that there was no relationship of landlord and tenant between the parties and that, therefore, the applications under S. 8 of the Act made by the appellants had been rightly dismissed by the High Court as incompetent. | 0[ds]Though the Act did not prescribe any form of letting the provisions of S. 47 of the Municipal Act applied, and as the provisions of that section are not in direct conflict with any of the provisions of the Act, there was no inconsistency between them. That being so, S. 38 of the Act was out of the way of the Committee. The Committee, being a corporation, has no capacity to contract or to transfer property except in accordance with the provisions of S. 47. Admittedly the provisions of S. 47 have not been complied with. Therefore, the Committee is not bound to recognise the transactions in question as creating an interest in immovable property; there being no interest in immovable property in favour of the appellants, they cannot be called tenants within the meaning of the Act, and as only a tenant can invoke the provisions of S. 8, the applications must be held to be incompetent. There could be no question of estoppel because both parties knew that under the law there had to be a transfer of property by the Committee in accordance with the provisions of S. 47 of the Municipal Act. It is well settled law that there cannot be an estoppel against the provisions of aAct does not stop to consider whether there is a lease, and if so, what are the terms contained in the lease regulating the relationship of landlord and tenant; and that if there is any inconsistency between the provisions of the Act and any other law for the time being in force, the former shall prevail, as laid down in S. 38 of thethis contention is correct, then there cannot be the least doubt that a licensee would also come within the ambit of the Act. But we are not prepared to hold that the Act, by its terms intended to be so comprehensive as to include within its sweep not only tenants properly so called, but also licensees. It is true that the dictionary meaning applies the terms letting to inducting a tenant and delivering possession to him as such, of the premises for a consideration which can be characterised as rent or a licensee who has been permitted to occupy the premises for a consideration which may be called hire. If the argument is correct, then a person hiring a room in a hotel as a licensee would also come within the purview of the Act.But the Act, in terms, has excluded a room in a hotel or a lodging house from the definition ofuse of the word rent is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense; without importing the legal significance aforesaid, of compensation for use and occuption. Rent in the legal sense can only be reserved on a demise of immovablethe use of the term rent cannot preclude the landlord from pleading, that there was no relationship of landlord and tenant.tenant.7. In our opinion, the Act applies only to that species of letting by which the relationship of landlord and tenant is created that is to say, by which an interest in the property, however limited in duration is created.But it has to be noted that it was not contended on behalf of the appellants that the provisions of S. 47(3) of the Municipal Act are not mandatory and are merely directory. Such an argument was not and could not have been advanced because it is settled law that the provisions of a Statute in those peremptory terms could not but be construed asis thus clear that neither of those cases, strongly relied upon by the counsel for the appellant, is an authority for the proposition that where the statute makes it obligatory that there should be a contract under seal, the absence of such a contract could be cured by mere receipt ofis note-worthy that neither of the two cases discussed above was even referred to at the bar or by their Lordships in the course of their judgment, though many cases appear to have been cited at the bar. That was apparently for the reason that these earlier cases, rather ancient, did not turn upon the construction of any statute like the one we are nowhas not been contended before us that there is anything in the Act which in terms is inconsistent with the provisions of S. 47 of the Municipal Act.In our opinion, there is no substance in this contention. We have already pointed out that those definitions postulate the relationship of landlord and tenant which can come into existence only by a transfer of interest in immovable property, in pursuance of a contract. These definitions are entirely silent as to the mode of creating the relationship of landlord and tenant. Therefore, the question is whether the complete silence as to the mode of creating the relationship between landlord and tenant can be construed as making a provision, by implication, inconsistent with the terms of S. 47 of the Municipal Act. In our opinion, the mere absence of such provisions does not create any inconsistency as would attract the application of S. 38 of the Act. It is noteworthy that the provisions of S. 38 of the Act were not relied upon either in the High Court or in the Court of first instance.It is true that S. 18 contains the power to enter into a contract and to transfer any property held by the Committee, but S. 47 lays down the essential conditions of the exercise of the power and unless those conditions are fulfilled there could be no contract and no transfer of property.simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. It must, therefore, be held that the provisions of S. 47 aforesaid are essential ingredients of the power contained in S. 18 of the Act.In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed.In view of these considerations it must be held that there was no relationship of landlord and tenant between the parties and that, therefore, the applications under S. 8 of the Act made by the appellants had been rightly dismissed by the High Court as incompetent. | 0 | 5,776 | 1,216 | ### Instruction:
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Act. It has not been contended before us that there is anything in the Act which in terms is inconsistent with the provisions of S. 47 of the Municipal Act. But it has been contended that such an inconsistency is implicit in the terms of the Act as they appear from the definitions of landlord, premises and tenant. In our opinion, there is no substance in this contention. We have already pointed out that those definitions postulate the relationship of landlord and tenant which can come into existence only by a transfer of interest in immovable property, in pursuance of a contract. These definitions are entirely silent as to the mode of creating the relationship of landlord and tenant. Therefore, the question is whether the complete silence as to the mode of creating the relationship between landlord and tenant can be construed as making a provision, by implication, inconsistent with the terms of S. 47 of the Municipal Act. In our opinion, the mere absence of such provisions does not create any inconsistency as would attract the application of S. 38 of the Act. It is noteworthy that the provisions of S. 38 of the Act were not relied upon either in the High Court or in the Court of first instance. In those Courts great reliance had been placed on the doctrine of part performance which has now been crystallised in S. 53A of the Transfer of Property Act (IV of 1882) and which in terms cannot apply. Rightly, therefore, no reliance was placed on behalf of the appellants on the provisions of S. 53A of the Transfer of Property Act.11. On the question of the validity of the transfer, it is necessary to consider the further argument raised on behalf of the appellants, namely, that the power of the Committee is contained in S. 18 and not in S. 47 of the Municipal Act, which only lays down the mode of executing contracts and transfer of property, as appears from the marginal note to the section, i.e., the words "Mode of Executing Contract and Transfer of Property". It is true that S. 18 contains the power to enter into a contract and to transfer any property held by the Committee, but S. 47 lays down the essential conditions of the exercise of the power and unless those conditions are fulfilled there could be no contract and no transfer of property. In this connection, it was further argued that sub-s. (3) of S. 47 only says that a contract or transfer of property contemplated in the section executed otherwise than in accordance with the provisions of the section shall not be binding on the Committee. Therefore, the argument further is that the contract may not be binding on the Committee but it is not void. Now, what is the legal significance of the expression "shall not be binding on the Committee"? It simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. It must, therefore, be held that the provisions of S. 47 aforesaid are essential ingredients of the power contained in S. 18 of the Act.12. The same argument was advanced in another form, viz., that the effect of S. 47 of the Municipal Act is not to render the transactions in question between the parties entirely void but it was only declared to be not binding on the Committee. In other words, the argument is that a distinction has to be made between acts which are ultra vires and those for the validity of which certain formalities are necessary and have not been gone through. This distinction assumes an importance where the rights of third parties have come into existence and those parties are not expected to know the true facts as to the fulfillment of those formalities. That it is so becomes clear from the following statement of the law in Halsburys Laws of England (3rd edition, Vol. 15) paragraph 428 at page 227 :"Distinction between ultra vires and irregular acts. A distinction must be made between acts which are ultra vires and those for the validity of which certain formalities are necessary. In the latter case, persons dealing without notice of any informality are entitled to presume omnia rite esse acta. Accordingly a company which, possessing the requisite powers, so conducts itself in issuing debentures as to represent to the public that they are legally transferable, cannot set up any irregularity in their issue against an equitable transferee for value who has no reason to suspect it."13. In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed. The statement of the law in paragraph 427 of the same volume of Halsburys Laws of England to the following effect settles the controversy against the appellants :"Result must not be ultra vires-A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do........"14. In view of these considerations it must be held that there was no relationship of landlord and tenant between the parties and that, therefore, the applications under S. 8 of the Act made by the appellants had been rightly dismissed by the High Court as incompetent.
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within the meaning of the Act, and as only a tenant can invoke the provisions of S. 8, the applications must be held to be incompetent. There could be no question of estoppel because both parties knew that under the law there had to be a transfer of property by the Committee in accordance with the provisions of S. 47 of the Municipal Act. It is well settled law that there cannot be an estoppel against the provisions of aAct does not stop to consider whether there is a lease, and if so, what are the terms contained in the lease regulating the relationship of landlord and tenant; and that if there is any inconsistency between the provisions of the Act and any other law for the time being in force, the former shall prevail, as laid down in S. 38 of thethis contention is correct, then there cannot be the least doubt that a licensee would also come within the ambit of the Act. But we are not prepared to hold that the Act, by its terms intended to be so comprehensive as to include within its sweep not only tenants properly so called, but also licensees. It is true that the dictionary meaning applies the terms letting to inducting a tenant and delivering possession to him as such, of the premises for a consideration which can be characterised as rent or a licensee who has been permitted to occupy the premises for a consideration which may be called hire. If the argument is correct, then a person hiring a room in a hotel as a licensee would also come within the purview of the Act.But the Act, in terms, has excluded a room in a hotel or a lodging house from the definition ofuse of the word rent is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense; without importing the legal significance aforesaid, of compensation for use and occuption. Rent in the legal sense can only be reserved on a demise of immovablethe use of the term rent cannot preclude the landlord from pleading, that there was no relationship of landlord and tenant.tenant.7. In our opinion, the Act applies only to that species of letting by which the relationship of landlord and tenant is created that is to say, by which an interest in the property, however limited in duration is created.But it has to be noted that it was not contended on behalf of the appellants that the provisions of S. 47(3) of the Municipal Act are not mandatory and are merely directory. Such an argument was not and could not have been advanced because it is settled law that the provisions of a Statute in those peremptory terms could not but be construed asis thus clear that neither of those cases, strongly relied upon by the counsel for the appellant, is an authority for the proposition that where the statute makes it obligatory that there should be a contract under seal, the absence of such a contract could be cured by mere receipt ofis note-worthy that neither of the two cases discussed above was even referred to at the bar or by their Lordships in the course of their judgment, though many cases appear to have been cited at the bar. That was apparently for the reason that these earlier cases, rather ancient, did not turn upon the construction of any statute like the one we are nowhas not been contended before us that there is anything in the Act which in terms is inconsistent with the provisions of S. 47 of the Municipal Act.In our opinion, there is no substance in this contention. We have already pointed out that those definitions postulate the relationship of landlord and tenant which can come into existence only by a transfer of interest in immovable property, in pursuance of a contract. These definitions are entirely silent as to the mode of creating the relationship of landlord and tenant. Therefore, the question is whether the complete silence as to the mode of creating the relationship between landlord and tenant can be construed as making a provision, by implication, inconsistent with the terms of S. 47 of the Municipal Act. In our opinion, the mere absence of such provisions does not create any inconsistency as would attract the application of S. 38 of the Act. It is noteworthy that the provisions of S. 38 of the Act were not relied upon either in the High Court or in the Court of first instance.It is true that S. 18 contains the power to enter into a contract and to transfer any property held by the Committee, but S. 47 lays down the essential conditions of the exercise of the power and unless those conditions are fulfilled there could be no contract and no transfer of property.simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. It must, therefore, be held that the provisions of S. 47 aforesaid are essential ingredients of the power contained in S. 18 of the Act.In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed.In view of these considerations it must be held that there was no relationship of landlord and tenant between the parties and that, therefore, the applications under S. 8 of the Act made by the appellants had been rightly dismissed by the High Court as incompetent.
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Sohan Singh and Others Vs. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others | UNTWALIA, J.1. This is an appeal by certificate under Article 133(1)(a) of the Constitution as it stood before the Thirtieth Constitution (Amendment) Act from the order of the Madhya Pradesh High Court passed in Miscellaneous Petition No. 280 of 1970 filed by the respondents. The appellants and filed seven applications before the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur under Section 33-C(2) of the Industrial Dispute Act, 1947. The applications were allowed and certain directions were given by the Labour Court for quantification of the claims of the appellants. The High Court in the writ petition filed by the respondents has not examined the merits of the order of the Labour Court. It has set aside that order on the ground that on the facts and circumstances of this case the applications under Section 33-C(2) were not entertainable by the Labour Court. We think that the view taken by the High Court on the facts of this case is not correct because the jurisdiction of the Labour Court was not challenged by the respondent in that Court. Issue No. 4 settled for trial by the Labour Court was in the following terms :Whether the applicants were transferred to Ordnance Factory Khamaria on same terms and conditions of service which they had at Meerut and they willingly accepted the reduced pay and a new-assignment in Khamaria Ordnance ?The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence or the jurisdiction of the Labour Court to try issue No. 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the Labour Court, they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone. | 1[ds]We think that the view taken by the High Court on the facts of this case is not correct because the jurisdiction of the Labour Court was not challenged by the respondent in that Court. Issue No. 4 settled for trial by the Labour Court was in the following terms :Whetherthe applicants were transferred to Ordnance Factory Khamaria on same terms and conditions of service which they had at Meerut and they willingly accepted the reduced pay and an Khamaria OrdnanceHigh Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence or the jurisdiction of the Labour Court to try issue No. 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the Labour Court, they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone. | 1 | 397 | 230 | ### Instruction:
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UNTWALIA, J.1. This is an appeal by certificate under Article 133(1)(a) of the Constitution as it stood before the Thirtieth Constitution (Amendment) Act from the order of the Madhya Pradesh High Court passed in Miscellaneous Petition No. 280 of 1970 filed by the respondents. The appellants and filed seven applications before the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur under Section 33-C(2) of the Industrial Dispute Act, 1947. The applications were allowed and certain directions were given by the Labour Court for quantification of the claims of the appellants. The High Court in the writ petition filed by the respondents has not examined the merits of the order of the Labour Court. It has set aside that order on the ground that on the facts and circumstances of this case the applications under Section 33-C(2) were not entertainable by the Labour Court. We think that the view taken by the High Court on the facts of this case is not correct because the jurisdiction of the Labour Court was not challenged by the respondent in that Court. Issue No. 4 settled for trial by the Labour Court was in the following terms :Whether the applicants were transferred to Ordnance Factory Khamaria on same terms and conditions of service which they had at Meerut and they willingly accepted the reduced pay and a new-assignment in Khamaria Ordnance ?The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence or the jurisdiction of the Labour Court to try issue No. 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the Labour Court, they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone.
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We think that the view taken by the High Court on the facts of this case is not correct because the jurisdiction of the Labour Court was not challenged by the respondent in that Court. Issue No. 4 settled for trial by the Labour Court was in the following terms :Whetherthe applicants were transferred to Ordnance Factory Khamaria on same terms and conditions of service which they had at Meerut and they willingly accepted the reduced pay and an Khamaria OrdnanceHigh Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence or the jurisdiction of the Labour Court to try issue No. 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the Labour Court, they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone.
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Rau Chima Chougule Vs. State of Maharashtra | incident. Even so, there is convincing evidence on the record to show that the appellant was the only person in his one room tenement who had the opportunity to commit the two murders. He has admitted in his statement in the trial Court that while he and his daughter Sunita slept on the left of his one room tenement, his daughter Vijaya and his son-in-law Shivaji slept on the floor along with his daughter Sanjivani (PW 2). He has also admitted that a wick lamp was kept burning in the night and that Sanjivani had latched the door of the room from inside, before sleeping. He has also admitted that it was Sanjivani who removed the latch from inside when she went out at 4 a.m. along with Sunita. Sanjivani (PW 2) no doubt went against the prosecution case during the course of her testimony, and was allowed to be cross-examined. She however admitted that she had latched the door of the room from inside before sleeping, and that she removed the latch of the door when she and Sunita came out weeping. Much to the same effect is the statement of Sunita (PW 6). No evidence has been led in rebuttal so that there can be no doubt that the High Court rightly held that it was the appellant alone who had the opportunity to commit the two murders.9. The statements of Bapu Shinde (PW 7) and Waman Chavan (PW 8) also go to prove that the appellant met and told them soon after that he had killed his daughter and Shivaji with an axe and wanted to surrender at the police station, and that he was told by Bapu Shinde to go to the Juna Rajawada police station. Nothing has been solicited in the cross-examination of these witnesses to shake their testimony. The High Court has taken the view that they are both "witnesses of truth and that they could be safely relied upon" and without any reservation. There is no occasion for us to reassess the evidentiary value of their statements.10. Then there is the further fact that the appellant went to police station Juna Rajawada and surrendered there. This has been established not only by the statement of head constable Gajanan Salokhe (PW 17) but also by that portion of the appellants report (Ex. 36) which is admissible in evidence.11. It will be recalled that head constable Gajanan Salokhe seized blood-stained shirt (article 1), handkerchief (article 2), "banian" (article 3) and half-pant (article 4) from the person of the appellant and also took clippings of his nails (article 5) as they were also suspected to be stained with human blood. As has been stated, the chemical examination showed that while the appellants blood was of "A" group, the blood of his son-in-law Shivaji was of "AB" group and the blood of his daughter Vijaya was of "A" group. The appellants shirt and clippings of his nails were found to be stained with human blood of "AB" group, while his half-pant (article 3) was found to be stained with human blood of "A" group. The High Court was therefore quite justified in reaching the conclusion that it was the appellant who had committed the two murders.12. Then there is the evidence of Dr. Khare (PW 3) that when he examined the dead body of Shivaji he found that the head had been severed from the trunk and only a small tag of skin was bridging the head and trunk posteriorly. He has also stated that the injuries could have been caused by an axe. So also, there is the statement of Dr. Vasant Deshmukh (PW 4) that when she examined the dead body of Vijaya on June 12, 1975, she found two external injuries including a complete trans-section of the spinal cord at thoracic 2 level, and the fracture of ramus of the mandible. The medical evidence therefore also goes to prove the case of the prosecution.13. The appellant tried to suggest in his statement that he went to ease himself at about 4 a.m. and that someone entered his room in his absence and murdered his daughter and son-in-law. He also tried to establish from the statement of his other daughter Vatsala alias Kalpana that Vijaya was a girl of easy virtue. He tried to suggest that his clothes were stained with blood as they were hanging on the wall, on a nail. The High Court has considered the defence and has given adequate reasons for rejecting it.14. It would thus appear that there is no reason for us to interfere with the finding of the High Court and the conviction of the appellant for the offences under Section 302, IPC is fully justified.15. We have considered the question of sentence also. Here again the High Court has rightly taken into consideration the special reasons for confirming the sentence of death. The appellant lured his son-in-law Shivaji and his daughter Vijaya into the belief that they were happy and secure under his roof. They were living with him and Shivaji was giving even his daily earnings to him. The appellants daughter Sanjivani (PW 2) latched the door of the room inside, and Vijaya and Sanjivani therefore went to bed with a sense of security and protection under the appellants roof. The appellant, however, had decided to murder them. He killed them with an axe, and the intensity of the blows on vital parts of their bodies leaves no room for doubt that he had selected those parts for the attack. The murders were therefore not only preplanned and cold-blooded, but were acts of treachery of the "worst kind" as stated by the High Court. The appellant was not an immature person as he was 60 years old at the time of the commission of the murders, and we are unable to think that the High Court erred in taking the view that there were special which it has recorded, for imposing the extreme penalty of death. | 0[ds]We have gone through the statements of Dhondiram (PW 9), Sanjivani (PW 2), head constable Ananda Salokhe (PW 21) of Radhanagari police station, the appellants complaint (Ex. 19) dated May 10, 1975 and his statement in the trial Court, and it appears that the finding of the High Court in this respect is quite justified. It is true that Shivaji was paying his daily earning to the appellant and was living with him along with his wife Vijaya, but he subsequent conduct of the appellant leaves no room for doubt that he was not reconciled to that state of affairs and was smarting under the humiliation caused by the conduct of the deceased.8. The High Court has left out of consideration the evidence regarding the sharpening of the axe by Dadoba Sutar (PW 14) and the statement of Maruti Patil (PW 16) that he went and asked Shivaji to return to the house early, for his meal, on the day of the incident. Even so, there is convincing evidence on the record to show that the appellant was the only person in his one room tenement who had the opportunity to commit the two murders. He has admitted in his statement in the trial Court that while he and his daughter Sunita slept on the left of his one room tenement, his daughter Vijaya and hisShivaji slept on the floor along with his daughter Sanjivani (PW 2). He has also admitted that a wick lamp was kept burning in the night and that Sanjivani had latched the door of the room from inside, before sleeping. He has also admitted that it was Sanjivani who removed the latch from inside when she went out at 4 a.m. along with Sunita. Sanjivani (PW 2) no doubt went against the prosecution case during the course of her testimony, and was allowed to beShe however admitted that she had latched the door of the room from inside before sleeping, and that she removed the latch of the door when she and Sunita came out weeping. Much to the same effect is the statement of Sunita (PW 6). No evidence has been led in rebuttal so that there can be no doubt that the High Court rightly held that it was the appellant alone who had the opportunity to commit the two murders.9. The statements of Bapu Shinde (PW 7) and Waman Chavan (PW 8) also go to prove that the appellant met and told them soon after that he had killed his daughter and Shivaji with an axe and wanted to surrender at the police station, and that he was told by Bapu Shinde to go to the Juna Rajawada police station. Nothing has been solicited in theof these witnesses to shake their testimony. The High Court has taken the view that they are both "witnesses of truth and that they could be safely relied upon" and without any reservation. There is no occasion for us to reassess the evidentiary value of their statements.10. Then there is the further fact that the appellant went to police station Juna Rajawada and surrendered there. This has been established not only by the statement of head constable Gajanan Salokhe (PW 17) but also by that portion of the appellants report (Ex. 36) which is admissible in evidence.11. It will be recalled that head constable Gajanan Salokhe seizedshirt (article 1), handkerchief (article 2), "banian" (article 3) and(article 4) from the person of the appellant and also took clippings of his nails (article 5) as they were also suspected to be stained with human blood. As has been stated, the chemical examination showed that while the appellants blood was of "A" group, the blood of hisShivaji was of "AB" group and the blood of his daughter Vijaya was of "A" group. The appellants shirt and clippings of his nails were found to be stained with human blood of "AB" group, while his(article 3) was found to be stained with human blood of "A" group. The High Court was therefore quite justified in reaching the conclusion that it was the appellant who had committed the two murders.It would thus appear that there is no reason for us to interfere with the finding of the High Court and the conviction of the appellant for the offences under Section 302, IPC is fully justified.15. We have considered the question of sentence also. Here again the High Court has rightly taken into consideration the special reasons for confirming the sentence of death. The appellant lured hisShivaji and his daughter Vijaya into the belief that they were happy and secure under his roof. They were living with him and Shivaji was giving even his daily earnings to him. The appellants daughter Sanjivani (PW 2) latched the door of the room inside, and Vijaya and Sanjivani therefore went to bed with a sense of security and protection under the appellants roof. The appellant, however, had decided to murder them. He killed them with an axe, and the intensity of the blows on vital parts of their bodies leaves no room for doubt that he had selected those parts for the attack. The murders were therefore not only preplanned andbut were acts of treachery of the "worst kind" as stated by the High Court. The appellant was not an immature person as he was 60 years old at the time of the commission of the murders, and we are unable to think that the High Court erred in taking the view that there were special which it has recorded, for imposing the extreme penalty of death. | 0 | 3,180 | 1,049 | ### 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:
incident. Even so, there is convincing evidence on the record to show that the appellant was the only person in his one room tenement who had the opportunity to commit the two murders. He has admitted in his statement in the trial Court that while he and his daughter Sunita slept on the left of his one room tenement, his daughter Vijaya and his son-in-law Shivaji slept on the floor along with his daughter Sanjivani (PW 2). He has also admitted that a wick lamp was kept burning in the night and that Sanjivani had latched the door of the room from inside, before sleeping. He has also admitted that it was Sanjivani who removed the latch from inside when she went out at 4 a.m. along with Sunita. Sanjivani (PW 2) no doubt went against the prosecution case during the course of her testimony, and was allowed to be cross-examined. She however admitted that she had latched the door of the room from inside before sleeping, and that she removed the latch of the door when she and Sunita came out weeping. Much to the same effect is the statement of Sunita (PW 6). No evidence has been led in rebuttal so that there can be no doubt that the High Court rightly held that it was the appellant alone who had the opportunity to commit the two murders.9. The statements of Bapu Shinde (PW 7) and Waman Chavan (PW 8) also go to prove that the appellant met and told them soon after that he had killed his daughter and Shivaji with an axe and wanted to surrender at the police station, and that he was told by Bapu Shinde to go to the Juna Rajawada police station. Nothing has been solicited in the cross-examination of these witnesses to shake their testimony. The High Court has taken the view that they are both "witnesses of truth and that they could be safely relied upon" and without any reservation. There is no occasion for us to reassess the evidentiary value of their statements.10. Then there is the further fact that the appellant went to police station Juna Rajawada and surrendered there. This has been established not only by the statement of head constable Gajanan Salokhe (PW 17) but also by that portion of the appellants report (Ex. 36) which is admissible in evidence.11. It will be recalled that head constable Gajanan Salokhe seized blood-stained shirt (article 1), handkerchief (article 2), "banian" (article 3) and half-pant (article 4) from the person of the appellant and also took clippings of his nails (article 5) as they were also suspected to be stained with human blood. As has been stated, the chemical examination showed that while the appellants blood was of "A" group, the blood of his son-in-law Shivaji was of "AB" group and the blood of his daughter Vijaya was of "A" group. The appellants shirt and clippings of his nails were found to be stained with human blood of "AB" group, while his half-pant (article 3) was found to be stained with human blood of "A" group. The High Court was therefore quite justified in reaching the conclusion that it was the appellant who had committed the two murders.12. Then there is the evidence of Dr. Khare (PW 3) that when he examined the dead body of Shivaji he found that the head had been severed from the trunk and only a small tag of skin was bridging the head and trunk posteriorly. He has also stated that the injuries could have been caused by an axe. So also, there is the statement of Dr. Vasant Deshmukh (PW 4) that when she examined the dead body of Vijaya on June 12, 1975, she found two external injuries including a complete trans-section of the spinal cord at thoracic 2 level, and the fracture of ramus of the mandible. The medical evidence therefore also goes to prove the case of the prosecution.13. The appellant tried to suggest in his statement that he went to ease himself at about 4 a.m. and that someone entered his room in his absence and murdered his daughter and son-in-law. He also tried to establish from the statement of his other daughter Vatsala alias Kalpana that Vijaya was a girl of easy virtue. He tried to suggest that his clothes were stained with blood as they were hanging on the wall, on a nail. The High Court has considered the defence and has given adequate reasons for rejecting it.14. It would thus appear that there is no reason for us to interfere with the finding of the High Court and the conviction of the appellant for the offences under Section 302, IPC is fully justified.15. We have considered the question of sentence also. Here again the High Court has rightly taken into consideration the special reasons for confirming the sentence of death. The appellant lured his son-in-law Shivaji and his daughter Vijaya into the belief that they were happy and secure under his roof. They were living with him and Shivaji was giving even his daily earnings to him. The appellants daughter Sanjivani (PW 2) latched the door of the room inside, and Vijaya and Sanjivani therefore went to bed with a sense of security and protection under the appellants roof. The appellant, however, had decided to murder them. He killed them with an axe, and the intensity of the blows on vital parts of their bodies leaves no room for doubt that he had selected those parts for the attack. The murders were therefore not only preplanned and cold-blooded, but were acts of treachery of the "worst kind" as stated by the High Court. The appellant was not an immature person as he was 60 years old at the time of the commission of the murders, and we are unable to think that the High Court erred in taking the view that there were special which it has recorded, for imposing the extreme penalty of death.
### Response:
0
### Explanation:
We have gone through the statements of Dhondiram (PW 9), Sanjivani (PW 2), head constable Ananda Salokhe (PW 21) of Radhanagari police station, the appellants complaint (Ex. 19) dated May 10, 1975 and his statement in the trial Court, and it appears that the finding of the High Court in this respect is quite justified. It is true that Shivaji was paying his daily earning to the appellant and was living with him along with his wife Vijaya, but he subsequent conduct of the appellant leaves no room for doubt that he was not reconciled to that state of affairs and was smarting under the humiliation caused by the conduct of the deceased.8. The High Court has left out of consideration the evidence regarding the sharpening of the axe by Dadoba Sutar (PW 14) and the statement of Maruti Patil (PW 16) that he went and asked Shivaji to return to the house early, for his meal, on the day of the incident. Even so, there is convincing evidence on the record to show that the appellant was the only person in his one room tenement who had the opportunity to commit the two murders. He has admitted in his statement in the trial Court that while he and his daughter Sunita slept on the left of his one room tenement, his daughter Vijaya and hisShivaji slept on the floor along with his daughter Sanjivani (PW 2). He has also admitted that a wick lamp was kept burning in the night and that Sanjivani had latched the door of the room from inside, before sleeping. He has also admitted that it was Sanjivani who removed the latch from inside when she went out at 4 a.m. along with Sunita. Sanjivani (PW 2) no doubt went against the prosecution case during the course of her testimony, and was allowed to beShe however admitted that she had latched the door of the room from inside before sleeping, and that she removed the latch of the door when she and Sunita came out weeping. Much to the same effect is the statement of Sunita (PW 6). No evidence has been led in rebuttal so that there can be no doubt that the High Court rightly held that it was the appellant alone who had the opportunity to commit the two murders.9. The statements of Bapu Shinde (PW 7) and Waman Chavan (PW 8) also go to prove that the appellant met and told them soon after that he had killed his daughter and Shivaji with an axe and wanted to surrender at the police station, and that he was told by Bapu Shinde to go to the Juna Rajawada police station. Nothing has been solicited in theof these witnesses to shake their testimony. The High Court has taken the view that they are both "witnesses of truth and that they could be safely relied upon" and without any reservation. There is no occasion for us to reassess the evidentiary value of their statements.10. Then there is the further fact that the appellant went to police station Juna Rajawada and surrendered there. This has been established not only by the statement of head constable Gajanan Salokhe (PW 17) but also by that portion of the appellants report (Ex. 36) which is admissible in evidence.11. It will be recalled that head constable Gajanan Salokhe seizedshirt (article 1), handkerchief (article 2), "banian" (article 3) and(article 4) from the person of the appellant and also took clippings of his nails (article 5) as they were also suspected to be stained with human blood. As has been stated, the chemical examination showed that while the appellants blood was of "A" group, the blood of hisShivaji was of "AB" group and the blood of his daughter Vijaya was of "A" group. The appellants shirt and clippings of his nails were found to be stained with human blood of "AB" group, while his(article 3) was found to be stained with human blood of "A" group. The High Court was therefore quite justified in reaching the conclusion that it was the appellant who had committed the two murders.It would thus appear that there is no reason for us to interfere with the finding of the High Court and the conviction of the appellant for the offences under Section 302, IPC is fully justified.15. We have considered the question of sentence also. Here again the High Court has rightly taken into consideration the special reasons for confirming the sentence of death. The appellant lured hisShivaji and his daughter Vijaya into the belief that they were happy and secure under his roof. They were living with him and Shivaji was giving even his daily earnings to him. The appellants daughter Sanjivani (PW 2) latched the door of the room inside, and Vijaya and Sanjivani therefore went to bed with a sense of security and protection under the appellants roof. The appellant, however, had decided to murder them. He killed them with an axe, and the intensity of the blows on vital parts of their bodies leaves no room for doubt that he had selected those parts for the attack. The murders were therefore not only preplanned andbut were acts of treachery of the "worst kind" as stated by the High Court. The appellant was not an immature person as he was 60 years old at the time of the commission of the murders, and we are unable to think that the High Court erred in taking the view that there were special which it has recorded, for imposing the extreme penalty of death.
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APSRTC REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR MUSHIRABAD & ORS Vs. A.U.M.RAO & ORS | the Division Bench in a Writ Appeal. 8. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases. 9. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29 February 2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case:?(1) In cases where the appellate/revisional authority has directed re-engagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of re-engagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only the purpose of regularization at a future date.(2) The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization.(3) There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the beneifit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of these employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.(4) In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for reengagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continutiy of past service as under para-(1) above.(5) In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012.(6) In cases where no enquiry was conducted, the respondent-Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct.? 10. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement. 11. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.12. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.13. We may also note that the earlier order of the learned Single Judge dated 29 February 2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.14. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1[ds]In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases9. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29 February 2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted10. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement11. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service12. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived13. We may also note that the earlier order of the learned Single Judge dated 29 February 2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct14. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1 | 1,566 | 635 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the Division Bench in a Writ Appeal. 8. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases. 9. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29 February 2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case:?(1) In cases where the appellate/revisional authority has directed re-engagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of re-engagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only the purpose of regularization at a future date.(2) The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization.(3) There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the beneifit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of these employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.(4) In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for reengagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continutiy of past service as under para-(1) above.(5) In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012.(6) In cases where no enquiry was conducted, the respondent-Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct.? 10. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement. 11. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.12. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.13. We may also note that the earlier order of the learned Single Judge dated 29 February 2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.14. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
### Response:
1
### Explanation:
In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases9. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29 February 2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted10. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement11. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service12. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived13. We may also note that the earlier order of the learned Single Judge dated 29 February 2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct14. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
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Gaurav Aseem Avtej Vs. U.P. State Sugar Corporation Ltd. and Ors | both ownership as well as possession. And in the context of the definition it is not possible to interpret the term held only in the sense of possession.The word "holds" was again interpreted in Hari Ram v. Babu Gokul Prasad [1991 Supp (2) SCC 608] where it occurs in Section 185(1) of the Madhya Pradesh Land Revenue Code, 1959. It was observed: (SCC p. 611, para 5)The word holds is not a word of Article It has not been defined in the Act. It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title.12. Blacks Law Dictionary defines Hold as under:To possess in virtue of a lawful title; as in the expression, common in grants, "to have and to hold," or in that applied to notes, "the owner and holder."In the context of the 1971 Act, the word "held" connotes a wide meaning. All lands held or occupied lawfully and which were used for the purposes of the factory stood vested in the Government on the appointed day. The word held in Section 2(h)(vi) cannot be interpreted as limited only to a holding as an owner of the property. Legal possession is sufficient for the lands to vest in the Government by forming part of the scheduled undertaking.13. Blacks Law Dictionary defines occupy as under:To take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in; to take or hold possession. Actual use, possession, and cultivation. See occupancy; occupant; occupation; possession.The words held or occupied carry the same meaning and there is no manner of doubt that if the land is in the lawful possession of the factory and was being used for the purposes of the factory, the said land vested in the Government as per Section 3 of the 1971 Act. Section 3 of the 1971 Act provides for the vesting of the scheduled undertaking free from all encumbrances. There is no dispute that, in the instant case, the land was held and occupied by the sugar factory for a long period of time pursuant to a lease deed executed by the Plaintiffs and was being used for the purpose of the factory.14. The point that remains to be considered is about the reason for the insertion of the words "including any leasehold interest therein". The submission of the Appellant which found favour with the Trial Court and the First Appellate Court is that the vesting under the 1971 Act is only of the leasehold interest in the land. We disagree. We are of the opinion that all lands including those which are held pursuant to a lease vest in the State. It is only ex abundant cautela that these words are included in the definition clause. The intention of the legislature is made very clear in the definition of scheduled undertaking by insertion of the words "including any leasehold interest." The words including any leasehold interest cannot be read in the manner that is canvassed by the Appellant which is that vesting is only of leasehold interest. A plain reading of Section 2(h) (vi) of the 1971 Act provides that a scheduled undertaking would comprise of all lands and buildings held or occupied for the purpose of the factory. The word including would clearly indicate that the lands held by way of lease are also part of a scheduled undertaking. In any case the words "including any leasehold interest therein" cannot be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land.15. If the intention of the Legislature was to exclude leasehold lands it could have expressed the same by adding lands held on lease along with agricultural and grove lands. As per Section 2(h)(vi) all lands other than lands held or occupied for purpose of cultivation and grove lands are part of scheduled undertaking. In view of above, we are of the opinion that the land in dispute stood vested in the State Government on the appointed day i.e. 03.07.1971.16. The findings recorded above would have been sufficient to dispose of the controversy in this case. But it has become necessary for us to deal with the findings of the High Court that the Plaintiffs are not entitled for any compensation for their lands. The reason given by the High Court is that the lease executed by the Plaintiffs was contrary to Section 156 of the 1950 Act. And, the consequence of the violation of Section 156 is that the transaction is void and the Plaintiffs lost all rights in the property as per Section 167 of the Act.17. Undisputedly, the lease of the land was entered into between the parties prior to the 1950 Act coming into force. The Act of 1950 is not applicable to the land which was being used for non agricultural purposes prior to 1950. Land as defined in Section 3 (14) of the 1950 Act means land, held or occupied for purposes connected with agriculture, horticulture or animal husbandry. Moreover, there is also a declaration Under Section 143 of the 1950 Act that the land was being used for non agricultural purposes. The said order Under Section 143 passed by the SDO, Bijnor on 20.01.1972 was on the basis of a report submitted by the Tehsildar made on 17.12.1970. In view of the above, we are of the opinion that the land did not vest in the Government under the 1950 Act.18. We are not in agreement with the findings of the High Court regarding the vesting of the land in the Government under the 1950 Act due to which the Plaintiffs were held disentitled for any compensation. The land owners may resort to any remedy available to them for payment of compensation to which they are entitled to. | 0[ds]It is relevant to mention at the outset that the pleadings in this case are not very clear. After a detailed scrutiny of the material on record, we refer to the undisputed facts which are as follows:i. The land in dispute admittedly belongs to the Plaintiffs. They leased out the said land to M/s. Shiv Prasad Banarasi Das Sugar Mills, Bijnor prior to 1950ii. The land was being used for the purpose of parking of vehicles which brought sugarcane to the factoryiii. The 1950 Act came into force on 26 January, 1951iv. The S.D.O., Bijnor by an order dated 20.01.1972 declared the land as non agricultural land Under Section 143 of the 1950 Act. The said order was passed on the basis of a report submitted by the Tehsildar on 17.12.1970v. The Plaintiffs were unsuccessful in their challenge to the 1971 Act. Though the Act was passed in 1971, the possession of the scheduled undertaking was handed over only in the year 1979 to the Governmentvi. A notice of termination of the lease was issued on 10.12.1979. The suit filed by the Plaintiffs was partly decreed by the trial Court on 14.04.1982 and fully decreed by the First Appellate Court on 01.08.1984vii. During the pendency of the second appeal in the High Court, the Plaintiffs executed a sale deed in favour of the present Appellant on 29.11.2004. Notice was issued in the SLP on 20.07.2007 and leave was granted by this Court on 05.10.20098. The point of vesting of the lands under the 1971 Act was adjudicated by all the three Courts below. We are of the opinion that determination of this issue will set at rest the controversy in this case. The Trial Court and the First Appellate Court held that the land did not vest in the Government under the 1971 Act and it was only the leasehold interest in the land that vested in the Government. Whereas, the High Court held that the land vested in the Government. We areunable to agree. A detailed examination of the provisions of the Act would make it clear that the intention was to secure all assets which were being used for the purposes of the factoryThere is no dispute that, in the instant case, the land was held and occupied by the sugar factory for a long period of time pursuant to a lease deed executed by the Plaintiffs and was being used for the purpose of the factory. We areof the opinion that all lands including those which are held pursuant to a lease vest in the State. It is only ex abundant cautela that these words are included in the definition clause. The intention of the legislature is made very clear in the definition of scheduled undertaking by insertion of the words "including any leasehold interest." The words including any leasehold interest cannot be read in the manner that is canvassed by the Appellant which is that vesting is only of leasehold interest. A plain reading of Section 2(h) (vi) of the 1971 Act provides that a scheduled undertaking would comprise of all lands and buildings held or occupied for the purpose of the factory. The word including would clearly indicate that the lands held by way of lease are also part of a scheduled undertaking. In any case the words "including any leasehold interest therein" cannot be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land15. If the intention of the Legislature was to exclude leasehold lands it could have expressed the same by adding lands held on lease along with agricultural and grove lands. As per Section 2(h)(vi) all lands other than lands held or occupied for purpose of cultivation and grove lands are part of scheduled undertaking. In view of above, we are of the opinion that the land in dispute stood vested in the State Government on the appointed day i.e. 03.07.197116. The findings recorded above would have been sufficient to dispose of the controversy in this case. But it has become necessary for us to deal with the findings of the High Court that the Plaintiffs are not entitled for any compensation for their lands. The reason given by the High Court is that the lease executed by the Plaintiffs was contrary to Section 156 of the 1950 Act. And, the consequence of the violation of Section 156 is that the transaction is void and the Plaintiffs lost all rights in the property as per Section 167 of the Act17. Undisputedly, the lease of the land was entered into between the parties prior to the 1950 Act coming into force. The Act of 1950 is not applicable to the land which was being used for non agricultural purposes prior to 1950. Land as defined in Section 3 (14) of the 1950 Act means land, held or occupied for purposes connected with agriculture, horticulture or animal husbandry. Moreover, there is also a declaration Under Section 143 of the 1950 Act that the land was being used for non agricultural purposes. The said order Under Section 143 passed by the SDO, Bijnor on 20.01.1972 was on the basis of a report submitted by the Tehsildar made on 17.12.1970. In view of the above, we are of the opinion that the land did not vest in the Government under the 1950 ActWe arenot in agreement with the findings of the High Court regarding the vesting of the land in the Government under the 1950 Act due to which the Plaintiffs were held disentitled for any compensation. The land owners may resort to any remedy available to them for payment of compensation to which they are entitled to. | 0 | 3,683 | 1,036 | ### 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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both ownership as well as possession. And in the context of the definition it is not possible to interpret the term held only in the sense of possession.The word "holds" was again interpreted in Hari Ram v. Babu Gokul Prasad [1991 Supp (2) SCC 608] where it occurs in Section 185(1) of the Madhya Pradesh Land Revenue Code, 1959. It was observed: (SCC p. 611, para 5)The word holds is not a word of Article It has not been defined in the Act. It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title.12. Blacks Law Dictionary defines Hold as under:To possess in virtue of a lawful title; as in the expression, common in grants, "to have and to hold," or in that applied to notes, "the owner and holder."In the context of the 1971 Act, the word "held" connotes a wide meaning. All lands held or occupied lawfully and which were used for the purposes of the factory stood vested in the Government on the appointed day. The word held in Section 2(h)(vi) cannot be interpreted as limited only to a holding as an owner of the property. Legal possession is sufficient for the lands to vest in the Government by forming part of the scheduled undertaking.13. Blacks Law Dictionary defines occupy as under:To take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in; to take or hold possession. Actual use, possession, and cultivation. See occupancy; occupant; occupation; possession.The words held or occupied carry the same meaning and there is no manner of doubt that if the land is in the lawful possession of the factory and was being used for the purposes of the factory, the said land vested in the Government as per Section 3 of the 1971 Act. Section 3 of the 1971 Act provides for the vesting of the scheduled undertaking free from all encumbrances. There is no dispute that, in the instant case, the land was held and occupied by the sugar factory for a long period of time pursuant to a lease deed executed by the Plaintiffs and was being used for the purpose of the factory.14. The point that remains to be considered is about the reason for the insertion of the words "including any leasehold interest therein". The submission of the Appellant which found favour with the Trial Court and the First Appellate Court is that the vesting under the 1971 Act is only of the leasehold interest in the land. We disagree. We are of the opinion that all lands including those which are held pursuant to a lease vest in the State. It is only ex abundant cautela that these words are included in the definition clause. The intention of the legislature is made very clear in the definition of scheduled undertaking by insertion of the words "including any leasehold interest." The words including any leasehold interest cannot be read in the manner that is canvassed by the Appellant which is that vesting is only of leasehold interest. A plain reading of Section 2(h) (vi) of the 1971 Act provides that a scheduled undertaking would comprise of all lands and buildings held or occupied for the purpose of the factory. The word including would clearly indicate that the lands held by way of lease are also part of a scheduled undertaking. In any case the words "including any leasehold interest therein" cannot be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land.15. If the intention of the Legislature was to exclude leasehold lands it could have expressed the same by adding lands held on lease along with agricultural and grove lands. As per Section 2(h)(vi) all lands other than lands held or occupied for purpose of cultivation and grove lands are part of scheduled undertaking. In view of above, we are of the opinion that the land in dispute stood vested in the State Government on the appointed day i.e. 03.07.1971.16. The findings recorded above would have been sufficient to dispose of the controversy in this case. But it has become necessary for us to deal with the findings of the High Court that the Plaintiffs are not entitled for any compensation for their lands. The reason given by the High Court is that the lease executed by the Plaintiffs was contrary to Section 156 of the 1950 Act. And, the consequence of the violation of Section 156 is that the transaction is void and the Plaintiffs lost all rights in the property as per Section 167 of the Act.17. Undisputedly, the lease of the land was entered into between the parties prior to the 1950 Act coming into force. The Act of 1950 is not applicable to the land which was being used for non agricultural purposes prior to 1950. Land as defined in Section 3 (14) of the 1950 Act means land, held or occupied for purposes connected with agriculture, horticulture or animal husbandry. Moreover, there is also a declaration Under Section 143 of the 1950 Act that the land was being used for non agricultural purposes. The said order Under Section 143 passed by the SDO, Bijnor on 20.01.1972 was on the basis of a report submitted by the Tehsildar made on 17.12.1970. In view of the above, we are of the opinion that the land did not vest in the Government under the 1950 Act.18. We are not in agreement with the findings of the High Court regarding the vesting of the land in the Government under the 1950 Act due to which the Plaintiffs were held disentitled for any compensation. The land owners may resort to any remedy available to them for payment of compensation to which they are entitled to.
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It is relevant to mention at the outset that the pleadings in this case are not very clear. After a detailed scrutiny of the material on record, we refer to the undisputed facts which are as follows:i. The land in dispute admittedly belongs to the Plaintiffs. They leased out the said land to M/s. Shiv Prasad Banarasi Das Sugar Mills, Bijnor prior to 1950ii. The land was being used for the purpose of parking of vehicles which brought sugarcane to the factoryiii. The 1950 Act came into force on 26 January, 1951iv. The S.D.O., Bijnor by an order dated 20.01.1972 declared the land as non agricultural land Under Section 143 of the 1950 Act. The said order was passed on the basis of a report submitted by the Tehsildar on 17.12.1970v. The Plaintiffs were unsuccessful in their challenge to the 1971 Act. Though the Act was passed in 1971, the possession of the scheduled undertaking was handed over only in the year 1979 to the Governmentvi. A notice of termination of the lease was issued on 10.12.1979. The suit filed by the Plaintiffs was partly decreed by the trial Court on 14.04.1982 and fully decreed by the First Appellate Court on 01.08.1984vii. During the pendency of the second appeal in the High Court, the Plaintiffs executed a sale deed in favour of the present Appellant on 29.11.2004. Notice was issued in the SLP on 20.07.2007 and leave was granted by this Court on 05.10.20098. The point of vesting of the lands under the 1971 Act was adjudicated by all the three Courts below. We are of the opinion that determination of this issue will set at rest the controversy in this case. The Trial Court and the First Appellate Court held that the land did not vest in the Government under the 1971 Act and it was only the leasehold interest in the land that vested in the Government. Whereas, the High Court held that the land vested in the Government. We areunable to agree. A detailed examination of the provisions of the Act would make it clear that the intention was to secure all assets which were being used for the purposes of the factoryThere is no dispute that, in the instant case, the land was held and occupied by the sugar factory for a long period of time pursuant to a lease deed executed by the Plaintiffs and was being used for the purpose of the factory. We areof the opinion that all lands including those which are held pursuant to a lease vest in the State. It is only ex abundant cautela that these words are included in the definition clause. The intention of the legislature is made very clear in the definition of scheduled undertaking by insertion of the words "including any leasehold interest." The words including any leasehold interest cannot be read in the manner that is canvassed by the Appellant which is that vesting is only of leasehold interest. A plain reading of Section 2(h) (vi) of the 1971 Act provides that a scheduled undertaking would comprise of all lands and buildings held or occupied for the purpose of the factory. The word including would clearly indicate that the lands held by way of lease are also part of a scheduled undertaking. In any case the words "including any leasehold interest therein" cannot be understood to have a limiting effect and result in the acquisition of only the leasehold interest in the land15. If the intention of the Legislature was to exclude leasehold lands it could have expressed the same by adding lands held on lease along with agricultural and grove lands. As per Section 2(h)(vi) all lands other than lands held or occupied for purpose of cultivation and grove lands are part of scheduled undertaking. In view of above, we are of the opinion that the land in dispute stood vested in the State Government on the appointed day i.e. 03.07.197116. The findings recorded above would have been sufficient to dispose of the controversy in this case. But it has become necessary for us to deal with the findings of the High Court that the Plaintiffs are not entitled for any compensation for their lands. The reason given by the High Court is that the lease executed by the Plaintiffs was contrary to Section 156 of the 1950 Act. And, the consequence of the violation of Section 156 is that the transaction is void and the Plaintiffs lost all rights in the property as per Section 167 of the Act17. Undisputedly, the lease of the land was entered into between the parties prior to the 1950 Act coming into force. The Act of 1950 is not applicable to the land which was being used for non agricultural purposes prior to 1950. Land as defined in Section 3 (14) of the 1950 Act means land, held or occupied for purposes connected with agriculture, horticulture or animal husbandry. Moreover, there is also a declaration Under Section 143 of the 1950 Act that the land was being used for non agricultural purposes. The said order Under Section 143 passed by the SDO, Bijnor on 20.01.1972 was on the basis of a report submitted by the Tehsildar made on 17.12.1970. In view of the above, we are of the opinion that the land did not vest in the Government under the 1950 ActWe arenot in agreement with the findings of the High Court regarding the vesting of the land in the Government under the 1950 Act due to which the Plaintiffs were held disentitled for any compensation. The land owners may resort to any remedy available to them for payment of compensation to which they are entitled to.
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India Financial Assn.,Seventh Day Adven Vs. M.A. Unneerikutty | statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B. ([1885] 16 QBD 446: 55 LJQB 143 : 2 TLR 360). A contract is void if prohibited by a statute, under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or so that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank ([1957] 1 QB 267)) (See also Halsburys Laws of England, Third Edition, Vol. 8, p. 141.) It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action. 15. In a recent case in Aniglase Yohannan v. Ramlatha and Others. [(2005) 7 SCC 534] it was noted as follows: In order to appreciate the rival submissions Section 16(c) needs to be quoted along with the Explanations. The same reads as follows: 16. Personal bars to relief: (a) .................... (b) .................... (c) 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 terms of the performance of which has been prevented or waived by the defendant. Explanation - For the purpose of clause (c) - (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract accordingly to its true construction. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 16. Section 23 of the Contract Act lays down that the object of an agreement becomes unlawful if it was of such a nature that, if permitted, it would defeat the provisions of any law. 17. The term public policy has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent. 18. The following passage from Maxwell Interpretation of Statutes, may also be quoted to advantage here:- Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Where there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy........ 19. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as untrustworthy guide. variable quality, uncertain one, unruly house, etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but it certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public. 20. Section 24 provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void. 21. | 0[ds]17. The term public policy has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent19. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as untrustworthy guide. variable quality, uncertain one, unruly house, etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but it certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public. | 0 | 6,245 | 272 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B. ([1885] 16 QBD 446: 55 LJQB 143 : 2 TLR 360). A contract is void if prohibited by a statute, under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or so that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank ([1957] 1 QB 267)) (See also Halsburys Laws of England, Third Edition, Vol. 8, p. 141.) It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action. 15. In a recent case in Aniglase Yohannan v. Ramlatha and Others. [(2005) 7 SCC 534] it was noted as follows: In order to appreciate the rival submissions Section 16(c) needs to be quoted along with the Explanations. The same reads as follows: 16. Personal bars to relief: (a) .................... (b) .................... (c) 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 terms of the performance of which has been prevented or waived by the defendant. Explanation - For the purpose of clause (c) - (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract accordingly to its true construction. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 16. Section 23 of the Contract Act lays down that the object of an agreement becomes unlawful if it was of such a nature that, if permitted, it would defeat the provisions of any law. 17. The term public policy has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent. 18. The following passage from Maxwell Interpretation of Statutes, may also be quoted to advantage here:- Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Where there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy........ 19. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as untrustworthy guide. variable quality, uncertain one, unruly house, etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but it certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public. 20. Section 24 provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void. 21.
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### Explanation:
17. The term public policy has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent19. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as untrustworthy guide. variable quality, uncertain one, unruly house, etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but it certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public.
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Kesharichand Jaisukhal Vs. The Shillong Banking Corporation | when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the bankers is money known by the principal to be placed there for the purpose of being under the control of the banker; it is then the bankers money; he is known to deal with it as his own; he makes himself, by paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places. That being established to be the relative situations of banker and customer, the banker is not an agent or factor, but he is a debtor." What would be the position if instead of paying in cash the customer hands in cheques or bills? With regard to this Sheldon has laid as follows:"In Joachimson v. Swiss Bank Corporation, (1921-3 KB l10), Lord Justice Atkin gave an admirable summary of the position. He stated that the banker undertakes to receive money and collect bills for his customers account, and that money so received is not held in trust for the customer but borrowed from him with a promise to repay it or any part of it..... against the customers written order addressed to the bank at such branch", (pp. 201-202). In the appeal before us the two cheques for Rs. 600 and Rs. 8,200 have not been placed on record and so we do not know in whose favour they were drawn and if they were drawn by the appellant in favour of "self" what endorsement he had made on the back of the cheques. The cheques could have been drawn by the appellant either in his own favour or in favour of the bank. Whichever be the position the fact remains that these two cheques were credited by him in his account with the respondent. That is not all. Since the appellant had a mutual open and current account with the respondent it may well be that money was owing by him to the respondent on that date and, therefore, he drew these two cheques on the Bharati Central Bank and credited them in his account with the respondent. Or it may be that the appellant merely credited the money in his own account even though noting may have been owing from him to the respondent on that date. Whether it was one or the other the respondents would, with respect to the amounts for which the cheques were drawn, have become actual recipients of the money from the appellant, upon realisation of the cheques drawn by the appellant. Indeed, as the cheques were returned unpaid by the drawee bank the respondents made a debit entry on December 11, 1960 of Rs. 8,800 against the appellant in his account with them. This would show that the respondent accepted the position that they were acting in this matter not as the appellants agents but as payees. This explains why, as admitted by Dutta, the respondent accepted from the Bharati Central Bank cheques on Nath Bank on their own responsibility instead of insisting upon cash. Indeed, as pointed out at p. 300 in Chalmers on Bills of Exchange (8th Edn.):"consequently an authority to an agent to receive a payment due to his principal is not in itself an authority to receive it by bill or cheque." Therefore, the respondents would not have acted in the way they did had they regarded themselves as merely agents of the appellant for collecting his cheques. Dutta has, in his evidence, stated that no formal note in writing was sent to the appellant by the respondents about the dishonouring of the cheque by the Nath Bank. Nor did they inform him of having debited his account with Rs. 8,800. No doubt, according to him, after a demand draft was issued to them by the Bharati Central Bank the respondents informed the appellant. But after that draft was dishonoured on presentation, no information whatsoever was given to the appellant. This would further strengthen the conclusion that the respondents were acting for themselves at every stage after the cheques for Rs. 600 and Rs. 8,200 were credited in his account with them by the appellant. Therefore, though it is true that the sum of Rs. 8,800 was not received by the respondent in cash they must be deemed to have received the sum either by reason of the fact that they obtained from the Bharati Central Bank a cheque for Rs. 8,800 on the Nath Bank or by the acceptance by them of a demand draft drawn by the Bharati Central Bank, Shillong, on their Calcutta Branch. It is difficult to see how they can hold the appellant, whose account with the Bharati Central Bank has been debited by that Bank to the extent of Rs. 8,800, as being still liable upon those cheques. Whatever rights the respondents have, are against the Bharati Central Bank and not the appellant. Indeed, having claimed as against the Bharati Central Bank to be treated as preferential creditors of that Bank to the tune of Rs. 8,800, particularly when on their own showing what was owing to them from the appellant was something less than Rs. 600, they cannot now be heard to say that they merely acted as the appellants agents. 17. For these reasons, disagreeing with the High Court, I hold that the appellants name cannot be included in the list of the respondents debtors. I would, therefore, allow the appeal and dismiss the application of the Liquidator under Section 45-D of the Banking Companies Act in so far as it relates to the appellant, with costs throughout and would direct further that the respondents pay the appellants costs both here and in the High Court. ORDER | 0[ds]7. A banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by the customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business and applicable to the matter in hand. The banker is also bound to use reasonable skill and diligence in presenting and securing payment of the cheque and placing the proceeds to his customers accounts and in taking such other steps as may be proper, to secure the customers interests. In the instant case, it is not shown that the respondent acted negligently in breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers at Shillong8. There is no substance in the further contention of the appellant that by preferring a claim as creditor in respect of the draft in the liquidation of the Bharati Central Bank, the respondent accepted the draft in satisfaction of its dues from the appellant. The respondent owed a duty to the appellant to take steps in the liquidation proceedings for the realisation of the amount of the draft. By preferring the claim, the respondent preserved all rights in respect of the draft and acted in the best interests of the appellant. In the circumstances the Courts below rightly gave appropriate directions on the respondent for giving credit to the appellant for all sums which may be realised by the respondent from the Official Liquidator of the Bharati Central Bank. The Courts below rightly answered issue No. 1 in the negative11. In the instant case, there were mutual dealings between the parties. The respondent Bank gave loans on overdrafts, and the appellant made deposits. The loans by the respondent created obligations on the appellant to repay them. The respondent was under independent obligations to repay the amount of the cash deposits and to account for the cheques, hundis and drafts deposited for collection. There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account. The deposits made by the appellant were not merely complete or partial discharges of its obligations to the respondent. There were shifting balances; on many occasions the balance was in favour of the appellant and on many other occasions, the balance was in favour of the respondent. There were reciprocal demands between the parties, and the account was mutual. This mutual account was fairly active up to June 25, 1947. It is not shown that the account ceased to be mutual thereafter. The parties contemplated the possibility of mutual dealings in future. The mutual account continued until December 29, 1950 when the last entry in the account was made. It is conceded on behalf of the appellant that if the account was mutual and continued to be so until December 29, 1950, the suit is not barred by limitation, having regard to S. 46(O) of the Banking Companies Act. The Courts below, therefore, rightly answered issue No. 1 in the negative12. The claim by the respondent on account of interest was contested in the Courts below, but that claim is no longer contested before us13. The High Court discussed at length the legal characteristics of a demand draft, as also questions relating to the interpretation of S. 45(O) of the Banking Companies Act. In view of the contentions raised before, as those questions do not arise, and we do not propose to express any opinion thereon. | 0 | 5,198 | 655 | ### Instruction:
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when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the bankers is money known by the principal to be placed there for the purpose of being under the control of the banker; it is then the bankers money; he is known to deal with it as his own; he makes himself, by paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places. That being established to be the relative situations of banker and customer, the banker is not an agent or factor, but he is a debtor." What would be the position if instead of paying in cash the customer hands in cheques or bills? With regard to this Sheldon has laid as follows:"In Joachimson v. Swiss Bank Corporation, (1921-3 KB l10), Lord Justice Atkin gave an admirable summary of the position. He stated that the banker undertakes to receive money and collect bills for his customers account, and that money so received is not held in trust for the customer but borrowed from him with a promise to repay it or any part of it..... against the customers written order addressed to the bank at such branch", (pp. 201-202). In the appeal before us the two cheques for Rs. 600 and Rs. 8,200 have not been placed on record and so we do not know in whose favour they were drawn and if they were drawn by the appellant in favour of "self" what endorsement he had made on the back of the cheques. The cheques could have been drawn by the appellant either in his own favour or in favour of the bank. Whichever be the position the fact remains that these two cheques were credited by him in his account with the respondent. That is not all. Since the appellant had a mutual open and current account with the respondent it may well be that money was owing by him to the respondent on that date and, therefore, he drew these two cheques on the Bharati Central Bank and credited them in his account with the respondent. Or it may be that the appellant merely credited the money in his own account even though noting may have been owing from him to the respondent on that date. Whether it was one or the other the respondents would, with respect to the amounts for which the cheques were drawn, have become actual recipients of the money from the appellant, upon realisation of the cheques drawn by the appellant. Indeed, as the cheques were returned unpaid by the drawee bank the respondents made a debit entry on December 11, 1960 of Rs. 8,800 against the appellant in his account with them. This would show that the respondent accepted the position that they were acting in this matter not as the appellants agents but as payees. This explains why, as admitted by Dutta, the respondent accepted from the Bharati Central Bank cheques on Nath Bank on their own responsibility instead of insisting upon cash. Indeed, as pointed out at p. 300 in Chalmers on Bills of Exchange (8th Edn.):"consequently an authority to an agent to receive a payment due to his principal is not in itself an authority to receive it by bill or cheque." Therefore, the respondents would not have acted in the way they did had they regarded themselves as merely agents of the appellant for collecting his cheques. Dutta has, in his evidence, stated that no formal note in writing was sent to the appellant by the respondents about the dishonouring of the cheque by the Nath Bank. Nor did they inform him of having debited his account with Rs. 8,800. No doubt, according to him, after a demand draft was issued to them by the Bharati Central Bank the respondents informed the appellant. But after that draft was dishonoured on presentation, no information whatsoever was given to the appellant. This would further strengthen the conclusion that the respondents were acting for themselves at every stage after the cheques for Rs. 600 and Rs. 8,200 were credited in his account with them by the appellant. Therefore, though it is true that the sum of Rs. 8,800 was not received by the respondent in cash they must be deemed to have received the sum either by reason of the fact that they obtained from the Bharati Central Bank a cheque for Rs. 8,800 on the Nath Bank or by the acceptance by them of a demand draft drawn by the Bharati Central Bank, Shillong, on their Calcutta Branch. It is difficult to see how they can hold the appellant, whose account with the Bharati Central Bank has been debited by that Bank to the extent of Rs. 8,800, as being still liable upon those cheques. Whatever rights the respondents have, are against the Bharati Central Bank and not the appellant. Indeed, having claimed as against the Bharati Central Bank to be treated as preferential creditors of that Bank to the tune of Rs. 8,800, particularly when on their own showing what was owing to them from the appellant was something less than Rs. 600, they cannot now be heard to say that they merely acted as the appellants agents. 17. For these reasons, disagreeing with the High Court, I hold that the appellants name cannot be included in the list of the respondents debtors. I would, therefore, allow the appeal and dismiss the application of the Liquidator under Section 45-D of the Banking Companies Act in so far as it relates to the appellant, with costs throughout and would direct further that the respondents pay the appellants costs both here and in the High Court. ORDER
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7. A banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by the customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business and applicable to the matter in hand. The banker is also bound to use reasonable skill and diligence in presenting and securing payment of the cheque and placing the proceeds to his customers accounts and in taking such other steps as may be proper, to secure the customers interests. In the instant case, it is not shown that the respondent acted negligently in breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers at Shillong8. There is no substance in the further contention of the appellant that by preferring a claim as creditor in respect of the draft in the liquidation of the Bharati Central Bank, the respondent accepted the draft in satisfaction of its dues from the appellant. The respondent owed a duty to the appellant to take steps in the liquidation proceedings for the realisation of the amount of the draft. By preferring the claim, the respondent preserved all rights in respect of the draft and acted in the best interests of the appellant. In the circumstances the Courts below rightly gave appropriate directions on the respondent for giving credit to the appellant for all sums which may be realised by the respondent from the Official Liquidator of the Bharati Central Bank. The Courts below rightly answered issue No. 1 in the negative11. In the instant case, there were mutual dealings between the parties. The respondent Bank gave loans on overdrafts, and the appellant made deposits. The loans by the respondent created obligations on the appellant to repay them. The respondent was under independent obligations to repay the amount of the cash deposits and to account for the cheques, hundis and drafts deposited for collection. There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account. The deposits made by the appellant were not merely complete or partial discharges of its obligations to the respondent. There were shifting balances; on many occasions the balance was in favour of the appellant and on many other occasions, the balance was in favour of the respondent. There were reciprocal demands between the parties, and the account was mutual. This mutual account was fairly active up to June 25, 1947. It is not shown that the account ceased to be mutual thereafter. The parties contemplated the possibility of mutual dealings in future. The mutual account continued until December 29, 1950 when the last entry in the account was made. It is conceded on behalf of the appellant that if the account was mutual and continued to be so until December 29, 1950, the suit is not barred by limitation, having regard to S. 46(O) of the Banking Companies Act. The Courts below, therefore, rightly answered issue No. 1 in the negative12. The claim by the respondent on account of interest was contested in the Courts below, but that claim is no longer contested before us13. The High Court discussed at length the legal characteristics of a demand draft, as also questions relating to the interpretation of S. 45(O) of the Banking Companies Act. In view of the contentions raised before, as those questions do not arise, and we do not propose to express any opinion thereon.
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M/s. Burrakur Coal Co. Ltd Vs. Union of India & Others | taken into account in determining the amount of compensation, the concluding words of Art. 31 (2) preclude the petitioners from challenging the law. Mr. Das pointed out that the only ground on which the Central Government in their affidavit have tried to sustain the validity of the provisions relating to the acquisition of land under the Act is that a challenge to the validity of the law is barred by the provisions of Art. 31A (1) (e) and that it is not now open to the Central Government to say that the law can be sustained on another ground. We cannot accept this contention.Where the validity of a law made by a competent legislature is challenged in a Court of law that Court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained. There is no doubt that the entire Act cannot be sustained by resorting only to Art. 31A (1) (e) or to Art. 31 (2A) of the Constitution because these provisions do not deal with the question of acquisition and the Attorney-General fairly admitted that it could not be so sustained.The opening words of sub-sec. (2) of S. 13 read thus :"Where the rights under a mining lease are acquired under this Act, there shall be paid to the person interested compensation, the amount of which shall be a sum made up of the following items, namely,........".Then follow the items which have to be added up. Undoubtedly they are items of expenditure and interest on such expenditure. Sub-section (3) deals with the procedure to be adopted where the rights acquired under S. 9 relate only a part of the land covered by the mining lease. Sub-section (4) deals with the compensation to be paid where the mining lease ceases to have effect for any period under cl. (b) of S. 5. Sub-section (5) provides for payment of compensation for any land acquired under S. 9 and lays down the principles to be followed in computing the compensation. Sub-section (6) provides for payment of compensation for damage done to the surface of any land or any works thereon and in respect whereof no provision for compensation is made elsewhere in the Act. Sub-section (7) deals with the question of compensation for maps, charts and other documents. Section 14 of the Act deals with the method of determining the compensation.It will be clear from these provisions that the Act specifies the principles on which and the manner in which the compensation should be determined and given. This is all that is required of a law relating to the acquisition of property by Art. 31(2) of the Constitution. Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any court on the ground that the compensation provided by that law is not adequate. Here compensation is specifically provided for the land which is to be acquired under the Act. The land includes all that lies beneath the surface or, as Mr. Das put it, all that is "locked up" in the land. Parliament has laid down in sub-sec. (5) of S. 13 how the value of this land is to be calculated. The contention that the provisions made by Parliament for computing the amount of compensation for the land do not take into account the value of the minerals is in effect a challenge to the adequacy of the compensation payable under the Act. The concluding words of Art. 31(2) preclude such a challenge being made.26. But Mr. Das contended that the minerals are a separate tenement and have to be separately compensated for. We have already dealt with the contention of Mr. Das that the minerals underlying the surface are a separate tenement and we need not repeat here all that we have said before.In our opinion the minerals cannot be regarded as a separate tenement except perhaps in a case of a trespass and, therefore, there is no question of the law providing for a separate compensation for them. Apart from that if minerals have become a separate tenement then the present Act may not apply to such a tenement at all. As we have pointed out the coal contained in the two collieries in question is not held by the respective petitioners as a tenement separate from the surface.In the circumstances the challenge to the validity of the Act on the ground that it offends Art. 31 (2) of the Constitution fails, and we dismiss the petition with costs.27. We must say a few words about W. P. 242 of 1960. Out of 737 bighas of land held by the petitioner in that writ petition, we are informed that 321 bighas have been worked. The working of this mine was closed in the year 1928 on the ground that the mine was flooded. An application was made by the petitioner for reopening the mine on June 5, 1957. Repeated reminders were sent subsequently but there was no reply to any of them either. In its application the petitioner, it may be stated, did not apply for opening new mines. Since the necessary permission was not received, it did not commence any operations. We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past. Even so, we do not think that any different considerations could apply to the petitioners case from those which apply to the case of the Burrakur Coal Co. The petitioners colliery was also dormant for too long a period and was thus an "unworked mine". The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakur Coal Co. Ltd. | 0[ds]While holding that it is permissible to look at the preamble for understanding the import of the various clauses contained in the Bill this Court has not said that full effect should not be given to the express provisions of the Bill even though they appear to go beyond the terms of the preamble. It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of an enactment is not clear, the preamble may be resorted to to explain it.Again, where very general language is used in an enactment which it is clear must be intended to have a limited application, the preamble may be used to indicate to what particular instances the enactment is intended to apply*(a).We cannot therefore, start with the preamble for construing the provisions of an Act, though we would be justified in resorting to it, nay, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of fact Parliament intended that it should have a limitedvery fact that power has been given to the Central Government to enter upon and survey land for the purpose of ascertaining whether there is any coal in that land shows that the legislature had in mind only that land which has not been mentioned as coal bearing in any of the reports of the Geological Survey India.Here again we may point out that the object of survey of land is to enable the Government to satisfy itself not merely about the fact that any coal exists in that land but also about the quality and quantity of coal therein and whether it would be an economical proposition to work the mines already existing on thatcannot, however, accede to the contention that the resumption of mining operations on a land is outside the bar created by this provision. The words used in the section are "to undertake any operations in the land" which , according to the Concise Oxford Dictionary mean "to enter upon (work, enterprise, responsibility)". The meaning of the provision, therefore, is that what the lessee is prohibited from doing is something which he was not doing at the date of the notification though he was authorised to do it under his lease. Thus if a colliery was not functioning at the date of the notification then by virtue of the provisions of S. 5(b) he would not be permitted to work it. Undoubtedly the provision has to be interpreted reasonably and it does not mean that if the notification came into force on a Monday and the mine was not worked on Sunday because of a holiday, the lessee was prohibited by the notification from workingdoubt the petitioner had given notice as required by these provisions. No doubt also that it was necessary for the authorities concerned to take appropriate action on the notice. But it is difficult to say that the inaction of the authorises can be availed of by the petitioner. We must given effect to the plain language of sub-s. (4) of S. 4. That provision in clear terms makes an exclusion or exemption only with regard to that portion of the land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment rule or order. Therefore, it is clear that Parliament was exempting only such collieries as were being worked in consonance with the provisions of law. Mr. Dass argument, however, is that the Act prescribes penalties for the breach of its provisions and of those of the regulations and so the petitioner could well be visited with an appropriate penalty but that its right to run the mine could not be affected. We are not here concerned with the question whether the failure of the petitioner to comply with the requirements of the Coal Mines Act or of the Regulations of 1957 precludes the petitioner under that Act or under those regulations from carrying on miningto S. 6(1) of the Act which deals with compensation for any necessary damage done under S. 4 of the Act, learned counsel contended that Parliament plainly intended the Act to apply to virgin land. If the section was intended to apply to worked mines there would have been provision, according to learned counsel, for payment of compensation to the owner or lessee of the mine, for being deprived of his right to work the mine consequent upon the issue of the notification. It is sufficient to point out that S. 4 does not contemplate entering upon any land which is actually being worked and there will thus be no deprivation in fact of the owners or lessees right of working the mine. The Act applies only to "unworked lands". This expression would include not only virgin lands but also lands on which mines may have been opened and worked sometime in the past but working on those mines was either discontinued or abandoned. Of course, it is possible to say that the action of the Government would interfere with the potential rights of the owner or the lessee to work the mines and this would interfere with his right to hold property and carry on his business. When we deal with the other part of Mr. Dass argument we shall deal with thisis difficult to appreciate the contention that merely because the owner or the lessee of a land had opened mines on that land a severance is effected between the surface and the underground minerals. It may be that a trespasser by adverse possession for the statutory period can acquire rights to underground minerals. It may also be that if that happens the surface right would become severed from the mineral rights as a result of which the minerals underground would form a separate tenement. It is, however difficult to see how the owner or the lessee of land who has right to minerals can effect such a severance between the mineral rights and surface rights by opening and operating the mines of that land. For, even while he is carrying on mining operations he continues to enjoy the surface rights also. We cannot, therefore, accept the contention that there was any severance of the mineral rights and surface rights in either of these twono point can be made from the absence of a provision for compensation for minerals that the Act was applicable only to virgin lands. For all these reasons it is clear that the notification is not ultra vires the Act because, in our view the Act applies not only to virgin lands but also to dormant collieries or unworked lands.20.To sum up, in our view, the preamble of this Act need not be resorted to for construing its provisions and in particular for understanding the meaning of the word "land" used in the Act; that even if the preamble is taken into consideration the expression "unworked land" occurring in the preamble should be given its ordinary meaning, that is to say, land which was not being worked at the time of the notification issued under the Act, which would include dormant mines; that the provisions of the Act and in particular those of sub-sec. (4) of S. 4 and S. 5(b) clearly militate against the contention that the Act was intended to apply only to virgin lands, to the exclusion of land on which there are dormant mines, and that the absence of a provision in S. 13 of the Act providing for compensation for mineral rights cannot be itself justify the conclusion that the Act was intended to apply to virgin landhave already indicated that prospecting operations, in their very nature, must take a long time to complete and presumably Parliament had fixed this period after bearing in mind this factor and also on the basis of expert advice.Of course, there are no pleadings to that effect in the affidavit of the State. But in our opinion the petitioner cannot be permitted to complain of the absence of pleading because it has not itself stated in the petition what would be reasonable time for conducting prospecting operations. We are, therefore, unable to accede to thesee no ground whatsoever for holding that for a thing to be a modification it must be of a permanent duration. A right may well be modified for all time or for a limited duration and in either case the right must be regarded as having been modified.For these reasons we hold that the provisions of Art. 31A, Cl. (1)(e), debar the petitioners from challenging the validity of Ss. 4 and 5 of the Act on the ground that they infringe the provisions of Art. 31 (2) of thecannot accept this contention.Where the validity of a law made by a competent legislature is challenged in a Court of law that Court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained. There is no doubt that the entire Act cannot be sustained by resorting only to Art. 31A (1) (e) or to Art. 31 (2A) of the Constitution because these provisions do not deal with the question of acquisition and the Attorney-General fairly admitted that it could not be soour opinion the minerals cannot be regarded as a separate tenement except perhaps in a case of a trespass and, therefore, there is no question of the law providing for a separate compensation for them. Apart from that if minerals have become a separate tenement then the present Act may not apply to such a tenement at all. As we have pointed out the coal contained in the two collieries in question is not held by the respective petitioners as a tenement separate from the surface.In the circumstances the challenge to the validity of the Act on the ground that it offends Art. 31 (2) of the Constitution fails, and we dismiss the petition withapplication was made by the petitioner for reopening the mine on June 5, 1957. Repeated reminders were sent subsequently but there was no reply to any of them either. In its application the petitioner, it may be stated, did not apply for opening new mines. Since the necessary permission was not received, it did not commence any operations. We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past. Even so, we do not think that any different considerations could apply to the petitioners case from those which apply to the case of the Burrakur Coal Co. The petitioners colliery was also dormant for too long a period and was thus an "unworked mine". The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakur Coal Co. Ltd. | 0 | 8,607 | 2,019 | ### 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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taken into account in determining the amount of compensation, the concluding words of Art. 31 (2) preclude the petitioners from challenging the law. Mr. Das pointed out that the only ground on which the Central Government in their affidavit have tried to sustain the validity of the provisions relating to the acquisition of land under the Act is that a challenge to the validity of the law is barred by the provisions of Art. 31A (1) (e) and that it is not now open to the Central Government to say that the law can be sustained on another ground. We cannot accept this contention.Where the validity of a law made by a competent legislature is challenged in a Court of law that Court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained. There is no doubt that the entire Act cannot be sustained by resorting only to Art. 31A (1) (e) or to Art. 31 (2A) of the Constitution because these provisions do not deal with the question of acquisition and the Attorney-General fairly admitted that it could not be so sustained.The opening words of sub-sec. (2) of S. 13 read thus :"Where the rights under a mining lease are acquired under this Act, there shall be paid to the person interested compensation, the amount of which shall be a sum made up of the following items, namely,........".Then follow the items which have to be added up. Undoubtedly they are items of expenditure and interest on such expenditure. Sub-section (3) deals with the procedure to be adopted where the rights acquired under S. 9 relate only a part of the land covered by the mining lease. Sub-section (4) deals with the compensation to be paid where the mining lease ceases to have effect for any period under cl. (b) of S. 5. Sub-section (5) provides for payment of compensation for any land acquired under S. 9 and lays down the principles to be followed in computing the compensation. Sub-section (6) provides for payment of compensation for damage done to the surface of any land or any works thereon and in respect whereof no provision for compensation is made elsewhere in the Act. Sub-section (7) deals with the question of compensation for maps, charts and other documents. Section 14 of the Act deals with the method of determining the compensation.It will be clear from these provisions that the Act specifies the principles on which and the manner in which the compensation should be determined and given. This is all that is required of a law relating to the acquisition of property by Art. 31(2) of the Constitution. Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any court on the ground that the compensation provided by that law is not adequate. Here compensation is specifically provided for the land which is to be acquired under the Act. The land includes all that lies beneath the surface or, as Mr. Das put it, all that is "locked up" in the land. Parliament has laid down in sub-sec. (5) of S. 13 how the value of this land is to be calculated. The contention that the provisions made by Parliament for computing the amount of compensation for the land do not take into account the value of the minerals is in effect a challenge to the adequacy of the compensation payable under the Act. The concluding words of Art. 31(2) preclude such a challenge being made.26. But Mr. Das contended that the minerals are a separate tenement and have to be separately compensated for. We have already dealt with the contention of Mr. Das that the minerals underlying the surface are a separate tenement and we need not repeat here all that we have said before.In our opinion the minerals cannot be regarded as a separate tenement except perhaps in a case of a trespass and, therefore, there is no question of the law providing for a separate compensation for them. Apart from that if minerals have become a separate tenement then the present Act may not apply to such a tenement at all. As we have pointed out the coal contained in the two collieries in question is not held by the respective petitioners as a tenement separate from the surface.In the circumstances the challenge to the validity of the Act on the ground that it offends Art. 31 (2) of the Constitution fails, and we dismiss the petition with costs.27. We must say a few words about W. P. 242 of 1960. Out of 737 bighas of land held by the petitioner in that writ petition, we are informed that 321 bighas have been worked. The working of this mine was closed in the year 1928 on the ground that the mine was flooded. An application was made by the petitioner for reopening the mine on June 5, 1957. Repeated reminders were sent subsequently but there was no reply to any of them either. In its application the petitioner, it may be stated, did not apply for opening new mines. Since the necessary permission was not received, it did not commence any operations. We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past. Even so, we do not think that any different considerations could apply to the petitioners case from those which apply to the case of the Burrakur Coal Co. The petitioners colliery was also dormant for too long a period and was thus an "unworked mine". The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakur Coal Co. Ltd.
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Government would interfere with the potential rights of the owner or the lessee to work the mines and this would interfere with his right to hold property and carry on his business. When we deal with the other part of Mr. Dass argument we shall deal with thisis difficult to appreciate the contention that merely because the owner or the lessee of a land had opened mines on that land a severance is effected between the surface and the underground minerals. It may be that a trespasser by adverse possession for the statutory period can acquire rights to underground minerals. It may also be that if that happens the surface right would become severed from the mineral rights as a result of which the minerals underground would form a separate tenement. It is, however difficult to see how the owner or the lessee of land who has right to minerals can effect such a severance between the mineral rights and surface rights by opening and operating the mines of that land. For, even while he is carrying on mining operations he continues to enjoy the surface rights also. We cannot, therefore, accept the contention that there was any severance of the mineral rights and surface rights in either of these twono point can be made from the absence of a provision for compensation for minerals that the Act was applicable only to virgin lands. For all these reasons it is clear that the notification is not ultra vires the Act because, in our view the Act applies not only to virgin lands but also to dormant collieries or unworked lands.20.To sum up, in our view, the preamble of this Act need not be resorted to for construing its provisions and in particular for understanding the meaning of the word "land" used in the Act; that even if the preamble is taken into consideration the expression "unworked land" occurring in the preamble should be given its ordinary meaning, that is to say, land which was not being worked at the time of the notification issued under the Act, which would include dormant mines; that the provisions of the Act and in particular those of sub-sec. (4) of S. 4 and S. 5(b) clearly militate against the contention that the Act was intended to apply only to virgin lands, to the exclusion of land on which there are dormant mines, and that the absence of a provision in S. 13 of the Act providing for compensation for mineral rights cannot be itself justify the conclusion that the Act was intended to apply to virgin landhave already indicated that prospecting operations, in their very nature, must take a long time to complete and presumably Parliament had fixed this period after bearing in mind this factor and also on the basis of expert advice.Of course, there are no pleadings to that effect in the affidavit of the State. But in our opinion the petitioner cannot be permitted to complain of the absence of pleading because it has not itself stated in the petition what would be reasonable time for conducting prospecting operations. We are, therefore, unable to accede to thesee no ground whatsoever for holding that for a thing to be a modification it must be of a permanent duration. A right may well be modified for all time or for a limited duration and in either case the right must be regarded as having been modified.For these reasons we hold that the provisions of Art. 31A, Cl. (1)(e), debar the petitioners from challenging the validity of Ss. 4 and 5 of the Act on the ground that they infringe the provisions of Art. 31 (2) of thecannot accept this contention.Where the validity of a law made by a competent legislature is challenged in a Court of law that Court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained. There is no doubt that the entire Act cannot be sustained by resorting only to Art. 31A (1) (e) or to Art. 31 (2A) of the Constitution because these provisions do not deal with the question of acquisition and the Attorney-General fairly admitted that it could not be soour opinion the minerals cannot be regarded as a separate tenement except perhaps in a case of a trespass and, therefore, there is no question of the law providing for a separate compensation for them. Apart from that if minerals have become a separate tenement then the present Act may not apply to such a tenement at all. As we have pointed out the coal contained in the two collieries in question is not held by the respective petitioners as a tenement separate from the surface.In the circumstances the challenge to the validity of the Act on the ground that it offends Art. 31 (2) of the Constitution fails, and we dismiss the petition withapplication was made by the petitioner for reopening the mine on June 5, 1957. Repeated reminders were sent subsequently but there was no reply to any of them either. In its application the petitioner, it may be stated, did not apply for opening new mines. Since the necessary permission was not received, it did not commence any operations. We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past. Even so, we do not think that any different considerations could apply to the petitioners case from those which apply to the case of the Burrakur Coal Co. The petitioners colliery was also dormant for too long a period and was thus an "unworked mine". The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakur Coal Co. Ltd.
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MARUTI SUZUKI INDIA LTD. (EARLIER KNOWN AS MARUTI UDYOG LTD.) Vs. COMMISSIONER OF INCOME TAX DELHI | actually paid during the relevant year previous to the assessment year 1984-85. The Commissioner of Income-tax initiated proceedings under section 263 of the Act on the ground that the Assessing Officer had wrongly allowed the claim for deduction of an amount of Rs.98,25,833/- towards customs and Excise Duty paid during the previous year but credited to the profit and loss account in closing stock of goods under the provisions of Section 43B. the assessee relied upon the judgment of the Gujarat high Court in Lakhanpal National Ltd. Vs. ITO[1986] 162 ITR 240[hereinafter referred to as Lakhanpal National Ltd.s case] in support of its claim. The Commissioner of Income-tax took the view that the Gujarat High Courts decision was distinguishable on facts and, therefore, made an order under section 263 of the Act disallowing the claim of the assessee. On appeal to the Tribunal, the Tribunal held that the Gujarat high courts judgment in Lakhanpal National Ltd.s case [1986] 162 ITR 240 was distinguishable and confirmed the order of the Commissioner of Income-tax. On an application made under section 256(1) of the Act at the instance of the appellant-assessee, the Tribunal, inter alia, referred the following question of law for the opinion of the High Court (see [2002] 253 IT 738, 739): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the assessees claim for deduction of the excise and customs duties of Rs.98,25,833 paid in the year of account and debited in the profit and loss account, on the ground that the crediting of the profit and loss account by the value of the closing stock, which included the aforesaid duties, did not have the effect of wiping out the debit to the profit and loss account? The High Court by its judgment dated September 24, 2001, in I.T.R.No.213 of 1993 (see [2002] 253 ITR 738 ), answered the question referred in favour of the Revenue and against the assessee. 29. This Court in Berger Paints Ltd. (Supra) upheld the view of assessing officer and decided the question in favour of the assessee. This Court held that the Commissioner of Income Tax has incorrectly distinguished the judgment of Lakhan Pal National Ltd. Case. 30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit. 31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: - 52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account. 32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question. 33. The next submission which has been advanced by Shri Ganesh is on the first proviso to Section 43B. It has been submitted that Return for the assessment year in question was to be filed before 30.09.1999 and unutilised credit in fact was fully utilised by 30.04.1999 itself. It is submitted that since the unutilised credit was utilised for payment of Excise Duty on the manufactured vehicles, the said amount ought to have been allowed as permissible deduction under Section 43B. 34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim. | 1[ds]11. The untilised MODVAT credit on 31.03.1999 to the credit of the assessee was Rs.69,93,00,428/-. The MODVAT credit was accumulated to the account of the assessee due to payment of Excise Duty on raw materials and inputs which were supplied to it by the suppliers and reflected in the invoices by which raw materials and inputs were supplied. There is no denial to the fact that the appellant was entitled to utilise this credit in payment of Excise Duty to which the assessee was liable in payment of Excise Duty on manufacture of its products15. The taxable event is manufacture and production of excisable articles and payment of duty is relatable to date of removal of such article from the factory. The manufacture of the raw materials or inputs which have been used by the appellant are the excisable items within the meaning of Central Excise Rules, 1944. The Excise Duty is leviable on the manufacturer of raw materials and inputs. The supplier of raw materials or inputs includes the Excise Duty paid on such articles in his sale invoices. The appellant when purchases raw materials and inputs for manufacture of vehicles it maintains a separate account containing the Excise Duty as mentioned in sale invoices. The credit of such Excise Duty paid by the appellant is to be given to the appellant by virtue of Rule 57A to 57F of Central Excise Rules, 1944 as it then existed. The appellant was fully entitled to discharge his liability to pay Excise Duty on vehicles manufactured by adjusting the credit of Excise Duty earned by it as per MODVAT scheme. The liability to pay Excise Duty is not fastened on two entities as per the scheme of Central Excise Act and Central Excise Rules. It is the manufacturer of raw materials and inputs which are used by appellant who has statutory liability to pay Excise Duty. The appellant is not assessee within the meaning of Central Excise Act, 1944, with reference to raw materials and inputs manufactured by the entities from which appellant had purchased the raw materials and entitiesIn the present case, the Excise Duty leviable on appellant on manufacture of vehicles was already adjusted in the concerned assessment year from the credit of Excise Duty under the MODVAT scheme. The unutilised credit in the MODVAT scheme cannot be treated as sum actually paid by the appellant. The assessee when pays the cost of raw materials where the duty is embedded, it does not ipso facto mean that assessee is the one who is liable to pay Excise Duty on such raw material/inputs. It is merely the incident of Excise Duty that has shifted from the manufacturer to the purchaser and not the liability to the same18. We thus, conclude that the unutilised credit under MODVAT scheme does not qualify for deductions under Section 43B of the Income Tax Act23. The above observation cannot be read to mean that payment of Excise Duty by the appellant which was component of sale invoice purchasing the raw material/inputs by the appellant is also payment of Excise Duty on raw material/inputs24. By payment of component of Excise Duty as included in sale invoice is benefit which is given to appellant by virtue of credit as envisaged in statutory scheme of Rule 57-A to 57-I of Central Excise Rules, 1944. The above judgment thus in no manner supports the submissions of the appellant for the purposes of the present caseThe question which was answered in the above case was entirely different to one which has arisen in the present case27. This Court as noted above in the above case has laid down that credit for the Excise Duty paid for the raw material can be used at any time when making payment of Excise Duty on excisable product. The user of such credit is at the time of payment of Excise Duty on the excisable product i.e. at the time when appellant is to pay Excise Duty on its manufactured vehicle30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: -52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim. | 1 | 5,413 | 1,284 | ### Instruction:
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actually paid during the relevant year previous to the assessment year 1984-85. The Commissioner of Income-tax initiated proceedings under section 263 of the Act on the ground that the Assessing Officer had wrongly allowed the claim for deduction of an amount of Rs.98,25,833/- towards customs and Excise Duty paid during the previous year but credited to the profit and loss account in closing stock of goods under the provisions of Section 43B. the assessee relied upon the judgment of the Gujarat high Court in Lakhanpal National Ltd. Vs. ITO[1986] 162 ITR 240[hereinafter referred to as Lakhanpal National Ltd.s case] in support of its claim. The Commissioner of Income-tax took the view that the Gujarat High Courts decision was distinguishable on facts and, therefore, made an order under section 263 of the Act disallowing the claim of the assessee. On appeal to the Tribunal, the Tribunal held that the Gujarat high courts judgment in Lakhanpal National Ltd.s case [1986] 162 ITR 240 was distinguishable and confirmed the order of the Commissioner of Income-tax. On an application made under section 256(1) of the Act at the instance of the appellant-assessee, the Tribunal, inter alia, referred the following question of law for the opinion of the High Court (see [2002] 253 IT 738, 739): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the assessees claim for deduction of the excise and customs duties of Rs.98,25,833 paid in the year of account and debited in the profit and loss account, on the ground that the crediting of the profit and loss account by the value of the closing stock, which included the aforesaid duties, did not have the effect of wiping out the debit to the profit and loss account? The High Court by its judgment dated September 24, 2001, in I.T.R.No.213 of 1993 (see [2002] 253 ITR 738 ), answered the question referred in favour of the Revenue and against the assessee. 29. This Court in Berger Paints Ltd. (Supra) upheld the view of assessing officer and decided the question in favour of the assessee. This Court held that the Commissioner of Income Tax has incorrectly distinguished the judgment of Lakhan Pal National Ltd. Case. 30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit. 31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: - 52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account. 32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question. 33. The next submission which has been advanced by Shri Ganesh is on the first proviso to Section 43B. It has been submitted that Return for the assessment year in question was to be filed before 30.09.1999 and unutilised credit in fact was fully utilised by 30.04.1999 itself. It is submitted that since the unutilised credit was utilised for payment of Excise Duty on the manufactured vehicles, the said amount ought to have been allowed as permissible deduction under Section 43B. 34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim.
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of such Excise Duty paid by the appellant is to be given to the appellant by virtue of Rule 57A to 57F of Central Excise Rules, 1944 as it then existed. The appellant was fully entitled to discharge his liability to pay Excise Duty on vehicles manufactured by adjusting the credit of Excise Duty earned by it as per MODVAT scheme. The liability to pay Excise Duty is not fastened on two entities as per the scheme of Central Excise Act and Central Excise Rules. It is the manufacturer of raw materials and inputs which are used by appellant who has statutory liability to pay Excise Duty. The appellant is not assessee within the meaning of Central Excise Act, 1944, with reference to raw materials and inputs manufactured by the entities from which appellant had purchased the raw materials and entitiesIn the present case, the Excise Duty leviable on appellant on manufacture of vehicles was already adjusted in the concerned assessment year from the credit of Excise Duty under the MODVAT scheme. The unutilised credit in the MODVAT scheme cannot be treated as sum actually paid by the appellant. The assessee when pays the cost of raw materials where the duty is embedded, it does not ipso facto mean that assessee is the one who is liable to pay Excise Duty on such raw material/inputs. It is merely the incident of Excise Duty that has shifted from the manufacturer to the purchaser and not the liability to the same18. We thus, conclude that the unutilised credit under MODVAT scheme does not qualify for deductions under Section 43B of the Income Tax Act23. The above observation cannot be read to mean that payment of Excise Duty by the appellant which was component of sale invoice purchasing the raw material/inputs by the appellant is also payment of Excise Duty on raw material/inputs24. By payment of component of Excise Duty as included in sale invoice is benefit which is given to appellant by virtue of credit as envisaged in statutory scheme of Rule 57-A to 57-I of Central Excise Rules, 1944. The above judgment thus in no manner supports the submissions of the appellant for the purposes of the present caseThe question which was answered in the above case was entirely different to one which has arisen in the present case27. This Court as noted above in the above case has laid down that credit for the Excise Duty paid for the raw material can be used at any time when making payment of Excise Duty on excisable product. The user of such credit is at the time of payment of Excise Duty on the excisable product i.e. at the time when appellant is to pay Excise Duty on its manufactured vehicle30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: -52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim.
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State Of Maharashtra Vs. Ramesh Taurani | K.T. Thomas, J. 1. Leave granted. Heard the learned counsel for the parties.2. On August 12, 1997 at or about 10.15 a.m. Gulshan Kumar, a well-known film producer of Mumbai and Chairman of a company dealing in cassettes, was fatally shot at in the heart of the city. Over his death a case was registered and in connection therewith the respondent, who also carries on a large scale business in cassettes, was arrested on October 4, 1997 on the allegation that he was a party to the criminal conspiracy that was hatched up to kill Gulshan Kumar through contract killers. On his production before a Magistrate, the respondent was initially remanded to the police custody for a fortnight and thereafter to the judicial custody. His prayer for bail was rejected by the Magistrate and aggrieved thereby he moved the High Court. By its order dated October 23, 1997 the High Court granted him bail on condition that he shall not leave the limits of the State of Maharashtra without informing the police and without giving the entire itinerary of the programme of his visit. Assailing the above order, the State of Maharashtra has filed this appeal for cancellation of the bail granted to the respondent. 3. Normally, this Court does not interfere with orders granting bail but considering the nature and gravity of the offence alleged against the respondent and the materials collected against him during investigation, we are of the opinion that this is a fit case where the order of the High Court has got to be set aside to prevent mis-carriage of justice. 4. It appears from the impugned order that in granting bail to the respondent the High Court was much influenced by the fact that in the remand applications that were presented by the investigating agency in respect of accused persons who had been earlier arrested in connection with the case, the name of the respondent was nowhere disclosed as a party to the conspiracy. Remand applications are to be filed by the Investigating Agency to satisfy the Court that there are justifiable grounds to detain an accused already arrested, in police or judicial custody. By such applications the Investigating Agency is required to bring to the notice of the Court the materials collected against an arrested accused to persuade the Court to remand him to custody for the purpose of further investigation. To put it negatively, the Investigating Agency is not required to state in such application the materials, if any, collected against a person who is yet to be arrested. Such being the limited purpose of a remand application the non-disclosure of the name of the respondent as a conspirator (who was not arrested till then) in the remand applications of others arrested could not - and ought not to - have been made a ground by the High Court for disbelieving the prosecution case qua the respondent and for that matter, granting bail to him.5. The other ground that was canvassed by the High Court was that the only evidence collected against the respondent was that he handed over an amount of Rs. 25 lacs to the contract killers (who according to the prosecution committed the murder of Gulshan Kumar). Apart from the fact that in the context of the prosecution case, the above circumstance incriminates the respondent in a large way we find that the Investigating Agency has collected other incriminating materials also against the respondent, to make out a strong prima facie case against him. It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence. We are therefore of the opinion that the High Court should not have granted bail to the respondent considering the seriousness of the allegations levelled against him, particularly at a stage when investigation is continuing. | 1[ds]4. It appears from the impugned order that in granting bail to the respondent the High Court was much influenced by the fact that in the remand applications that were presented by the investigating agency in respect of accused persons who had been earlier arrested in connection with the case, the name of the respondent was nowhere disclosed as a party to the conspiracy.Remand applications are to be filed by the Investigating Agency to satisfy the Court that there are justifiable grounds to detain an accused already arrested, in police or judicial custody. By such applications the Investigating Agency is required to bring to the notice of the Court the materials collected against an arrested accused to persuade the Court to remand him to custody for the purpose of further investigation. To put it negatively, the Investigating Agency is not required to state in such application the materials, if any, collected against a person who is yet to be arrested. Such being the limited purpose of a remand application the non-disclosure of the name of the respondent as a conspirator (who was not arrested till then) in the remand applications of others arrested could not - and ought not to - have been made a ground by the High Court for disbelieving the prosecution case qua the respondent and for that matter, granting bail to him.5.The other ground that was canvassed by the High Court was that the only evidence collected against the respondent was that he handed over an amount of Rs. 25 lacs to the contract killers (who according to the prosecution committed the murder of Gulshan Kumar).Apart from the fact that in the context of the prosecution case, the above circumstance incriminates the respondent in a large way we find that the Investigating Agency has collected other incriminating materials also against the respondent, to make out a strong prima facie case against him. It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence. We are therefore of the opinion that the High Court should not have granted bail to the respondent considering the seriousness of the allegations levelled against him, particularly at a stage when investigation is continuing. | 1 | 703 | 411 | ### Instruction:
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K.T. Thomas, J. 1. Leave granted. Heard the learned counsel for the parties.2. On August 12, 1997 at or about 10.15 a.m. Gulshan Kumar, a well-known film producer of Mumbai and Chairman of a company dealing in cassettes, was fatally shot at in the heart of the city. Over his death a case was registered and in connection therewith the respondent, who also carries on a large scale business in cassettes, was arrested on October 4, 1997 on the allegation that he was a party to the criminal conspiracy that was hatched up to kill Gulshan Kumar through contract killers. On his production before a Magistrate, the respondent was initially remanded to the police custody for a fortnight and thereafter to the judicial custody. His prayer for bail was rejected by the Magistrate and aggrieved thereby he moved the High Court. By its order dated October 23, 1997 the High Court granted him bail on condition that he shall not leave the limits of the State of Maharashtra without informing the police and without giving the entire itinerary of the programme of his visit. Assailing the above order, the State of Maharashtra has filed this appeal for cancellation of the bail granted to the respondent. 3. Normally, this Court does not interfere with orders granting bail but considering the nature and gravity of the offence alleged against the respondent and the materials collected against him during investigation, we are of the opinion that this is a fit case where the order of the High Court has got to be set aside to prevent mis-carriage of justice. 4. It appears from the impugned order that in granting bail to the respondent the High Court was much influenced by the fact that in the remand applications that were presented by the investigating agency in respect of accused persons who had been earlier arrested in connection with the case, the name of the respondent was nowhere disclosed as a party to the conspiracy. Remand applications are to be filed by the Investigating Agency to satisfy the Court that there are justifiable grounds to detain an accused already arrested, in police or judicial custody. By such applications the Investigating Agency is required to bring to the notice of the Court the materials collected against an arrested accused to persuade the Court to remand him to custody for the purpose of further investigation. To put it negatively, the Investigating Agency is not required to state in such application the materials, if any, collected against a person who is yet to be arrested. Such being the limited purpose of a remand application the non-disclosure of the name of the respondent as a conspirator (who was not arrested till then) in the remand applications of others arrested could not - and ought not to - have been made a ground by the High Court for disbelieving the prosecution case qua the respondent and for that matter, granting bail to him.5. The other ground that was canvassed by the High Court was that the only evidence collected against the respondent was that he handed over an amount of Rs. 25 lacs to the contract killers (who according to the prosecution committed the murder of Gulshan Kumar). Apart from the fact that in the context of the prosecution case, the above circumstance incriminates the respondent in a large way we find that the Investigating Agency has collected other incriminating materials also against the respondent, to make out a strong prima facie case against him. It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence. We are therefore of the opinion that the High Court should not have granted bail to the respondent considering the seriousness of the allegations levelled against him, particularly at a stage when investigation is continuing.
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4. It appears from the impugned order that in granting bail to the respondent the High Court was much influenced by the fact that in the remand applications that were presented by the investigating agency in respect of accused persons who had been earlier arrested in connection with the case, the name of the respondent was nowhere disclosed as a party to the conspiracy.Remand applications are to be filed by the Investigating Agency to satisfy the Court that there are justifiable grounds to detain an accused already arrested, in police or judicial custody. By such applications the Investigating Agency is required to bring to the notice of the Court the materials collected against an arrested accused to persuade the Court to remand him to custody for the purpose of further investigation. To put it negatively, the Investigating Agency is not required to state in such application the materials, if any, collected against a person who is yet to be arrested. Such being the limited purpose of a remand application the non-disclosure of the name of the respondent as a conspirator (who was not arrested till then) in the remand applications of others arrested could not - and ought not to - have been made a ground by the High Court for disbelieving the prosecution case qua the respondent and for that matter, granting bail to him.5.The other ground that was canvassed by the High Court was that the only evidence collected against the respondent was that he handed over an amount of Rs. 25 lacs to the contract killers (who according to the prosecution committed the murder of Gulshan Kumar).Apart from the fact that in the context of the prosecution case, the above circumstance incriminates the respondent in a large way we find that the Investigating Agency has collected other incriminating materials also against the respondent, to make out a strong prima facie case against him. It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence. We are therefore of the opinion that the High Court should not have granted bail to the respondent considering the seriousness of the allegations levelled against him, particularly at a stage when investigation is continuing.
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Ram Prasad Narayan Sahi And Another Vs. The State Of Bihar And Others | Encumbered Estates Act, though they may be given notice of those proceedings and afforded opportunity to watch those proceedings in order to see that no property is secreted from them and it is preserved for satisfaction of decrees that may eventually be passed in their favour.14. In his judgment Pathak, J. proceeded to observe that though the landlord is a party to the dispute under S. 11, it is obvious that the main party who is vitally interested in that dispute is the entire body of creditors, because the issue that arises out of such a claim is whether the property which is the subject matter of the claim is liable for the satisfaction of the debts due to the entire body of creditors. This statement also, in our opinion, is not very precise. It is not correct to say that the result of a decision in such a claim makes the property liable for satisfaction of debts due to the entire body of creditors who had made claims at that stage. The property is only liable for satisfaction of decrees that may be passed subsequently under S.14.It may well be that of the persons who have been disclosed as creditors under Section 8, a number of them may not at all be interested in the result of the decision of the claim under Section 11. It is an overstatement to make that the main party who is vitally interested in the dispute is the entire body of creditors. The dispute relates to title to property and according to all principles of impleading of parties it is not the eventual benefit that a person may derive from a certain decision that is the crucial test in deciding whether a party is a necessary party or merely a proper party.Pathak, J. proceeded to observe as follows:"Could it be suggested that in a suit under Order 21, Rule 63, C.P.C. the decree-holders who desire to seize the property belonging to the judgment debtor are not necessary parties?"With great respect again, this analogy is not very happy or apposite.Under Order 21 Rule 63, it is only the attaching creditor who has the right to file a suit or of being impleaded as defendant in a suit by the judgment-debtor. All the creditors of the judgment debtor who have not attached the property are not necessary parties in a suit under Order 21 Rule 63, though after the decision is that suit they may be entitled to share in the rateable distribution of the property if they make an application for that purpose. In a way it is true to say that in all suits by a creditor against a debtor where the debtor owes to a number of creditors, every other creditor is interested in seeing that that creditors suit is dismissed or his debt is considerably cut down; but from that it does not follow that in a suit on a promissory note by a creditor against the debtor all the other creditors are necessary parties.The eventual interest of a party in the fruits of a litigation cannot be held to be the true test of impleading parties under the Code of Civil Procedure and it is rather difficult to hold that where that is not the true test under the Code, that should be adopted as a test in proceedings of an administrative character under the U. P. Encumbered Estates Act. It cannot be forgotten that under the provisions of section 11 no provision has been made for issuing notice to all the creditors. Reference may also be made to Rule 6 framed under the Encumbered Estates Act. This rule provides that the proceedings under this Act shall be governed by the Code of Civil Procedure so far as they are applicable. As already pointed out, the provisions of Order 1, Rules 1 and 3 cannot aptly be held applicable in such proceedings.We cannot uphold the view of Pathak J., that all creditors become parties to the proceedings under the Act in the technical sense of the term after a notice has been served upon them and in any event after they have filed the written statements, that they continue to remain as parties until the debts are liquidated or proceedings terminated in accordance with the provisions of the Act. This seems to be too wide a statement of the law on the point. Can it be said that after each individual creditor obtains a decree in respect of his claim under S. 14, each one of these creditors has to be impleaded as a party in an appeal preferred by that creditor or by the debtor. It is not possible to give an answer in the affirmative to such a proposition.We have therefore no hesitation in saying that Mr. Justice Braund, though he ultimately abandoned his view, was right in thinking that in these administrative proceedings technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be invoked and that the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11, and if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either did not appear or put forward a written statement under Section 10 or took no active part in the proceedings under Section 11 (2).In the view that we have taken it is not necessary to decide the question whether the High Court was right in not exercising powers under Order 41 Rule 20 in impleading the creditors as respondents to the appeal. | 1[ds]It is no doubt true that costs are not taken into consideration and are treated as extraneous to the subject-matter of a suit, and variation in the matter of costs does not make the decree of the appellate court a decree of variance; but as already stated the appellant did not pray for the certificate on that ground. He had expressly alleged that the decree being one of affirmance he was entitled to a certificate, because the subject of the suit as well as of the appeal was a sum of over Rs. 10,000 and the case involved a substantial question of law. It is obvious that the ground on which the appeal was dismissed by the High Court raises a question of law of importance to the parties and that being so, on that ground alone the appellant was entitled to a certificate under S. 110, C. P. C. The certificate therefore is good, though the ground on which it was granted is erroneous. It is always open to an appellant to support the Certificate on grounds other than those on which it has been actually ordered to be given. The preliminary objection thereforelaw was enacted for giving relief to encumbered estates in the U. P. Section 4 provides that any landlord who is subject to or whose immoveable property or any part thereof is encumbered with private debts, may make an application in writing to the Collector of the district, stating the amount of such private debts and also of his public debts both decreed and undeterred and requesting that the provisions of this Act be applied to him. The section gives an option to the landlord who is subject to private debts to make, an application for obtaining relief under the provisions of the Act. The Collector then transmits the application to the special judge appointed under the Act.The direct consequence of the acceptance of such an application by the collector is that the creditors are deprived of their rights of proceeding against such a landlord in civil or revenue courts in respect of their debts and all attachments made in execution of decrees become null and void and no process in execution can issue after that date. The provisions of the Act are clearly detrimental to the contractual rights of the creditors and to their remedies in civil law and such a statute can by no stretch of imagination be described to have been enacted for the benefit of creditors. Section 8 of the Act confers power on the special judge of calling upon the applicant to submit to him within a period to be fixed by him in this behalf, a written statement containing full particulars respecting the public and private debts to which he is subject or with which his immoveable property is encumbered; of the nature and extent of his proprietary rights in land; of the nature and extent of his property which is liable to attachment and sale; and lastly, of the names and addresses of the creditors, so far as can be ascertained by him.It is apparent from the provisions of the Act cited above that the U. P. Encumbered Estates Act is no more, nor less than, a code for the administration of the assets of the landlord-debtor and for giving relief to him in a number of ways against the contractual rights of his creditors. It clearly deprives the creditors of any remedies that they would ordinarily have in ordinary civil courts and extinguishes the mortgages held by them. Section 11 (2) deals with claims of third parties to the property alleged by the landlord is belonging to him and the judge is required to determine whether such property is liable to attachment or sale.It isapparent that strictly speaking the provisions of these rules cannot be applied to the proceedings contemplated by the U. P. Encumbered Estates Act. These proceedings cannot be described as suits. It was conceded at the Bar that an inquiry into third party claims under Section 11 (2) cannot be described as a suit. Neither Section 8 nor Section 11 provides that the creditors have to be impleaded as parties respondents in such an objection application. As already said, the section provides that the applicant has to give information about the names of the creditors and the amounts due to them. Till the time that a decree is passed under Section 14 in favour of any of the creditors it cannot be said that any one of them is entitled to share in the property of the debtor.It is only when a claim has been made under S. 10 by a creditor and it has ripened into a decree that he is entitled to share in the assets of the landlord. But it be commits a default in submitting a written statement of the claim under Section 10, the claim stands discharged under SectionIn this particular case it is not clear whether any of the creditors except the Unao Commercial Bank had Trade a claim underIt is also not clear whether any decree under Section 14 has been passed in favour of any of the creditors. An inquiry for the determination of the quantum of the debts of the landlord can only be made after third party claims have been settled under the provisions of Section 11 (2).In view of these provisions it seems difficult to hold that the technical and strict rules as to impleading of parties can have application to proceedings under Section 11, U. P. Encumbered Estates Act. It is true that the creditors must be given notice and opportunity to say whether the landlord has secreted any property, but if they do not do so and are content with the disclosures made by the landlord they cannot be said to have any further interest in the quantum of the property which the landlord has mentioned under the provisions of section 8 in his written statement.In that situation, if a third party claims any item of property mentioned by the landlord in the written statement, the controversy at that stage lies only between the landlord and the claimant, though in the result the creditors may either be benefited or deprived of some of the assets which the landlord discloses in the application as liable to attachment and sale towards payment of decrees that may be passed in favour of the creditors.We are fully conscious of the fact that the view that we have expressed above is not in conformity with a number of decisions of the Oudh Chief Court and the Allahabad Highcreditors are allowed to prove their debts and obtain decrees from the special judge according to the provisions of and to the extent allowed by the Act and they lose all their rights on securities held by them. Coming to the application of the rests laid down by the learned Judge, it is not possible to hold that any right of relief exists in an objector under section 11 as against the creditors. It is also difficult to see how an effective decree cannot be passed as regards title to the property in the absence ofOrder 21 Rule 63, it is only the attaching creditor who has the right to file a suit or of being impleaded as defendant in a suit by the judgment-debtor. All the creditors of the judgment debtor who have not attached the property are not necessary parties in a suit under Order 21 Rule 63, though after the decision is that suit they may be entitled to share in the rateable distribution of the property if they make an application for that purpose. In a way it is true to say that in all suits by a creditor against a debtor where the debtor owes to a number of creditors, every other creditor is interested in seeing that that creditors suit is dismissed or his debt is considerably cut down; but from that it does not follow that in a suit on a promissory note by a creditor against the debtor all the other creditors are necessaryhave therefore no hesitation in saying that Mr. Justice Braund, though he ultimately abandoned his view, was right in thinking that in these administrative proceedings technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be invoked and that the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11, and if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either did not appear or put forward a written statement under Section 10 or took no active part in the proceedings under Section 11 (2).In the view that we have taken it is not necessary to decide the question whether the High Court was right in not exercising powers under Order 41 Rule 20 in impleading the creditors as respondents to the appeal. | 1 | 6,492 | 1,639 | ### Instruction:
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Encumbered Estates Act, though they may be given notice of those proceedings and afforded opportunity to watch those proceedings in order to see that no property is secreted from them and it is preserved for satisfaction of decrees that may eventually be passed in their favour.14. In his judgment Pathak, J. proceeded to observe that though the landlord is a party to the dispute under S. 11, it is obvious that the main party who is vitally interested in that dispute is the entire body of creditors, because the issue that arises out of such a claim is whether the property which is the subject matter of the claim is liable for the satisfaction of the debts due to the entire body of creditors. This statement also, in our opinion, is not very precise. It is not correct to say that the result of a decision in such a claim makes the property liable for satisfaction of debts due to the entire body of creditors who had made claims at that stage. The property is only liable for satisfaction of decrees that may be passed subsequently under S.14.It may well be that of the persons who have been disclosed as creditors under Section 8, a number of them may not at all be interested in the result of the decision of the claim under Section 11. It is an overstatement to make that the main party who is vitally interested in the dispute is the entire body of creditors. The dispute relates to title to property and according to all principles of impleading of parties it is not the eventual benefit that a person may derive from a certain decision that is the crucial test in deciding whether a party is a necessary party or merely a proper party.Pathak, J. proceeded to observe as follows:"Could it be suggested that in a suit under Order 21, Rule 63, C.P.C. the decree-holders who desire to seize the property belonging to the judgment debtor are not necessary parties?"With great respect again, this analogy is not very happy or apposite.Under Order 21 Rule 63, it is only the attaching creditor who has the right to file a suit or of being impleaded as defendant in a suit by the judgment-debtor. All the creditors of the judgment debtor who have not attached the property are not necessary parties in a suit under Order 21 Rule 63, though after the decision is that suit they may be entitled to share in the rateable distribution of the property if they make an application for that purpose. In a way it is true to say that in all suits by a creditor against a debtor where the debtor owes to a number of creditors, every other creditor is interested in seeing that that creditors suit is dismissed or his debt is considerably cut down; but from that it does not follow that in a suit on a promissory note by a creditor against the debtor all the other creditors are necessary parties.The eventual interest of a party in the fruits of a litigation cannot be held to be the true test of impleading parties under the Code of Civil Procedure and it is rather difficult to hold that where that is not the true test under the Code, that should be adopted as a test in proceedings of an administrative character under the U. P. Encumbered Estates Act. It cannot be forgotten that under the provisions of section 11 no provision has been made for issuing notice to all the creditors. Reference may also be made to Rule 6 framed under the Encumbered Estates Act. This rule provides that the proceedings under this Act shall be governed by the Code of Civil Procedure so far as they are applicable. As already pointed out, the provisions of Order 1, Rules 1 and 3 cannot aptly be held applicable in such proceedings.We cannot uphold the view of Pathak J., that all creditors become parties to the proceedings under the Act in the technical sense of the term after a notice has been served upon them and in any event after they have filed the written statements, that they continue to remain as parties until the debts are liquidated or proceedings terminated in accordance with the provisions of the Act. This seems to be too wide a statement of the law on the point. Can it be said that after each individual creditor obtains a decree in respect of his claim under S. 14, each one of these creditors has to be impleaded as a party in an appeal preferred by that creditor or by the debtor. It is not possible to give an answer in the affirmative to such a proposition.We have therefore no hesitation in saying that Mr. Justice Braund, though he ultimately abandoned his view, was right in thinking that in these administrative proceedings technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be invoked and that the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11, and if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either did not appear or put forward a written statement under Section 10 or took no active part in the proceedings under Section 11 (2).In the view that we have taken it is not necessary to decide the question whether the High Court was right in not exercising powers under Order 41 Rule 20 in impleading the creditors as respondents to the appeal.
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the contractual rights of his creditors. It clearly deprives the creditors of any remedies that they would ordinarily have in ordinary civil courts and extinguishes the mortgages held by them. Section 11 (2) deals with claims of third parties to the property alleged by the landlord is belonging to him and the judge is required to determine whether such property is liable to attachment or sale.It isapparent that strictly speaking the provisions of these rules cannot be applied to the proceedings contemplated by the U. P. Encumbered Estates Act. These proceedings cannot be described as suits. It was conceded at the Bar that an inquiry into third party claims under Section 11 (2) cannot be described as a suit. Neither Section 8 nor Section 11 provides that the creditors have to be impleaded as parties respondents in such an objection application. As already said, the section provides that the applicant has to give information about the names of the creditors and the amounts due to them. Till the time that a decree is passed under Section 14 in favour of any of the creditors it cannot be said that any one of them is entitled to share in the property of the debtor.It is only when a claim has been made under S. 10 by a creditor and it has ripened into a decree that he is entitled to share in the assets of the landlord. But it be commits a default in submitting a written statement of the claim under Section 10, the claim stands discharged under SectionIn this particular case it is not clear whether any of the creditors except the Unao Commercial Bank had Trade a claim underIt is also not clear whether any decree under Section 14 has been passed in favour of any of the creditors. An inquiry for the determination of the quantum of the debts of the landlord can only be made after third party claims have been settled under the provisions of Section 11 (2).In view of these provisions it seems difficult to hold that the technical and strict rules as to impleading of parties can have application to proceedings under Section 11, U. P. Encumbered Estates Act. It is true that the creditors must be given notice and opportunity to say whether the landlord has secreted any property, but if they do not do so and are content with the disclosures made by the landlord they cannot be said to have any further interest in the quantum of the property which the landlord has mentioned under the provisions of section 8 in his written statement.In that situation, if a third party claims any item of property mentioned by the landlord in the written statement, the controversy at that stage lies only between the landlord and the claimant, though in the result the creditors may either be benefited or deprived of some of the assets which the landlord discloses in the application as liable to attachment and sale towards payment of decrees that may be passed in favour of the creditors.We are fully conscious of the fact that the view that we have expressed above is not in conformity with a number of decisions of the Oudh Chief Court and the Allahabad Highcreditors are allowed to prove their debts and obtain decrees from the special judge according to the provisions of and to the extent allowed by the Act and they lose all their rights on securities held by them. Coming to the application of the rests laid down by the learned Judge, it is not possible to hold that any right of relief exists in an objector under section 11 as against the creditors. It is also difficult to see how an effective decree cannot be passed as regards title to the property in the absence ofOrder 21 Rule 63, it is only the attaching creditor who has the right to file a suit or of being impleaded as defendant in a suit by the judgment-debtor. All the creditors of the judgment debtor who have not attached the property are not necessary parties in a suit under Order 21 Rule 63, though after the decision is that suit they may be entitled to share in the rateable distribution of the property if they make an application for that purpose. In a way it is true to say that in all suits by a creditor against a debtor where the debtor owes to a number of creditors, every other creditor is interested in seeing that that creditors suit is dismissed or his debt is considerably cut down; but from that it does not follow that in a suit on a promissory note by a creditor against the debtor all the other creditors are necessaryhave therefore no hesitation in saying that Mr. Justice Braund, though he ultimately abandoned his view, was right in thinking that in these administrative proceedings technical rules of the First Schedule of the Code of Civil Procedure regarding impleading of parties should not be invoked and that the matter should be viewed in a more liberal way, regard always being had to the fact that there is no collusion between the debtor and the claimant and that there are persons who are bona fide litigating in respect of the title of the claimant under Section 11, and if there has been such a bona fide fight which results in a decree, in an appeal against that decree it is sufficient that those who took an active part in the proceedings under Section 11 are impleaded. It is not necessary to implead each and every creditor who either did not appear or put forward a written statement under Section 10 or took no active part in the proceedings under Section 11 (2).In the view that we have taken it is not necessary to decide the question whether the High Court was right in not exercising powers under Order 41 Rule 20 in impleading the creditors as respondents to the appeal.
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PADMINI SINGHA Vs. THE STATE OF ASSAM | Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened : Provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C) as the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such meeting: Provided further that when a non- confidence motion is lost, no such motion shall be allowed in the next six months. 9. On a plain reading of the said provision, it is crystal clear that the meeting has to be convened by the Deputy Commissioner within a stipulated time and the said authority has also been conferred the power to depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over the meeting. The said situation comes into existence after the Deputy Commissioner is informed to convene the meeting. The Division Bench has observed, placing reliance on the communication of the Deputy Commissioner that he has not really convened the meeting and that apart, he has not delegated the power or authority to the BDO to preside over the meeting. It has been further held that the BDO at the most could have presided over the meeting when the Deputy Commissioner was unable to preside over the meeting so convened by him. But as the meeting was not convened, the whole thing was illegal. 10. It may be noted that a ground has been taken in this appeal before us that the beneficiary, namely, the respondent no. 6, had attended the meeting. On a perusal of the judgment of the learned single Judge, we do not notice that any such assertion was made. The entire discussion, as we find, relates to what is meant by the Deputy Commissioner by his communication dated 17.02.2014 and further, regarding the delegation of authority to the BDO to preside over the meeting. The ultimate conclusion that has been recorded by the learned single Judge is expressed in para 22 of the judgment which reads thus:- 22. In view of the above discussions, the resolution adopted expressing no confidence against the petitioner is set aside and declared null and void. But the matter does not rest here. This Court cannot remain oblivious of the fact that a requisition for No Confidence Motion was given against the petitioner and expression of no confidence was negatived for procedural irregularities as mentioned above and, therefore, this Court will be failing in its duty in exercising power under Article 226 of the Constitution of India if this Court does not direct the petitioner to hold a meeting to decide the No Confidence Motion brought against her. 11. Interpreting Section 15 of the Act, the Division Bench opined that the Deputy Commissioner has not acted as provided under Section 15. The resolution passed on 31.03.2014 which has been brought on record as Annexure P-6 records that the respondent no. 6 was present in the meeting and signed. In such a situation, the issue that emerges for consideration is whether the ultimate resolution of the meeting could have been discarded. 12. To appreciate the said aspect, it is appropriate to reproduce the content of the resolution. It reads thus:- The meeting is presided over by Shri Kishore Baruah, BDO, Borkhola Development Block as per Assam Panchayat Act, 1994. At the outset of the meeting BDO asked the Members any opinion if they have. They replied that they want voting then by secret ballot voting is done. Ballot box is open at 1.30 p.m. After opening the Ballot Box as found 9 G.P. Members casted their votes for No-Confidence motion and 1 G.P. Member caste vote against the No- Confidence Motion. As per Assam Panchayat Act 2/3 rd (section 15) majority of the total G.P. members should caste votes either in support of No-Confidence motion or against the No-Confidence motion. In this connection 2/3 rd i.e., 7 members out of 10 members required. But after opening Ballot Box, it is found that 9 G.P. Members casted vote in favour of No-Confidence Motion and 1 G.P. Member casted vote against the No- Confidence Motion. As a result of which Rita Rani Dusad, President, Masughat G.P. lost her Presidentship and as per Act, Vice President Masughat G.P. will act and perform and function as i/c, President, Masughat G.P. for the time being. 13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of No-Confidence. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory, non-compliance would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent. | 1[ds]13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory,e would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent. | 1 | 2,388 | 274 | ### 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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Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened : Provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C) as the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such meeting: Provided further that when a non- confidence motion is lost, no such motion shall be allowed in the next six months. 9. On a plain reading of the said provision, it is crystal clear that the meeting has to be convened by the Deputy Commissioner within a stipulated time and the said authority has also been conferred the power to depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over the meeting. The said situation comes into existence after the Deputy Commissioner is informed to convene the meeting. The Division Bench has observed, placing reliance on the communication of the Deputy Commissioner that he has not really convened the meeting and that apart, he has not delegated the power or authority to the BDO to preside over the meeting. It has been further held that the BDO at the most could have presided over the meeting when the Deputy Commissioner was unable to preside over the meeting so convened by him. But as the meeting was not convened, the whole thing was illegal. 10. It may be noted that a ground has been taken in this appeal before us that the beneficiary, namely, the respondent no. 6, had attended the meeting. On a perusal of the judgment of the learned single Judge, we do not notice that any such assertion was made. The entire discussion, as we find, relates to what is meant by the Deputy Commissioner by his communication dated 17.02.2014 and further, regarding the delegation of authority to the BDO to preside over the meeting. The ultimate conclusion that has been recorded by the learned single Judge is expressed in para 22 of the judgment which reads thus:- 22. In view of the above discussions, the resolution adopted expressing no confidence against the petitioner is set aside and declared null and void. But the matter does not rest here. This Court cannot remain oblivious of the fact that a requisition for No Confidence Motion was given against the petitioner and expression of no confidence was negatived for procedural irregularities as mentioned above and, therefore, this Court will be failing in its duty in exercising power under Article 226 of the Constitution of India if this Court does not direct the petitioner to hold a meeting to decide the No Confidence Motion brought against her. 11. Interpreting Section 15 of the Act, the Division Bench opined that the Deputy Commissioner has not acted as provided under Section 15. The resolution passed on 31.03.2014 which has been brought on record as Annexure P-6 records that the respondent no. 6 was present in the meeting and signed. In such a situation, the issue that emerges for consideration is whether the ultimate resolution of the meeting could have been discarded. 12. To appreciate the said aspect, it is appropriate to reproduce the content of the resolution. It reads thus:- The meeting is presided over by Shri Kishore Baruah, BDO, Borkhola Development Block as per Assam Panchayat Act, 1994. At the outset of the meeting BDO asked the Members any opinion if they have. They replied that they want voting then by secret ballot voting is done. Ballot box is open at 1.30 p.m. After opening the Ballot Box as found 9 G.P. Members casted their votes for No-Confidence motion and 1 G.P. Member caste vote against the No- Confidence Motion. As per Assam Panchayat Act 2/3 rd (section 15) majority of the total G.P. members should caste votes either in support of No-Confidence motion or against the No-Confidence motion. In this connection 2/3 rd i.e., 7 members out of 10 members required. But after opening Ballot Box, it is found that 9 G.P. Members casted vote in favour of No-Confidence Motion and 1 G.P. Member casted vote against the No- Confidence Motion. As a result of which Rita Rani Dusad, President, Masughat G.P. lost her Presidentship and as per Act, Vice President Masughat G.P. will act and perform and function as i/c, President, Masughat G.P. for the time being. 13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of No-Confidence. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory, non-compliance would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent.
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13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory,e would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent.
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Transmission Corporation of Andhra Pradesh Ltd. & Others Vs. M/s. GMR Vemagiri Power Generation Ltd. & Another | principle on which Miss Rich relies is that formulated by Lord Denning, M.R. in Amalgamated Investment & Property Co. Ltd. v. TexasCommerce International Bank Ltd., [1982] 1 QB at p.121:‘If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it—on the faith of which each of them—to the knowledge of the other—acts and conducts their mutual affairs—they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not—or whether they were mistaken or not—or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.’(emphasis supplied)" 25. A commercial document cannot be interpreted in a manner to arrive at a complete variance with what may originally have been the intendment of the parties. Such a situation can only be contemplated when the implied term can be considered necessary to lend efficacy to the terms of the contract. If the contract is capable of interpretation on its plain meaning with regard to the true intention of the parties it will not be prudent to read implied terms on the understanding of a party, or by the court, with regard to business efficacy as observed in Satya Jain (D) thr. Lrs. & Ors. vs. Anis Ahmed Rushdie (D) thr. Lrs. & Ors., (2013) 8 SCC 131, as follows:- “33. The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results. The classic test of business efficacy was proposed by Lord Justice Bowen,L.J. in Moorcock. This test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended. But only the most limited term should then be implied–the bare minimum to achieve this goal. If the contract makes business sense without the term, the courts will not imply the same. The following passage from the opinion of Bowen, L.J. in the Moorcock (supra) sums up the position: (PD p.68)“…In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.”34. Though in an entirely different context, this court in United India Insurance Co. Ltd. v. Manubhai Dharamasinhbhai Gajera and Ors. had considered the circumstances when reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by and between the parties thereto. Certain observations in this regard expressed by Courts in some foreign jurisdictions were noticed by this court in Para 51 of the report. As the same may have application to the present case it would be useful to notice the said observations :(SCC p.434)“51. …’…”Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander, were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’ ‘’ Shirlaw v. Southern Foundries (1926) Ltd., KB p.227.’* * *“An expressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, formed part of the contract which the parties made for themselves. Trollope and Colls Ltd. v. North West Metropolitan Regl. Hospital Board, All ER p.268ab.’ ”35. The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement...” 26. The definition of natural gas in Section 2(za)(i) of the PNGRB Act, has no relevance to the present controversy as the Act was enacted with the object to oversee and regulate refining, processing, distribution and marketing of petroleum products and natural gas. Similarly, the observation made in Association of Natural Gas (supra) in context of the controversy with regard to legislative entry has no relevance to the interpretation of the PPA.27. The aforesaid discussion, therefore, leads to the inevitable conclusion that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel as natural gas only has, therefore, to be understood as being confined to natural gas only in its natural form. The respondent was well aware that RLNG was never intended to be included in the definition of natural gas as understood by the parties, notwithstanding that it may be a variant of natural gas. | 1[ds]7. The wordas defined in the agreement, had to be given its natural meaning by confining it toonly as intended by the parties. The definition could not be extended so as to include RLNG, as the parties never intended the same. There is no ambiguity in language warranting any inclusion to the definition either by implication or intention. Even if there was any ambiguity with regard to the intendment of the parties, the true intent has to be gathered from the plain meaning of the words used, read conjunctively with all surrounding circumstances and documents. Applying the common parlance test, RLNG was not synonymous withgas in thebusiness and neither interchangeable, because of the additional processes required in the latter and the resultant higher cost involved including importation, as distinct fromle at a lesser price and domestically.8. Under the PPA dated 31.03.1997, Naphtha was the primary fuel and gas was an alternate fuel. Clause 3.3 dealing with energy charge defined cost of fuel based on indigenous and importation cost. The PPA contemplated approval of the fuel supply agreement by the fuel supply committee, to ensure reasonable prices as the cost of power generation was of paramount consideration in the interest of the consumer. The cost of Naphtha being higher, the PPA came to be amended on 18.06.2003 makinggas the primaryfuel, and Naphtha an alternate fuel. If RLNG was in contemplation of the parties, and was considered to fall within the term, there would have been some discussion regarding it in the deliberations of the Commission while approving the amendments to the PPA, especially in view of the price difference. Such absence makes it manifest that the parties never intended to include RLNG in the term. The significance of the wordsin the third PPA dated 02.05.2007 cannot be lost sight of. It was necessitated in context of the realization that the parties may have resorted to other costly alternate fuels consequent to the dismantling of the administered price mechanism and the fuel supply committee.9. The fact that RLNG may have been permitted to be used for a short period of seven days from 16.04.2009 to 23.04.2009 under pressing circumstances of a power crisis, by special orders under Section 11 of the Electricity Act, 2003 or again for a short duration from 15.02.2011 to 31.05.2011 cannot be stretched to contend that RLNG was intended to be included within the term. The cost of power generated fromas Rs.1.75 per KWH while that from RLNG works out to Rs.4.63 per KWH and the financial burden for this short duration is Rs.427 crores. In March and April use of RLNG was permitted at per unit generation cost of Rs.9/compared to Rs.3/per unit with existingng to a financial burden of Rs.3.7 crores per day. These exceptions can never be construed to mean the norm to contend that use of RLNG was always in the contemplation of the parties and was intended to be included within the term. The very fact that the respondent sought permission on 07.08.2012 and 27.08.2012 to use RLNG for power generation makes it manifest that even as per its understanding, RLNG was not included within the termaccording to the intent of the parties. The appellant in its reply dated 10.09.2012 had reiterated that RLNG did not fall within the ambit of the PPA which was confined toonly citing the cost difference of power per unit also.The fact that RLNG may have been permitted to be used for a short period of seven days from 16.04.2009 to 23.04.2009 under pressing circumstances of a power crisis, by special orders under Section 11 of the Electricity Act, 2003 or again for a short duration from 15.02.2011 to 31.05.2011 cannot be stretched to contend that RLNG was intended to be included within the term. The cost of power generated fromas Rs.1.75 per KWH while that from RLNG works out to Rs.4.63 per KWH and the financial burden for this short duration is Rs.427 crores. In March and April use of RLNG was permitted at per unit generation cost of Rs.9/compared to Rs.3/per unit with existingng to a financial burden of Rs.3.7 crores per day. These exceptions can never be construed to mean the norm to contend that use of RLNG was always in the contemplation of the parties and was intended to be included within the term. The very fact that the respondent sought permission on 07.08.2012 and 27.08.2012 to use RLNG for power generation makes it manifest that even as per its understanding, RLNG was not included within the termaccording to the intent of the parties. The appellant in its reply dated 10.09.2012 had reiterated that RLNG did not fall within the ambit of the PPA which was confined toy citing the cost difference of power per unit also.A contract document had to be interpreted in accordance with the language used, with reference to the context in which it came to be prepared. A technical view of an agreement, torn out of context, cannot be taken to reinterpret the agreement and arrive at a new finding with regard to the intendment of the parties by including something which was never intended to be included, to the prejudice of a party to the contract, while giving an undue advantage to the other. A primary consideration will also be the understanding of the parties of the terms of the contract and what was intended, as reflected inter alia from their conduct. The contract being a commercial document, utmost importance had to be given to its efficacy.The deletion of the wordsafter the words, as used in the second PPA, and the replacement thereof in the third PPA by the wordsgave a much wider meaning and amplitude to the wordso as to take within its ambit RLNG also. The deletion ofin the PPA dated 18.06.2003 was of no significance as RLNG was to be delivered at the project site through the pipeline, and the cost of fuel was to be at the metering point at the project site, which would be inclusive of importation cost. Evidently there would be no separate charges by GAIL towards importation of RLNG. So long as the supplies were at GAIL prices, the appellants cannot raise objections with regard to price.13. The termas not been defined under the PPA. The definition ofin Section 2(za)(i) of the Petroleum and Natural Gas Regulatory Board Act, 2006 (hereafter referred to as the) includes both liquefiedG) and RLNG. The appellants on more than one occasion had themselves permitted use of RLNG for production of power in 2011, 2012 and 2013. It is demonstrative of the fact that RLNG was never intended to be excluded under the PPA. It was only when the respondent wrote to the appellant for operationalising the RLNG scheme, that the appellant replied on 27.03.2015 raising objection to RLNG being outside the terms of the PPA. The respondent had never sought permission from the appellant for use of RLNG by its letters dated 07.08.2012 and 27.08.2012, but merely given intimation about what was otherwise permissible under the PPA. After the dismantling of the administered price mechanism and the fuel Supply Committee, there was no requirement for consent or approval of the appellant.14. The appellant having itself permitted use of RLNG on more than one occasion, cannot contend its exclusion especially when the agreement clearly is suggestive of its inclusion. Alternately, there had been waiver on part of the appellant by having permitted its use on more than one occasion. The appellant cannot be permitted to approbate and reprobate.had been defined in Association of Natural Gas & Ors. vs. Union of India & Ors., 2004 (4) SCC 489. The plea that power generated by RLNG would be more costly and not in the interest of the consumer is belied by the fact that today the appellant is purchasing power at higher rate. The Director General, Petroleum Planning and Analysis Cell had now fixed price for marketing including pricing freedom for gas to be produced from discoveries in deepwater, ultradeepwater and high pressurehigh temperature areas for the period 01.04.2016 to 31.09.2016 at US$ 6.61/MMBTU on GCV basis. On 05.05.2016, the respondent wrote to the appellant informing that GAIL had communicated that ONGC has indicated availability of thegas in theKG basin from its deepwater fielsS1 and VA fields at the rate of 6.3$/MMBTU even which has not been acceded to, as being beyond the PPA.15. We have considered the submissions on behalf of the parties, and are not in agreement with the conclusions of the Appellate Tribunal.It is relevant to notice that at both stages of the amendment to the PPA, in the proceedings before the Commission under Section 21(5) of the Andhra Pradesh Electricity Reforms Act, 1998, the parties never referred to the availability of RLNG as fuel contemplated within the termnd the discussion was confined toHad the parties intended otherwise, or the respondent had any such inkling in mind of RLNG being a variant ofand consequently intended to be included in it, coupled with its availability as compared to, surely it would have figured in the discussion before the Commission. The absence of the same, combined with RLNG having to be imported, deletion of the importation clause in the PPA of 18.06.2003, the higher price of RLNG, leads to the inevitable conclusion that it was never in the contemplation of the parties that RLNG was to be included in the termen though it may be a variant of the same. It stands to reason that if Naphtha was removed as primary fuel because of the cost factor and made an alternate fuel in the second amendment to the PPA, the question of RLNG being included within the term ofirrespective of the cost factor, will not stand the test of reason.18. A wrong question will inevitably lead to a wrong answer. The question for consideration presently is not if RLNG is a form of, but whether the parties intended to exclude any form of gaseous fuel from the ambit of the contract except forin its natural form from the domestic market, keeping the price of gas in mind, which would ultimately set the price per unit of electricity for the consumer. The PPA is a technical commercial document. It has been drafted by persons conversant with the business. RLNG andas used in the agreement are not synonymous or interchangeable. The principle of business efficacy will also have to be kept in mind for interpreting the contract. The terms of the agreement have to be read first to understand the true scope and meaning of the same with regard to the nature of the agreement that the parties had in mind. It will not be safe to exclude any word in the same.It will not be a safe method to interpret a contract by picking out one clause of the same defining fuel, apply a technical scientific meaning to it as observed in Truetuf Safety Glass Industries (supra) and then conclude that being a form of, RLNG was intended to be impliedly included in the definition of fuel. The terms of a contract have to be given their plain meaning with regard to the intendment of the parties as to what was intended to be included and what was not intended to be included, as distinct from an express exclusion. The commercial parlance test will also have to be applied as to whether those in the business consider the two forms of gas as synonymous and interchangeable. Quite obviously the answer has to be in the negative considering the importation of RLNG, additional processes involved and the consequent higher costs involved.20. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as includedletters dated 07.08.2012 and 27.08.2012 become crucially relevant for the understanding that it was itself under no misapprehension that RLNG was never intended to be included within the definition ofgas under thecontract. In the former, the respondent wrote,await the confirmation from your good office to take it up further for obtaining necessary consent, if any, in accordance with law for use of RLNG and the resultant tariffThe latter again requested for permission to use RLNG to supplement shortfall in gas from the KGD6 Basin, requesting to acknowledge its usage. The contention of the respondent that these were only intimations and not request for permission to use RLNG stands belied from the plain language used in them. The appellant in its reply dated 10.09.2012 explicitly stated that under the agreement no other fuel exceptld be used and that RLNG was never contemplated in the definition of fuel declining to accept the spot supply agreement for RLNG supplies, citing the cost of power per unit from the same at Rs.910 in comparison to Rs.3/per unit from. It is only thereafter the respondent approached the Commission in OP No.20 of 2013. The pleadings of the respondent, as quoted hereinafter, further confirm its own understanding that RLNG was never intended to be included in the definition of fuel which was confined to9. Since the above scenario affects the generation activities of the Petitioner, the Petitioner proposed to use RLNG. In this respect, the Petitioner has already made representations to the Respondent Nos. 2 and 3 vide its letters dated 7.8.2012 and 27.8.2012 (produced as Annexures P2 and P3 respectively). In both these letters, the Petitioner appealed to the said Respondents to allow usage of RLNG and substantiated the circumstances/reasons for the said request of the petitioner.10. To the utter surprise and shock of the Petitioner, instead of acceding to the above requests of the Petitioner, the Respondent No.3 has rejected the above requested of the Petitioner vide its letter dated 10.09.2012.The sporadic use of RLNG on one or two occasions under pressing circumstances, after due orders under Section 11 of the Electricity Act, 2003, for short durations, cannot make the exception the norm to contend either that RLNG was included in the term fuel or that the appellant had agreed to its use. The question of waiver by the appellant or application of the principle of approbate and reprobate does not arise in the facts of the case.23. The present was a contract for purchase of power generated from fuel which was reasonably priced so as to keep in check the cost of power generated from the same, in the interest of the consumer. Undoubtedly, cost of fuel was a primary consideration in the mind of the appellant. The contextual background in which the PPA originally came to be made, the subsequent amendments, the understanding of the respondent of the agreement as reflected from its own communications and pleadings make it extremely relevant that a contextual interpretation be given to the question whether RLNG was ever intended to be included within the term. In the facts and circumstances of the present case, there can be no manner of doubt that the parties by their conduct and dealings right up to the institution of proceedings by the respondent before the Commission were clear in their understanding that RLNG was not to be included within the termer the PPA. The observations in Gedela Satchidananda Murthy (supra) are considered apposite in the facts of the presentA commercial document cannot be interpreted in a manner to arrive at a complete variance with what may originally have been the intendment of the parties. Such a situation can only be contemplated when the implied term can be considered necessary to lend efficacy to the terms of the contract. If the contract is capable of interpretation on its plain meaning with regard to the true intention of the parties it will not be prudent to read implied terms on the understanding of a party, or by the court, with regard to business efficacy as observed in Satya Jain (D) thr. Lrs. & Ors. vs. Anis Ahmed Rushdie (D) thr. Lrs. & Ors., (2013) 8 SCCThe definition ofin Section 2(za)(i) of the PNGRB Act, has no relevance to the present controversy as the Act was enacted with the object to oversee and regulate refining, processing, distribution and marketing of petroleum products and. Similarly, the observation made in Association of Natural Gas (supra) in context of the controversy with regard to legislative entry has no relevance to the interpretation of the PPA.27. The aforesaid discussion, therefore, leads to the inevitable conclusion that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel asonly has, therefore, to be understood as being confined tos only inits natural form. The respondent was well aware that RLNG was never intended to be included in the definition ofas understood by the parties, notwithstanding that it may be a variant of | 1 | 5,786 | 3,082 | ### 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:
principle on which Miss Rich relies is that formulated by Lord Denning, M.R. in Amalgamated Investment & Property Co. Ltd. v. TexasCommerce International Bank Ltd., [1982] 1 QB at p.121:‘If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it—on the faith of which each of them—to the knowledge of the other—acts and conducts their mutual affairs—they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not—or whether they were mistaken or not—or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.’(emphasis supplied)" 25. A commercial document cannot be interpreted in a manner to arrive at a complete variance with what may originally have been the intendment of the parties. Such a situation can only be contemplated when the implied term can be considered necessary to lend efficacy to the terms of the contract. If the contract is capable of interpretation on its plain meaning with regard to the true intention of the parties it will not be prudent to read implied terms on the understanding of a party, or by the court, with regard to business efficacy as observed in Satya Jain (D) thr. Lrs. & Ors. vs. Anis Ahmed Rushdie (D) thr. Lrs. & Ors., (2013) 8 SCC 131, as follows:- “33. The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results. The classic test of business efficacy was proposed by Lord Justice Bowen,L.J. in Moorcock. This test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended. But only the most limited term should then be implied–the bare minimum to achieve this goal. If the contract makes business sense without the term, the courts will not imply the same. The following passage from the opinion of Bowen, L.J. in the Moorcock (supra) sums up the position: (PD p.68)“…In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.”34. Though in an entirely different context, this court in United India Insurance Co. Ltd. v. Manubhai Dharamasinhbhai Gajera and Ors. had considered the circumstances when reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by and between the parties thereto. Certain observations in this regard expressed by Courts in some foreign jurisdictions were noticed by this court in Para 51 of the report. As the same may have application to the present case it would be useful to notice the said observations :(SCC p.434)“51. …’…”Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander, were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’ ‘’ Shirlaw v. Southern Foundries (1926) Ltd., KB p.227.’* * *“An expressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, formed part of the contract which the parties made for themselves. Trollope and Colls Ltd. v. North West Metropolitan Regl. Hospital Board, All ER p.268ab.’ ”35. The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement...” 26. The definition of natural gas in Section 2(za)(i) of the PNGRB Act, has no relevance to the present controversy as the Act was enacted with the object to oversee and regulate refining, processing, distribution and marketing of petroleum products and natural gas. Similarly, the observation made in Association of Natural Gas (supra) in context of the controversy with regard to legislative entry has no relevance to the interpretation of the PPA.27. The aforesaid discussion, therefore, leads to the inevitable conclusion that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel as natural gas only has, therefore, to be understood as being confined to natural gas only in its natural form. The respondent was well aware that RLNG was never intended to be included in the definition of natural gas as understood by the parties, notwithstanding that it may be a variant of natural gas.
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terms of a contract have to be given their plain meaning with regard to the intendment of the parties as to what was intended to be included and what was not intended to be included, as distinct from an express exclusion. The commercial parlance test will also have to be applied as to whether those in the business consider the two forms of gas as synonymous and interchangeable. Quite obviously the answer has to be in the negative considering the importation of RLNG, additional processes involved and the consequent higher costs involved.20. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as includedletters dated 07.08.2012 and 27.08.2012 become crucially relevant for the understanding that it was itself under no misapprehension that RLNG was never intended to be included within the definition ofgas under thecontract. In the former, the respondent wrote,await the confirmation from your good office to take it up further for obtaining necessary consent, if any, in accordance with law for use of RLNG and the resultant tariffThe latter again requested for permission to use RLNG to supplement shortfall in gas from the KGD6 Basin, requesting to acknowledge its usage. The contention of the respondent that these were only intimations and not request for permission to use RLNG stands belied from the plain language used in them. The appellant in its reply dated 10.09.2012 explicitly stated that under the agreement no other fuel exceptld be used and that RLNG was never contemplated in the definition of fuel declining to accept the spot supply agreement for RLNG supplies, citing the cost of power per unit from the same at Rs.910 in comparison to Rs.3/per unit from. It is only thereafter the respondent approached the Commission in OP No.20 of 2013. The pleadings of the respondent, as quoted hereinafter, further confirm its own understanding that RLNG was never intended to be included in the definition of fuel which was confined to9. Since the above scenario affects the generation activities of the Petitioner, the Petitioner proposed to use RLNG. In this respect, the Petitioner has already made representations to the Respondent Nos. 2 and 3 vide its letters dated 7.8.2012 and 27.8.2012 (produced as Annexures P2 and P3 respectively). In both these letters, the Petitioner appealed to the said Respondents to allow usage of RLNG and substantiated the circumstances/reasons for the said request of the petitioner.10. To the utter surprise and shock of the Petitioner, instead of acceding to the above requests of the Petitioner, the Respondent No.3 has rejected the above requested of the Petitioner vide its letter dated 10.09.2012.The sporadic use of RLNG on one or two occasions under pressing circumstances, after due orders under Section 11 of the Electricity Act, 2003, for short durations, cannot make the exception the norm to contend either that RLNG was included in the term fuel or that the appellant had agreed to its use. The question of waiver by the appellant or application of the principle of approbate and reprobate does not arise in the facts of the case.23. The present was a contract for purchase of power generated from fuel which was reasonably priced so as to keep in check the cost of power generated from the same, in the interest of the consumer. Undoubtedly, cost of fuel was a primary consideration in the mind of the appellant. The contextual background in which the PPA originally came to be made, the subsequent amendments, the understanding of the respondent of the agreement as reflected from its own communications and pleadings make it extremely relevant that a contextual interpretation be given to the question whether RLNG was ever intended to be included within the term. In the facts and circumstances of the present case, there can be no manner of doubt that the parties by their conduct and dealings right up to the institution of proceedings by the respondent before the Commission were clear in their understanding that RLNG was not to be included within the termer the PPA. The observations in Gedela Satchidananda Murthy (supra) are considered apposite in the facts of the presentA commercial document cannot be interpreted in a manner to arrive at a complete variance with what may originally have been the intendment of the parties. Such a situation can only be contemplated when the implied term can be considered necessary to lend efficacy to the terms of the contract. If the contract is capable of interpretation on its plain meaning with regard to the true intention of the parties it will not be prudent to read implied terms on the understanding of a party, or by the court, with regard to business efficacy as observed in Satya Jain (D) thr. Lrs. & Ors. vs. Anis Ahmed Rushdie (D) thr. Lrs. & Ors., (2013) 8 SCCThe definition ofin Section 2(za)(i) of the PNGRB Act, has no relevance to the present controversy as the Act was enacted with the object to oversee and regulate refining, processing, distribution and marketing of petroleum products and. Similarly, the observation made in Association of Natural Gas (supra) in context of the controversy with regard to legislative entry has no relevance to the interpretation of the PPA.27. The aforesaid discussion, therefore, leads to the inevitable conclusion that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel asonly has, therefore, to be understood as being confined tos only inits natural form. The respondent was well aware that RLNG was never intended to be included in the definition ofas understood by the parties, notwithstanding that it may be a variant of
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Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj | space at the sides" (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound."These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy, J., in Anukul Chandra v. Dacca Dt. Board, AIR 1928 Cal 485 at pp. 486, 487, after considering the relevant English decisions on the subject, summarized the English view thus :"The expression "road" or "highway" has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands."The learned Judge applied the English view to the construction of the words "public street or road" in Art. 146-A of the Limitation Act, and stated :"I am of opinion that "road" in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road."So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, ILR 37 All 9 at p. 11 : (AIR 1914 All 341 at p. 342), defined "road " so as to include the side lands. Therein it was observed :"...in our opinion all the grounds, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street.That a public street vests in a Municipality admits of no doubt, Under S. 116 (g) of the U. P. Municipalities Act, 1916 (U. P. Act II of 1916). "all public streets and the pavements, stones and other materials thereof, and also all trees. erections, materials, implements and things existing on or appertaining to such streets" vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S Sundaram Ayyar v. Municipal Council of Madura. ILR 25 Mad 635, dealt with the scope of such vesting under the Madras District Municipalities Act, 1884, The head-note therein brings out the gist of the decision, and it reads:"When a street is vested in a Municipal Council, such vesting does not, transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below, and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers."8. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the high way so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.9. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.10. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway, (2) it cannot be said that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality. | 0[ds]It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstances that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the public pathway.In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.10. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway, (2) it cannot be said that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality.The facts are not in dispute. There is a metalled road running through plot No. 3211. On either side of the metalled road there is open space and on either side of the open space there is a drain. Admittedly, public have been using the road for decades. The Municipal Board has been maintaining the road and the drains.It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstances that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the publicobservations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road.The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the high way so dedicated depends upon the extent of the user. Theare ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.9.In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights. | 0 | 2,307 | 1,079 | ### 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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space at the sides" (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound."These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy, J., in Anukul Chandra v. Dacca Dt. Board, AIR 1928 Cal 485 at pp. 486, 487, after considering the relevant English decisions on the subject, summarized the English view thus :"The expression "road" or "highway" has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands."The learned Judge applied the English view to the construction of the words "public street or road" in Art. 146-A of the Limitation Act, and stated :"I am of opinion that "road" in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road."So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, ILR 37 All 9 at p. 11 : (AIR 1914 All 341 at p. 342), defined "road " so as to include the side lands. Therein it was observed :"...in our opinion all the grounds, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street.That a public street vests in a Municipality admits of no doubt, Under S. 116 (g) of the U. P. Municipalities Act, 1916 (U. P. Act II of 1916). "all public streets and the pavements, stones and other materials thereof, and also all trees. erections, materials, implements and things existing on or appertaining to such streets" vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S Sundaram Ayyar v. Municipal Council of Madura. ILR 25 Mad 635, dealt with the scope of such vesting under the Madras District Municipalities Act, 1884, The head-note therein brings out the gist of the decision, and it reads:"When a street is vested in a Municipal Council, such vesting does not, transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below, and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers."8. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the high way so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.9. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.10. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway, (2) it cannot be said that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality.
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It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstances that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the public pathway.In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.10. If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway, (2) it cannot be said that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway, as it continues to vest in the Municipality.The facts are not in dispute. There is a metalled road running through plot No. 3211. On either side of the metalled road there is open space and on either side of the open space there is a drain. Admittedly, public have been using the road for decades. The Municipal Board has been maintaining the road and the drains.It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstances that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the publicobservations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road.The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the high way so dedicated depends upon the extent of the user. Theare ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.9.In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.
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Commissioner of Income Tax Punjab, Haryana, J and K, H.P. and Union Territory Ofcha Vs. Panipat Woollen and General Mills Company Limited Chandigarh | in excess of the reason able return as contemplated under the Act. That, in our opinion, would only amount to apportionment or distribution of the profits after they have been earned. It cannot, therefore, be said that the amount set apart for t he purpose of distribution amongst the consumers is not chargeable to tax on the ground that it represents over-charge."This case however was decided on its own facts and has no application to the facts in the instant case.Reliance was also placed by counsel for the assessee Company on a Division Bench decision of the Patna High Court in Jamshedpur Motor Accessories Stores v. Commissioner of Income-tax, Bihar &Orissa(95 I.T.R.664, 672.) where Untwalia, C.J., as he then was, observed as follows:"That position being accepted the matter as to what amount was payable to Parikh ought to have been adjudged from the assessees point of view and not from the department or Tribunals point of view. It has to he emphasised that unless there is, a limitation put by the law on the amount , of expenditure a lesser amount than the amount expended cannot be allowed merely because the assessing authority c thinks that the assessee could have managed by paying a lesser amount as a prudent businessman. - The test of prudence by substituting its own view in place of the business mans h as not been approved by the Supreme Court in the decisions referred to above."Here also the observations were confined only to the question that the test of prudence was to be determined from the point of view of the businessman. Jamshedpur Motor Accessrories Stores case(supra) was also concerned regarding the quantum of the payment of com mission and does not appear to be useful in deciding the point at in the present case.12. Some other decisions were cited at the Bar but they have no bearing on the issue and it is not necessary for us to refer to them. What is, therefore, important to us is that no decision has been cited before us which takes the view that even though under the contract of agency the selling agents who agreed to make substantial investments in the assessee Company and got interest on the loans apart from the commission they also shared profit to the extent of 50% as also loss to that extent and had complete controlling power in t he manufacturing programme or the sale of the products and yet the transaction would be one of agency simpliciter and not a joint Venture. On the facts found by the Tribunal and those mentioned in the statement of the case as discussed above leads to the inescapable conclusion that the present contract of agency really amounts to a transaction by which substantial investments had been made by the selling agents with a. view to control the manufacturing programme and the a gents had also agreed to share the profits and losses equally. This is, therefore, nothing, but a joint venture to divide the profits after the same are ascertained and cannot in any sense be deemed to be expenses incurred by the assessee Company for t he purpose of its business or for that matter for earning profits. In fact in Pondicherry Railway Co. Ltd. v. Commissioner of Income-tax, Madras(A.I.R.1931 P.C. 165, 170.), Lord Macmillan pointed out that a payment made to of profits and conditional on profits being earned cannot be legitimately described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point and the Revenue is not concerned with the subsequent application of the profits In this connection the Privy Council observed as follows."It is claimed for the company that when it makes over to the Colonial Government their half of the net profits it is making an expenditure incurred solely for the purpose of " earning its own profits. The Court below has unanimously negatived this contention and in their Lordships opinion has rightly done so. A payment out of profits and conditional on profits being, earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits. * * * But the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance Society v. Styles (1892) A.C. 309-at p. 315, is of general application unaffected by the specialities of the English tax system:......But when once an individual or a company has in that proper sense ascertained what a re the profits of his business or his trade, the destination of those profits or the charge which has been made on those profits by previous agreement or otherwise is perfectly immaterial. The tax is payable upon the profits realised and the meaning to my mind is rendered plain by the words payable out of profits.Thus in short by controlling the manufacturing programme, sharing to the extent of 50% in the net profits ascertained in the manner stipulated in the agreement and above all for sharing 50% of the losses which are to be deducted from the commission of the agents the agents become completely equated with the proprietors of the firm itself and therefore the contract of agency is really a sort of a partner ship and has been given the cloak and colour of an agency to conceal the real intent and purpose the commercial venture.In view of the decisions referred to above and the peculiar facts of the present case we are satisfied that the view taken by the Tribunal that the payments in question were not legally deductible under s. 10(2)(xv) of the Act was correct. The view taken by the High Court that the amounts in question were deductible under s. 10(2) (xv) appears to be legally erroneous cannot be upheld.13. | 1[ds]Analysing the terms of this sub-clause it would appear that the agents have been able to secure most liberal and profitable terms. To begin with they were to get a commission at the rate of one and a quarter per cent on the net proceeds of sales of all goods There can be no objection to this. Secondly, the agents will get 50% commission on the net profits of the worsted plant. The net profits would have to be ascertained after deducing all the manufacturing costs, interest, insurance etc. The conduct of the agents in sharing half of the net profits does not appear to us to be consistent with the payments made to the agents for services rendered. It is difficult to lay down any rule of universal application as to what percentage of profit would be consistent with the payment in lieu of services but taking the totality of the provisions of the agreement it seems to us that the percentage of profits and the manner in which it is to be determined is more consistent with the position of a partner than that of an Agent. Finally the provision for sharing the loss incurred by the Company and for a lump sum deduction of Rs. 50, 000/- is totally inconsistent with a contract of agencyabove sub-clause clearly provides for a separate commission ac count to be maintained by the agents and the commission to be paid every six months. Consequently the agents agreed to pay a sum of Rs. 25, 000/- for six months every half year within ten days. We might further mention here that the provision in the agreement regarding s haring of the loss is absolutely peculiar to this particular agreement and there is not a single authority, which has, in spite of such a provision, held that the transaction does not amount to a joint venture or a division of profits. The provision regarding the consent of the agents to the sales and the programme of manufacture is also pertinent in order to determine whether the transaction amountted to a joint venture in the garb of a contract of agency. It is well settled that the Court in order to construe an agreement has to look to the substance or the essence of it rather than to its form. A party cannot escape the consequences of law merely by describing an agreement in a particular form though in essence and in substance IT H may be a different transaction. In these circumstances, therefore, if we construe the agreement as a sort of a joint venture or a transaction like a partnership which has been given the form and appearance of a contract of agency , the law must have itsso w hatever be the commercial considerations, it is difficult to hold that the commercial expediency dictated the assessee Company to allow itself to be completely overshadowed by its selling agents so as to pay them not only for the services rendered but also allow them to share profits, control the manufacture of the goods and the programme thereof and also to share the losses. The test of commercial expediency cannot be reduced in the shape of a ritualistic formula, nor can it be put in a water-tight compartment so as to be confined in a strait jacket. The test merely means that the Court will place itself in the position of a businessman and find out whether the expenses incurred could be said to have been laid out for the purpose of the business or the transaction was merely a subterfuge for the purpose of sharing or dividing the profits ascertained in a particular manner. It seems to us that in ultimate analysis the matter would . depend on the intention of the parties as spelt out from the terms of - the agreement or the surrounding circumstances, the nature or character of the trade or venture, the purpose for which the expenses are incurred and the object which is sought to be achieved for incurring those expenses. If the expenses incurred amount to a profit of an enduring nature they may be treated as capital expenditure, whereas if the expenses merely serve to promote or increase the commercial activity they may amount to an expenditure which is incurred for the purpose of thelearned counsel for the assessee Company relied on the aforesaid case because the question whether the transaction amounted to a joint venture appears to have been raised but it appears that this point had been given up when the case was sent on remand and was therefore not decided. In these circumstances, the decision in the aforesaid case does not appear to be of any assistance to the assesseeother decisions were cited at the Bar but they have no bearing on the issue and it is not necessary for us to refer to them. What is, therefore, important to us is that no decision has been cited before us which takes the view that even though under the contract of agency the selling agents who agreed to make substantial investments in the assessee Company and got interest on the loans apart from the commission they also shared profit to the extent of 50% as also loss to that extent and had complete controlling power in t he manufacturing programme or the sale of the products and yet the transaction would be one of agency simpliciter and not a joint Venture. On the facts found by the Tribunal and those mentioned in the statement of the case as discussed above leads to the inescapable conclusion that the present contract of agency really amounts to a transaction by which substantial investments had been made by the selling agents with a. view to control the manufacturing programme and the a gents had also agreed to share the profits and losses equally. This is, therefore, nothing, but a joint venture to divide the profits after the same are ascertained and cannot in any sense be deemed to be expenses incurred by the assessee Company for t he purpose of its business or for that matter for earningin short by controlling the manufacturing programme, sharing to the extent of 50% in the net profits ascertained in the manner stipulated in the agreement and above all for sharing 50% of the losses which are to be deducted from the commission of the agents the agents become completely equated with the proprietors of the firm itself and therefore the contract of agency is really a sort of a partner ship and has been given the cloak and colour of an agency to conceal the real intent and purpose the commercial venture.In view of the decisions referred to above and the peculiar facts of the present case we are satisfied that the view taken by the Tribunal that the payments in question were not legally deductible under s. 10(2)(xv) of the Act was correct. The view taken by the High Court that the amounts in question were deductible under s. 10(2) (xv) appears to be legally erroneous cannot be upheld. | 1 | 7,367 | 1,252 | ### 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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in excess of the reason able return as contemplated under the Act. That, in our opinion, would only amount to apportionment or distribution of the profits after they have been earned. It cannot, therefore, be said that the amount set apart for t he purpose of distribution amongst the consumers is not chargeable to tax on the ground that it represents over-charge."This case however was decided on its own facts and has no application to the facts in the instant case.Reliance was also placed by counsel for the assessee Company on a Division Bench decision of the Patna High Court in Jamshedpur Motor Accessories Stores v. Commissioner of Income-tax, Bihar &Orissa(95 I.T.R.664, 672.) where Untwalia, C.J., as he then was, observed as follows:"That position being accepted the matter as to what amount was payable to Parikh ought to have been adjudged from the assessees point of view and not from the department or Tribunals point of view. It has to he emphasised that unless there is, a limitation put by the law on the amount , of expenditure a lesser amount than the amount expended cannot be allowed merely because the assessing authority c thinks that the assessee could have managed by paying a lesser amount as a prudent businessman. - The test of prudence by substituting its own view in place of the business mans h as not been approved by the Supreme Court in the decisions referred to above."Here also the observations were confined only to the question that the test of prudence was to be determined from the point of view of the businessman. Jamshedpur Motor Accessrories Stores case(supra) was also concerned regarding the quantum of the payment of com mission and does not appear to be useful in deciding the point at in the present case.12. Some other decisions were cited at the Bar but they have no bearing on the issue and it is not necessary for us to refer to them. What is, therefore, important to us is that no decision has been cited before us which takes the view that even though under the contract of agency the selling agents who agreed to make substantial investments in the assessee Company and got interest on the loans apart from the commission they also shared profit to the extent of 50% as also loss to that extent and had complete controlling power in t he manufacturing programme or the sale of the products and yet the transaction would be one of agency simpliciter and not a joint Venture. On the facts found by the Tribunal and those mentioned in the statement of the case as discussed above leads to the inescapable conclusion that the present contract of agency really amounts to a transaction by which substantial investments had been made by the selling agents with a. view to control the manufacturing programme and the a gents had also agreed to share the profits and losses equally. This is, therefore, nothing, but a joint venture to divide the profits after the same are ascertained and cannot in any sense be deemed to be expenses incurred by the assessee Company for t he purpose of its business or for that matter for earning profits. In fact in Pondicherry Railway Co. Ltd. v. Commissioner of Income-tax, Madras(A.I.R.1931 P.C. 165, 170.), Lord Macmillan pointed out that a payment made to of profits and conditional on profits being earned cannot be legitimately described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point and the Revenue is not concerned with the subsequent application of the profits In this connection the Privy Council observed as follows."It is claimed for the company that when it makes over to the Colonial Government their half of the net profits it is making an expenditure incurred solely for the purpose of " earning its own profits. The Court below has unanimously negatived this contention and in their Lordships opinion has rightly done so. A payment out of profits and conditional on profits being, earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits. * * * But the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance Society v. Styles (1892) A.C. 309-at p. 315, is of general application unaffected by the specialities of the English tax system:......But when once an individual or a company has in that proper sense ascertained what a re the profits of his business or his trade, the destination of those profits or the charge which has been made on those profits by previous agreement or otherwise is perfectly immaterial. The tax is payable upon the profits realised and the meaning to my mind is rendered plain by the words payable out of profits.Thus in short by controlling the manufacturing programme, sharing to the extent of 50% in the net profits ascertained in the manner stipulated in the agreement and above all for sharing 50% of the losses which are to be deducted from the commission of the agents the agents become completely equated with the proprietors of the firm itself and therefore the contract of agency is really a sort of a partner ship and has been given the cloak and colour of an agency to conceal the real intent and purpose the commercial venture.In view of the decisions referred to above and the peculiar facts of the present case we are satisfied that the view taken by the Tribunal that the payments in question were not legally deductible under s. 10(2)(xv) of the Act was correct. The view taken by the High Court that the amounts in question were deductible under s. 10(2) (xv) appears to be legally erroneous cannot be upheld.13.
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partner than that of an Agent. Finally the provision for sharing the loss incurred by the Company and for a lump sum deduction of Rs. 50, 000/- is totally inconsistent with a contract of agencyabove sub-clause clearly provides for a separate commission ac count to be maintained by the agents and the commission to be paid every six months. Consequently the agents agreed to pay a sum of Rs. 25, 000/- for six months every half year within ten days. We might further mention here that the provision in the agreement regarding s haring of the loss is absolutely peculiar to this particular agreement and there is not a single authority, which has, in spite of such a provision, held that the transaction does not amount to a joint venture or a division of profits. The provision regarding the consent of the agents to the sales and the programme of manufacture is also pertinent in order to determine whether the transaction amountted to a joint venture in the garb of a contract of agency. It is well settled that the Court in order to construe an agreement has to look to the substance or the essence of it rather than to its form. A party cannot escape the consequences of law merely by describing an agreement in a particular form though in essence and in substance IT H may be a different transaction. In these circumstances, therefore, if we construe the agreement as a sort of a joint venture or a transaction like a partnership which has been given the form and appearance of a contract of agency , the law must have itsso w hatever be the commercial considerations, it is difficult to hold that the commercial expediency dictated the assessee Company to allow itself to be completely overshadowed by its selling agents so as to pay them not only for the services rendered but also allow them to share profits, control the manufacture of the goods and the programme thereof and also to share the losses. The test of commercial expediency cannot be reduced in the shape of a ritualistic formula, nor can it be put in a water-tight compartment so as to be confined in a strait jacket. The test merely means that the Court will place itself in the position of a businessman and find out whether the expenses incurred could be said to have been laid out for the purpose of the business or the transaction was merely a subterfuge for the purpose of sharing or dividing the profits ascertained in a particular manner. It seems to us that in ultimate analysis the matter would . depend on the intention of the parties as spelt out from the terms of - the agreement or the surrounding circumstances, the nature or character of the trade or venture, the purpose for which the expenses are incurred and the object which is sought to be achieved for incurring those expenses. If the expenses incurred amount to a profit of an enduring nature they may be treated as capital expenditure, whereas if the expenses merely serve to promote or increase the commercial activity they may amount to an expenditure which is incurred for the purpose of thelearned counsel for the assessee Company relied on the aforesaid case because the question whether the transaction amounted to a joint venture appears to have been raised but it appears that this point had been given up when the case was sent on remand and was therefore not decided. In these circumstances, the decision in the aforesaid case does not appear to be of any assistance to the assesseeother decisions were cited at the Bar but they have no bearing on the issue and it is not necessary for us to refer to them. What is, therefore, important to us is that no decision has been cited before us which takes the view that even though under the contract of agency the selling agents who agreed to make substantial investments in the assessee Company and got interest on the loans apart from the commission they also shared profit to the extent of 50% as also loss to that extent and had complete controlling power in t he manufacturing programme or the sale of the products and yet the transaction would be one of agency simpliciter and not a joint Venture. On the facts found by the Tribunal and those mentioned in the statement of the case as discussed above leads to the inescapable conclusion that the present contract of agency really amounts to a transaction by which substantial investments had been made by the selling agents with a. view to control the manufacturing programme and the a gents had also agreed to share the profits and losses equally. This is, therefore, nothing, but a joint venture to divide the profits after the same are ascertained and cannot in any sense be deemed to be expenses incurred by the assessee Company for t he purpose of its business or for that matter for earningin short by controlling the manufacturing programme, sharing to the extent of 50% in the net profits ascertained in the manner stipulated in the agreement and above all for sharing 50% of the losses which are to be deducted from the commission of the agents the agents become completely equated with the proprietors of the firm itself and therefore the contract of agency is really a sort of a partner ship and has been given the cloak and colour of an agency to conceal the real intent and purpose the commercial venture.In view of the decisions referred to above and the peculiar facts of the present case we are satisfied that the view taken by the Tribunal that the payments in question were not legally deductible under s. 10(2)(xv) of the Act was correct. The view taken by the High Court that the amounts in question were deductible under s. 10(2) (xv) appears to be legally erroneous cannot be upheld.
|
J. Fernandes & Co Vs. The Deputy Chief Controller Of Imports & Exports And Ors | regulations for the peace, progress and good Government of the Union Territory. In the present case no Presidential Regulation was relied on by either side.24. Parliament has power under Article 246 (4) to make laws with respect to any Union Territory. The executive power of the Union under Article 73 (1) (a) shall extend to the matters with respect to which Parliament has power to make laws.The Union Government has, therefore, power to issue executive directions to the Administrator of a Union Territory. So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation made under Art. 240, the Administrator of a Union Territory is bound to carry out the orders and directions given by the Central Government. The decision of this Court in Shamsher Singh v. State of Punjab. AIR 1974 SC 2192 is that the powers conferred on the President by Article 239 are to be exercised by him on the aid and advice of the Cabinet. Therefore, the directions issued by the Central Government are valid because of the combined effect of Article 73 and Article 246 which confer power on the Union executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws.25. In the present case, the Chief Civil Administrator himself declared in a Press Note dated 2 April 1962 the terms and conditions subject to which import licence would be granted. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to the Press Note and contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period. If the licence itself was defective, there could not be any validation of the licence as was contended for by the petitioner.26. There is no particular statute or Portuguese law which confers any right on the petitioner to get an import licence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive powers under Article 73 (1) of the Constitution.27. The petitioner contended that the original concern was an importer registered with the Junta prior to December, 1961. The respondents denied that allegation. The petitioner in the rejoinder alleged that it is to be presumed that the original importer must have, been registered with the Junta, prior to the liberation. No materials were shown to establish that the original concern was a regular registered importer. The contention on behalf of the respondents that the licence was issued without following the regular procedure and by inadvertence or mistake is borne by the facts and circumstances of the code particularly because the Chief Civil Administrator had no authority to issue any import licences in contravention of the directions of the Central Government issued on 3 January, 1962.28. The petitioner relied on the decision of this Court in M/s. Andhra Industrial Works v. Chief Controller of Imports AIR 1974 SC 1539 , in support of the proposition appearing at page 1542 of the Report. The proposition stated there is that one of the instances in relation to laws regulating the citizens right to carry on trade or business guaranteed by Article 19 (1) (g) may be catalogued as where the impugned action is based on a misconstruction of the intra vires statute or is so contrary to the established procedure or rules of natural Justice that it results in violation of a fundamental right. In the case of M/s. Andhra industrial Works (supra) the proposition which was extracted from Ujjambais case, (1963) 1 SCR 778 = (AIR 1962 SC 1621 ) supra) is that an order of assessment made by an authority under a taxing statute which is intra vires, cannot be challenged under Article 32 as repugnant to Article 19 (1) (g) on the sole ground that it a based on a misconstruction of a provision of the Act or of a notification issued thereunder. In Ujjambais case supra) it was said that when assessment proceedings are repugnant to rules of natural justice there is an infringement of the right guaranteed under Article 19 (1) (f) and 19 (1) (g). In support of that proposition reference was made to Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, (1961) 1 SCR 379 = (AIR 1961 SC 65 ), K. T. Moopil Nair v. State of Kerala, 1961) 3 SCR 77 = (AIR 1961 SC 552 ). and Madanlal Arora v. Excise and Taxation Officer, (1962) 1 SCR 823 = (AIR 1961 SC 1565 ).29. In the case. of Andhra Industrial Works, AIR 1974 SC 1539 (supra) an objection was raised on behalf of the respondents that the petition was not competent because there was no violation of fundamental rights. This Court upheld that objection and said that neither the Imports and Exports (Control) Act nor any order thereunder was alleged to be ultra vires nor was the Import Control Policy impeached.A policy statement was held to be not a statutory document, No Person can on the of basis of a policy statement claim a right to the grant of an import licence. This Court also held that there is no absolute right much less a fundamental right, to the grant of an import licence.30. This Court in Deputy Asst. Iron and Steel Controller v. L. Manickchand, (1972) 3 SCR 1 =(AIR 1972 SC 935 ) held that no one has any vested right to an import licence in terms of the policy in force at the time of his application There is no misconstruction of any statutory provision in the present case. In the present case it cannot be said that there is no authority of law to reject an application for import licence. | 0[ds]14. The contention of the petitioner that six traders have been granted licences whereas the petitioner was not, and, there was violation under Article 14 is unacceptable. These six licences were issued before liberation between the period 12 February, 1961 and 4 December, 1961. The six licences were issued prior to the liberation of Goa. The liberation of Goa was on 19-12-1961. On 20 December, 1961 Goa became a Union Territory. The licence on which the petitioner bases the claim was dated 12 February 1962.Thepetitioner was notadmittedly issued any licence before the liberation of Goa. Between the liberation of Goa and the application of the petitioner for licence, the Government of India issued on 3 January, 1962 to the Chief Civil Administrator, Goa certain directions regarding the issue of import licence.The original concern had not opened letter of credit before 18 December, 1961 and the goods in question were not shipped prior to 20 December, 1961. The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the Government of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961.The classification of persons with reference to the grant of import licence depending on whether it was granted before the liberation or after the liberation of Goa is a valid classification based on intelligible differentia having a rational nexus with the object of import licence policy. There is no violation of Article 14. The petitioner stands on a different footing and does not belong to the class of persons who were given import licences during the Portuguese Rule before the liberation of Goa.The petitioner cannot draw any sustenance either from Section 7 of the Ordinance or Section 9 of the Act for three reasons. First the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in contravention of lawful direction given by the Government of India. The licence was not issued in good faith or in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu. Second, the validation was not intended to protect breaches of directions issued by the newIn the present case, the Chief Civil Administrator himself declared in a Press Note dated 2 April 1962 the terms and conditions subject to which import licence would be granted. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to the Press Note and contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period. If the licence itself was defective, there could not be any validation of the licence as was contended for by the petitioner.26. There is no particular statute or Portuguese law which confers any right on the petitioner to get an import licence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive powers under Article 73 (1) of thepetitioner in the rejoinder alleged that it is to be presumed that the original importer must have, been registered with the Junta, prior to the liberation. No materials were shown to establish that the original concern was a regular registered importer.This Court in Deputy Asst. Iron and Steel Controller v. L. Manickchand, (1972) 3 SCR 1 =(AIR 1972 SC 935 ) held that no one has any vested right to an import licence in terms of the policy in force at the time of his application There is no misconstruction of any statutory provision in the present case. In the present case it cannot be said that there is no authority of law to reject an application for import licence. | 0 | 4,223 | 745 | ### Instruction:
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regulations for the peace, progress and good Government of the Union Territory. In the present case no Presidential Regulation was relied on by either side.24. Parliament has power under Article 246 (4) to make laws with respect to any Union Territory. The executive power of the Union under Article 73 (1) (a) shall extend to the matters with respect to which Parliament has power to make laws.The Union Government has, therefore, power to issue executive directions to the Administrator of a Union Territory. So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation made under Art. 240, the Administrator of a Union Territory is bound to carry out the orders and directions given by the Central Government. The decision of this Court in Shamsher Singh v. State of Punjab. AIR 1974 SC 2192 is that the powers conferred on the President by Article 239 are to be exercised by him on the aid and advice of the Cabinet. Therefore, the directions issued by the Central Government are valid because of the combined effect of Article 73 and Article 246 which confer power on the Union executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws.25. In the present case, the Chief Civil Administrator himself declared in a Press Note dated 2 April 1962 the terms and conditions subject to which import licence would be granted. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to the Press Note and contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period. If the licence itself was defective, there could not be any validation of the licence as was contended for by the petitioner.26. There is no particular statute or Portuguese law which confers any right on the petitioner to get an import licence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive powers under Article 73 (1) of the Constitution.27. The petitioner contended that the original concern was an importer registered with the Junta prior to December, 1961. The respondents denied that allegation. The petitioner in the rejoinder alleged that it is to be presumed that the original importer must have, been registered with the Junta, prior to the liberation. No materials were shown to establish that the original concern was a regular registered importer. The contention on behalf of the respondents that the licence was issued without following the regular procedure and by inadvertence or mistake is borne by the facts and circumstances of the code particularly because the Chief Civil Administrator had no authority to issue any import licences in contravention of the directions of the Central Government issued on 3 January, 1962.28. The petitioner relied on the decision of this Court in M/s. Andhra Industrial Works v. Chief Controller of Imports AIR 1974 SC 1539 , in support of the proposition appearing at page 1542 of the Report. The proposition stated there is that one of the instances in relation to laws regulating the citizens right to carry on trade or business guaranteed by Article 19 (1) (g) may be catalogued as where the impugned action is based on a misconstruction of the intra vires statute or is so contrary to the established procedure or rules of natural Justice that it results in violation of a fundamental right. In the case of M/s. Andhra industrial Works (supra) the proposition which was extracted from Ujjambais case, (1963) 1 SCR 778 = (AIR 1962 SC 1621 ) supra) is that an order of assessment made by an authority under a taxing statute which is intra vires, cannot be challenged under Article 32 as repugnant to Article 19 (1) (g) on the sole ground that it a based on a misconstruction of a provision of the Act or of a notification issued thereunder. In Ujjambais case supra) it was said that when assessment proceedings are repugnant to rules of natural justice there is an infringement of the right guaranteed under Article 19 (1) (f) and 19 (1) (g). In support of that proposition reference was made to Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, (1961) 1 SCR 379 = (AIR 1961 SC 65 ), K. T. Moopil Nair v. State of Kerala, 1961) 3 SCR 77 = (AIR 1961 SC 552 ). and Madanlal Arora v. Excise and Taxation Officer, (1962) 1 SCR 823 = (AIR 1961 SC 1565 ).29. In the case. of Andhra Industrial Works, AIR 1974 SC 1539 (supra) an objection was raised on behalf of the respondents that the petition was not competent because there was no violation of fundamental rights. This Court upheld that objection and said that neither the Imports and Exports (Control) Act nor any order thereunder was alleged to be ultra vires nor was the Import Control Policy impeached.A policy statement was held to be not a statutory document, No Person can on the of basis of a policy statement claim a right to the grant of an import licence. This Court also held that there is no absolute right much less a fundamental right, to the grant of an import licence.30. This Court in Deputy Asst. Iron and Steel Controller v. L. Manickchand, (1972) 3 SCR 1 =(AIR 1972 SC 935 ) held that no one has any vested right to an import licence in terms of the policy in force at the time of his application There is no misconstruction of any statutory provision in the present case. In the present case it cannot be said that there is no authority of law to reject an application for import licence.
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14. The contention of the petitioner that six traders have been granted licences whereas the petitioner was not, and, there was violation under Article 14 is unacceptable. These six licences were issued before liberation between the period 12 February, 1961 and 4 December, 1961. The six licences were issued prior to the liberation of Goa. The liberation of Goa was on 19-12-1961. On 20 December, 1961 Goa became a Union Territory. The licence on which the petitioner bases the claim was dated 12 February 1962.Thepetitioner was notadmittedly issued any licence before the liberation of Goa. Between the liberation of Goa and the application of the petitioner for licence, the Government of India issued on 3 January, 1962 to the Chief Civil Administrator, Goa certain directions regarding the issue of import licence.The original concern had not opened letter of credit before 18 December, 1961 and the goods in question were not shipped prior to 20 December, 1961. The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the Government of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961.The classification of persons with reference to the grant of import licence depending on whether it was granted before the liberation or after the liberation of Goa is a valid classification based on intelligible differentia having a rational nexus with the object of import licence policy. There is no violation of Article 14. The petitioner stands on a different footing and does not belong to the class of persons who were given import licences during the Portuguese Rule before the liberation of Goa.The petitioner cannot draw any sustenance either from Section 7 of the Ordinance or Section 9 of the Act for three reasons. First the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in contravention of lawful direction given by the Government of India. The licence was not issued in good faith or in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu. Second, the validation was not intended to protect breaches of directions issued by the newIn the present case, the Chief Civil Administrator himself declared in a Press Note dated 2 April 1962 the terms and conditions subject to which import licence would be granted. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to the Press Note and contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period. If the licence itself was defective, there could not be any validation of the licence as was contended for by the petitioner.26. There is no particular statute or Portuguese law which confers any right on the petitioner to get an import licence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive powers under Article 73 (1) of thepetitioner in the rejoinder alleged that it is to be presumed that the original importer must have, been registered with the Junta, prior to the liberation. No materials were shown to establish that the original concern was a regular registered importer.This Court in Deputy Asst. Iron and Steel Controller v. L. Manickchand, (1972) 3 SCR 1 =(AIR 1972 SC 935 ) held that no one has any vested right to an import licence in terms of the policy in force at the time of his application There is no misconstruction of any statutory provision in the present case. In the present case it cannot be said that there is no authority of law to reject an application for import licence.
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Rambaran Prosad Vs. Ram Mohit Hazra & Ors | for possession of a site defined by boundaries, alleging notice to the proprietor requiring that site and that they had taken possession, but been dispossessed. It was held by the Judicial Committee that the suit must fail. The Judicial Committee was of the opinion that the agreement conferred on the society no present estate or interest in the site, and was unenforceable as a covenant, since it did not run with the land, and infringed the rule against perpetuity. Lord Buckmaster who pronounced the opinion of the Judicial Committee observed as follows:"Further, if the case be regarded in another light - namely, an agreement to grant in the future whatever land might be selected as a site for a temple - as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in praesenti, but would vest at the expiration of an indefinite time which might extend beyond the expiration of the proper period." 11. But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not of itself, create any interest in or charge on such property". Section 40 of the Act is also important and reads as follows :"40. Where, for the more beneficial enjoyment of his own immovable property,; third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands. The second paragraph S. 40 taken with the illustration establishes two propositions (1) that a contract for sale does not create any interest in the land, but is annexed to the ownership of the land, and (2) that the obligation can be enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice. Section 14 of the Act states as follows:"14. No transfer of property can operate to create an interest which is to take effect after the, lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong." Reading S. 14 along with S. 54 of the Transfer of Property Act it is manifest that a mere contract for sale of immoveable property does not create any interest in the immoveable property and it, therefore. follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even thought there is no time limit within which the option has to be exercised. It is true that the second paragraph of S. 40 of the Transfer of Property Act makes a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promissory either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under S. 40 of the Act which arises out of the contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law, in that both these rights are liable to be defeated by a purchaser for value without notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of premption because S. 40 of the statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land. 12. We are accordingly of the opinion that the covenant for pre-emption in this case does not offend the rule against perpetuities and cannot be considered to be void in law. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Ali Hossain Miya v, Raj Kumar Haldar, ILR (1943) 2 Cal 605: (AIR 1943 Cal 417 ) (FB), of the ,Allahabad High Court in Auad Ali v. Ali Athar, ILR 49 All 527: (AIR 1927 All 170 ) (FB), and of the Madras High Court in Chinna Munuswami Nayudu v. Sagalaguna Nayudu, ILR 49 Mad 387 : (AIR 1926 Mad 699 ). Mr. Bishen Narain relied on the decision of the Calcutta High Court in Nobin Chandra Soot v. Nabab Ali Sarkar, (1001) 5 Cal WN 343, and the Judgment of the Allahabad High Court in Gopi Ram v. Jeot Ram, ILR 45 All 478: (AIR 1923 All 514). For the reasons we have already stated we hold that the later decisions in ILR (1943), 2 Cal 605 : (AIR 1943 Cal 417 ) (FB) supra. in 11, R49 Mad 387 : (AIR 1926 Mad 699 ), supra and in ILR 49 AII 527 (AIR 1927 All 170 ) (FB), supra, correctly state the law on the point. | 1[ds]We are unable to accept this submission as correct. It is true that then clause does not expressly state that it is binding upon the assignees or, but , having regard to the context and the circumstances in which the award was made, it is manifest that then clause must be construed as binding upon the assignees ort of the original contracting partiesIn substance these statutory provisions lay down that, subject to certain exceptions which are not material in this case a contract in the absence of a contrary intention express or implied will be enforceable by and against the parties and their legal heirs and legal representatives including assignees and transferees.In the present case, there is nothing in the language of theIt is obvious that in these clauses the expression "parties" cannot be restricted to the original parties to the contract but must include the legal representatives and assignees of the original parties. There is hence no reason why the same expression should be given a restricted meaning in then clause, which is the subject matter of interpretation in the present appeal. On behalf of the respondents Mr. N. C. Chatterji rightly argued that the preparation clause was based upon the ground of vicinage and this circumstance would also suggest that the intention of the parties was that then clause should be binding upon the heirs andt and the assignees of the original parties to the Contract We accordingly hold that Mr. Bishen Narain on behalf of the appellant is unable to make good his submissions on this aspect of the case7. "A perpetuity", as defined by Lewis in hisn book on "Perpetuities" (p. 164), is a future limitation, whether executory or by way of remainder, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests. The rule as formulated falls within the branch of the law of property and its true object is to restrain the creation of future conditional interest in property. The rule against perpetuities is not concerned with contract as such or with contractual rights and obligations as such. Thus a contract to pay money to a person, his heirs or legal representatives upon a future contingency, which may happen beyond the period prescribed would be perfectly valid (Walsh v. Secretary of State for India), (1863) 10 HLC 367: 11 ER 1068. It is , therefore , well established that the rule of perpetuity concerns rights of property only and does not affect the making of contracts which do not create rights of property8. The rule does not therefore apply to personal contracts which do not create interest in property (See the decision of the Court of Appeal in SouthEastern Railway Co. v. Associated Portland Cement Manufacturers Ltd.),1 Ch12,even though the contract may have reference to land11. But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not of itself, create any interest in or charge on such property"Reading S. 14 along with S. 54 of the Transfer of Property Act it is manifest that a mere contract for sale of immoveable property does not create any interest in the immoveable property and it, therefore. follows that the rule of perpetuity cannot be applied to a covenant ofn even thought there is no time limit within which the option has to be exercised. It is true that the second paragraph of S. 40 of the Transfer of Property Act makes a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promissory either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under S. 40 of the Act which arises out of the contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law, in that both these rights are liable to be defeated by a purchaser for value without notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of premption because S. 40 of the statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land12. We are accordingly of the opinion that the covenant forn in this case does not offend the rule against perpetuities and cannot be considered to be void in law. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Ali Hossain Miya v, Raj Kumar Haldar, ILR (1943) 2 Cal 605: (AIR 1943 Cal 417 ) (FB), of the ,Allahabad High Court in Auad Ali v. Ali Athar, ILR 49 All 527: (AIR 1927 All 170 ) (FB), and of the Madras High Court in Chinna Munuswami Nayudu v. Sagalaguna Nayudu, ILR 49 Mad 387 : (AIR 1926 Mad 699 ). Mr. Bishen Narain relied on the decision of the Calcutta High Court in Nobin Chandra Soot v. Nabab Ali Sarkar, (1001) 5 Cal WN 343, and the Judgment of the Allahabad High Court in Gopi Ram v. Jeot Ram, ILR 45 All 478: (AIR 1923 All 514). For the reasons we have already stated we hold that the later decisions in ILR (1943), 2 Cal 605 : (AIR 1943 Cal 417 ) (FB) supra. in 11, R49 Mad 387 : (AIR 1926 Mad 699 ), supra and in ILR 49 AII 527 (AIR 1927 All 170 ) (FB), supra, correctly state the law on the point. | 1 | 4,320 | 1,151 | ### 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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for possession of a site defined by boundaries, alleging notice to the proprietor requiring that site and that they had taken possession, but been dispossessed. It was held by the Judicial Committee that the suit must fail. The Judicial Committee was of the opinion that the agreement conferred on the society no present estate or interest in the site, and was unenforceable as a covenant, since it did not run with the land, and infringed the rule against perpetuity. Lord Buckmaster who pronounced the opinion of the Judicial Committee observed as follows:"Further, if the case be regarded in another light - namely, an agreement to grant in the future whatever land might be selected as a site for a temple - as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in praesenti, but would vest at the expiration of an indefinite time which might extend beyond the expiration of the proper period." 11. But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not of itself, create any interest in or charge on such property". Section 40 of the Act is also important and reads as follows :"40. Where, for the more beneficial enjoyment of his own immovable property,; third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands. The second paragraph S. 40 taken with the illustration establishes two propositions (1) that a contract for sale does not create any interest in the land, but is annexed to the ownership of the land, and (2) that the obligation can be enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice. Section 14 of the Act states as follows:"14. No transfer of property can operate to create an interest which is to take effect after the, lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong." Reading S. 14 along with S. 54 of the Transfer of Property Act it is manifest that a mere contract for sale of immoveable property does not create any interest in the immoveable property and it, therefore. follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even thought there is no time limit within which the option has to be exercised. It is true that the second paragraph of S. 40 of the Transfer of Property Act makes a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promissory either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under S. 40 of the Act which arises out of the contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law, in that both these rights are liable to be defeated by a purchaser for value without notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of premption because S. 40 of the statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land. 12. We are accordingly of the opinion that the covenant for pre-emption in this case does not offend the rule against perpetuities and cannot be considered to be void in law. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Ali Hossain Miya v, Raj Kumar Haldar, ILR (1943) 2 Cal 605: (AIR 1943 Cal 417 ) (FB), of the ,Allahabad High Court in Auad Ali v. Ali Athar, ILR 49 All 527: (AIR 1927 All 170 ) (FB), and of the Madras High Court in Chinna Munuswami Nayudu v. Sagalaguna Nayudu, ILR 49 Mad 387 : (AIR 1926 Mad 699 ). Mr. Bishen Narain relied on the decision of the Calcutta High Court in Nobin Chandra Soot v. Nabab Ali Sarkar, (1001) 5 Cal WN 343, and the Judgment of the Allahabad High Court in Gopi Ram v. Jeot Ram, ILR 45 All 478: (AIR 1923 All 514). For the reasons we have already stated we hold that the later decisions in ILR (1943), 2 Cal 605 : (AIR 1943 Cal 417 ) (FB) supra. in 11, R49 Mad 387 : (AIR 1926 Mad 699 ), supra and in ILR 49 AII 527 (AIR 1927 All 170 ) (FB), supra, correctly state the law on the point.
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then clause must be construed as binding upon the assignees ort of the original contracting partiesIn substance these statutory provisions lay down that, subject to certain exceptions which are not material in this case a contract in the absence of a contrary intention express or implied will be enforceable by and against the parties and their legal heirs and legal representatives including assignees and transferees.In the present case, there is nothing in the language of theIt is obvious that in these clauses the expression "parties" cannot be restricted to the original parties to the contract but must include the legal representatives and assignees of the original parties. There is hence no reason why the same expression should be given a restricted meaning in then clause, which is the subject matter of interpretation in the present appeal. On behalf of the respondents Mr. N. C. Chatterji rightly argued that the preparation clause was based upon the ground of vicinage and this circumstance would also suggest that the intention of the parties was that then clause should be binding upon the heirs andt and the assignees of the original parties to the Contract We accordingly hold that Mr. Bishen Narain on behalf of the appellant is unable to make good his submissions on this aspect of the case7. "A perpetuity", as defined by Lewis in hisn book on "Perpetuities" (p. 164), is a future limitation, whether executory or by way of remainder, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests. The rule as formulated falls within the branch of the law of property and its true object is to restrain the creation of future conditional interest in property. The rule against perpetuities is not concerned with contract as such or with contractual rights and obligations as such. Thus a contract to pay money to a person, his heirs or legal representatives upon a future contingency, which may happen beyond the period prescribed would be perfectly valid (Walsh v. Secretary of State for India), (1863) 10 HLC 367: 11 ER 1068. It is , therefore , well established that the rule of perpetuity concerns rights of property only and does not affect the making of contracts which do not create rights of property8. The rule does not therefore apply to personal contracts which do not create interest in property (See the decision of the Court of Appeal in SouthEastern Railway Co. v. Associated Portland Cement Manufacturers Ltd.),1 Ch12,even though the contract may have reference to land11. But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not of itself, create any interest in or charge on such property"Reading S. 14 along with S. 54 of the Transfer of Property Act it is manifest that a mere contract for sale of immoveable property does not create any interest in the immoveable property and it, therefore. follows that the rule of perpetuity cannot be applied to a covenant ofn even thought there is no time limit within which the option has to be exercised. It is true that the second paragraph of S. 40 of the Transfer of Property Act makes a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promissory either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under S. 40 of the Act which arises out of the contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law, in that both these rights are liable to be defeated by a purchaser for value without notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of premption because S. 40 of the statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land12. We are accordingly of the opinion that the covenant forn in this case does not offend the rule against perpetuities and cannot be considered to be void in law. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Ali Hossain Miya v, Raj Kumar Haldar, ILR (1943) 2 Cal 605: (AIR 1943 Cal 417 ) (FB), of the ,Allahabad High Court in Auad Ali v. Ali Athar, ILR 49 All 527: (AIR 1927 All 170 ) (FB), and of the Madras High Court in Chinna Munuswami Nayudu v. Sagalaguna Nayudu, ILR 49 Mad 387 : (AIR 1926 Mad 699 ). Mr. Bishen Narain relied on the decision of the Calcutta High Court in Nobin Chandra Soot v. Nabab Ali Sarkar, (1001) 5 Cal WN 343, and the Judgment of the Allahabad High Court in Gopi Ram v. Jeot Ram, ILR 45 All 478: (AIR 1923 All 514). For the reasons we have already stated we hold that the later decisions in ILR (1943), 2 Cal 605 : (AIR 1943 Cal 417 ) (FB) supra. in 11, R49 Mad 387 : (AIR 1926 Mad 699 ), supra and in ILR 49 AII 527 (AIR 1927 All 170 ) (FB), supra, correctly state the law on the point.
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FERRODOUS ESTATES (PVT) LTD Vs. P.GOPIRATHNAM (DEAD) AND ORS | consideration has been paid to the vendor and possession has been delivered in part- performance, where equity shifts in favour of the purchaser. In Nanjappan v. Ramasamy, (2015) 14 SCC 341 , the suit for specific performance was filed many years after the agreement dated 30.09.1987, which agreement was extended by three years twice and thereafter, by another two years. It was only after these extensions and exchange of legal notices between the parties that the respondents filed a suit for specific performance. It was in this factual background that the Court held: 10. In a suit for specific performance, the plaintiff has to aver and prove with satisfactory evidence that he was always ready and willing to perform his part of contract at all material time as mandatorily required under Section 16(c) of the Specific Relief Act, 1963. The first appellate court and the High Court recorded findings that the plaintiff was always ready and willing to perform his part of the contract. By a careful reading of the recitals in the agreement, the concurrent findings so recorded do not seem to reflect the conduct of the parties. As per recitals in Ext. P-1 agreement dated 30-9-1987, an amount of Rs 25,000 was paid by the respondent-plaintiffs to the appellant-defendant. Balance amount of Rs 20,000 was to be paid within 2½ years thereafter and get the sale executed. In the second agreement of sale (Ext. P-2 dated 21-3-1990) it is stated that the plaintiffs were unable to pay the balance amount within the stipulated period and get the sale deed executed and therefore the second sale agreement was executed extending the period for execution of sale deed for a further period of three years. As could be seen from the recitals from Ext. P-2, the respondents were unable to pay the balance sale consideration and get the sale deed executed. It is pertinent to note that the time for performance of contract was extended again and again totalling period of eight years. Even though the first appellate court and the High Court recorded findings that the respondent-plaintiffs were ready and willing to perform their part of contract, the fact that time was extended for eight years is to be kept in view while considering the question whether discretion is to be exercised in favour of the respondent-plaintiffs. xxx xxx xxx 13. The first sale agreement was executed on 30-9-1987 about twenty-seven years ago. The property is situated in Coimbatore City and over these years, value of property in Coimbatore City would have considerably increased. In Saradamani Kandappan v. S. Rajalakshmi [(2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104] , this Court has held that the value of the property escalates in the urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time. In the instant case, the first agreement was executed on 30-9- 1987 i.e. twenty-seven years ago. In view of passage of time and escalation of value of the property, grant of specific relief of performance would give an unfair advantage to the respondent-plaintiffs whereas the performance of the contract would involve great hardship to the appellant-defendant and his family members. 14. Considering the totality and the facts and circumstances, in our view, it is not appropriate to grant discretionary relief of specific performance to the respondent-plaintiffs for more than one reason. Admittedly, the suit property is the only property of the appellant-defendant and the appellant is said to have constructed a house and where he is currently residing with the family. As compared to the respondents, the appellant will suffer significant hardship if a decree for specific performance is granted against the appellant. Considering the circumstances, such as the construction of the residential house over the suit property, sale consideration, passage of time and hardship caused to the appellant, makes it inequitable to exercise the discretionary relief of specific performance and the concurrent finding of the first appellate court and the High Court decreeing the suit for specific performance is to be set aside. 31. The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour, even at the appellate stage. 32. Shri Giris fervent appeal that we should not exercise our discretionary jurisdiction under Article 136, given the fact that Rs.2 crores plus interest is to be paid almost by way of solatium to the appellant, has also to be rejected. As has been found earlier in this judgment, the defendants were held to have taken up dishonest pleas and also held to have been in breach of a solemn agreement in which they were to obtain the Urban Land Ceiling permission which, if not obtained, would, under the agreement itself, not stand in the way of the specific performance of the agreement between the parties. He who asks for equity must do equity. Given the conduct of the defendants in this case, as contrasted with the conduct of the appellant who is ready and willing throughout to perform its part of the bargain, we think this is a fit case in which the Division Bench judgment should be set aside. | 1[ds]Shri Giri is right in arguing that it is not open to the appellant to go behind the Full Bench judgment as it is inter-parties, as a result of which the law laid down by the Full Bench judgment must apply to the parties, res judicata clearly attaching even to issues of law based on the same cause of action – see Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 3 SCR 830 at p. 836.15. The Full Bench judgment, while stating that section 6 of the Tamil Nadu Urban Land Ceiling Act prohibited even agreements to sell, as a result of which there would be no transaction at all in the eyes of law, was careful thereafter to point out:40. …… While considering suit for specific performance, Court is only concerned whether purchaser has come to Court for enforcing the agreement in terms thereof. Asking vendor to get exemption and then to execute the agreement will be deviating from the terms of contract and the Court will not enforce such a contract. That will mean that purchaser is not willing to purchase the land as per agreement, but only with deviation, i.e., vendor must get exemption and execute the sale deed.16. In paragraph 41, the Full Bench also went on to state that it is possible to obtain exemption under the Tamil Nadu Urban Land Ceiling Act, over which the Court has no control, but despite that, the relief of specific performance is not usually granted as it would be going beyond the contract. Equally, after holding that section 6 prohibits a proposed transfer, the Full Bench went on to hold that a decree for specific performance cannot be granted conditionally upon the vendor satisfying certain conditions if it is not part of the agreement.17. When these portions of the Full Bench judgment are applied to the agreement in question, it is clear that the agreement itself contains a specific clause, namely, clause 4, in which it is for the vendor to obtain permission from the competent authority under the Tamil Nadu Urban Land Ceiling Act. This agreement, therefore, cannot be said to be hit by the decision of the Full Bench judgment as the Full Bench itself recognises that there may be agreements with such clauses, in which case it is the Courts duty to enforce such clause. That is all that the learned Single Judge has done in the facts of this case – he has correctly held that it was for the defendants to obtain exemption from the authorities under the Tamil Nadu Urban Land Ceiling Act which they did not, as a result of which they were in breach of the agreement.18. Viewed slightly differently, it is clear that the Full Bench judgment cannot stand in the way of the appellant for another reason. There can be no doubt that the suit property, admeasuring roughly 2002 sq. metres, was part of a larger property of 30 grounds, and that the defendants, being four in number, were entitled to retain 2000 sq. metres of the land owned by them. It was for this reason that it was incumbent upon the defendants to have obtained the Urban Land Ceiling permission to sell the land that was within their ceiling limit, which they failed to do.19. It is clear, therefore, that the agreement to sell cannot be said to be void ab initio, as a result of which the basis of the Division Bench judgment under appeal goes. Resultantly, the judgments in Jacques v. Withy, 1 H. Bl. 65, Hitchcock v. Way, (1837) 6 A & E 943 : 112 ER 360, and Ram Kristo Mandal v. Dhankisto Mandal, (1969) 1 SCR 342 ( at p. 349) cited by Shri Giri in support of the proposition that the repeal of a statute which makes void an agreement cannot revive such void agreement have no application on the facts of this case. In view of this, it is unnecessary to go into whether section 5(3) of the Tamil Nadu Urban Land Ceiling Act, together with its proviso, applies to the facts of this case.21. That conditional decrees for specific performance have been passed and upheld by this Court cannot be denied. Thus, in Vishwa Nath Sharma v. Shyam Shanker Goela, (2007) 10 SCC 595 [ Vishwa Nath Sharma], this Court held:12. The Privy Council in Motilal v. Nanhelal [(1929-30) 57 IA 333 : AIR 1930 PC 287 ] laid down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time. This proposition of law was followed in Chandnee Widya Vati Madden v. Dr. C.L. Katial [AIR 1964 SC 978 ] and R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140 : AIR 1971 SC 1238 ]. The Privy Council in Motilal case [(1929-30) 57 IA 333 : AIR 1930 PC 287 ] also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. Permission from the Land and Development Officer is not a condition precedent for grant of decree for specific performance. The High Court relied upon the decisions in Chandnee Widya Vati Madden v. Dr. C.L. Katial [AIR 1964 SC 978 ] and Bhim Singhji v. Union of India [(1981) 1 SCC 166 : AIR 1981 SC 234 ] to substantiate the conclusion. In Chandnee Widya [AIR 1964 SC 978 ] this Court confirmed the decision of the Punjab and Haryana High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was not a bar to the court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale, the decree- holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract.13. In R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140 : AIR 1971 SC 1238 ] it was held that proper form of decree in a case like the instant one would be to direct specific performance of the contract between the defendant and the plaintiff and to direct the subsequent transferee to join in the conveyance so as to pass on the title residing in him. This is because Defendant 2, son of Defendant 1 cannot take the stand that he was a transferee without notice. Admittedly, he is the son of Defendant 1. The view in R.C. Chandiok [(1970) 3 SCC 140 : AIR 1971 SC 1238 ] was a reiteration of earlier view in Durga Prasad v. Deep Chand [AIR 1954 SC 75 ] . This Court has repeatedly held that the decree can be passed and the sanction can be obtained for transfer of immovable property and the decree in such a case would be in the way the High Court has directed. (See Motilal Jain v. Ramdasi Devi [(2000) 6 SCC 420] , Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 5 SCC 481] , HPA International v. Bhagwandas Fateh Chand Daswani [(2004) 6 SCC 537] and Aniglase Yohannan v. Ramlatha [(2005) 7 SCC 534] .)The judgments of Immani Appa Rao v. Gollapalli Ramalingamurthi, (1962) 3 SCR 739 and Narayanamma v. Govindappa, 2019 SCC OnLine SC 1260 cited by Shri Giri in support of the proposition that no court will lend its aid to a man who founds his cause of action upon an illegal act has no application in a situation covered by the judgments contained in Vishwa Nath Sharma (supra) and Van Vibhag (supra).In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit v. Ramesh Chander, (2010) 14 SCC 596 [ Van Vibhag], this Court referred to a suit in which specific performance was not claimed on the ground that in view of the Urban Land (Ceiling & Regulation) Act, 1976, the appellant could not have made such claim. This was turned down specifically by this Court, stating:26. The appellant, on noticing the same, filed a suit on 11-2-1991 but he did not include the plea of specific performance. The appellant wanted to defend this action by referring to two facts (i) there was an acquisition proceeding over the said land under the Land Acquisition Act, and (ii) in view of the provisions of the Ceiling Act, the appellant could not have made the prayer for specific performance.27. The aforesaid purported justification of the appellant is not tenable in law. If the alleged statutory bar referred to by the appellant stood in its way to file a suit for specific performance, the same would also be a bar to the suit which it had filed claiming declaration of title and injunction. In fact, a suit for specific performance could have been easily filed subject to the provision of section 20 of the Ceiling Act.28. Similar questions came up for consideration before a Full Bench of the Gujarat High Court in Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai [AIR 1984 Guj 145 ]. The Full Bench held that a suit for specific performance could be filed despite the provisions of the Ceiling Act. A suit for specific performance in respect of vacant land in excess of ceiling limit can be filed and a conditional decree can be passed for specific performance, subject to exemption being obtained under section 20 of the Act (AIR paras 11-13).29. We are in respectful agreement with the views of the Full Bench in the abovementioned decision and the principles decided therein are attracted here.It is clear that as no steps whatsoever were taken under the Tamil Nadu Urban Land Ceiling Act, the savings clause will not apply.24. It is settled law that an appeal is a continuation of a suit, as a result of which a change in law will become applicable on the date of the appellate decree, provided that no vested right is taken away thereby. This was felicitously put in Rameshwar v. Jot Ram, (1976) 1 SCR 847 as follows:In P. Venkateswarlu v. Motor & General Traders [(1975) 1 SCC 770, 772 : AIR 1975 SC 1409 , 1410] this Court dealt with the adjectival activism relating to post-institution circumstances. Two propositions were laid down. Firstly, it was held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Courts procedural delays cannot deprive him of legal justice or right crystallised in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab [(1971) 1 SCC 34] .(emphasis in original)The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson [Patterson v. State of Alabama, (1934) 294 US 600, 607] illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [1940 FCR 84 : AIR 1941 FC 5 ] falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs — cannot deny rights — to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Venkateswarlu [P. Venkateswarlu v. Motor & General Traders, (1975) 1 SCC 770 : AIR 1975 SC 1409 ], read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty [54 MLJ 88 (PC)]). The law stated in Ramji Lal v. State of Punjab [AIR 1966 Punj 374 : ILR (1966) 2 Punj 125] is sound:Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiffs suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company [(1885) 16 QBD 178] ) and a fresh suit by him would be so barred by limitation.One may as well add that while taking cautious judicial cognisance of post-natal events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis.(emphasis in original)(at pp. 851-852)25. This judgment follows the hallowed principle that an appellate proceeding is in continuation of an original proceeding, as laid down in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 , also followed in later judgments of this Court.26. However, Shri Giri referred to the judgment in Keshavan Madhava Menon v. State of Bombay, 1951 SCR 228 in order to buttress the proposition that a repealing Act cannot be retrospectively applied so as to destroy a fundamental right. For this purpose, he relied upon Mahajan J.s concurring judgment at pp. 249-250. This judgment is wholly distinguishable given the fact that there is no fundamental right involved of the defendants in the present case and the fact that no vested right of the defendants has been affected by the Repeal Act. Equally, the judgment in John Lemm v. Thomas Alexander Mitchell, [1912] A.C. 400 correctly lays down the principle stated by Tindal, C.J. in Kay v. Goodwin, 130 E.R. 1403 [1830] as follows:I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.(at p. 406)In that case, since it was held on facts that persons had vested rights acquired by them in actions duly determined under the repealed law, these could not be affected. This is wholly distinguishable from the fact situation in the present case.27. This being the case, on the date on which the appellate decree was passed, in any case, the Tamil Nadu Urban Land Ceiling Act having been repealed would not stand in the way of a decree for specific performance. It must be remembered that there is no vested right under the Tamil Nadu Urban Land Ceiling Act in favour of the respondents. Any right, if at all, is in favour of the State Government, which, like Pontius Pilate, has washed its hands off this matter by a report submitted to this Court on 17.08.2015.28. The Division Bench judgment is also wholly incorrect in stating that for no fault of the appellant, since the court process has taken 27 years to decide the specific performance suit, specific performance being a discretionary relief ought not to be granted.Section 20, as it then stood, makes it clear that the jurisdiction to decree specific performance is discretionary; but that this discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal – see section 20(1). Section 20(2) speaks of cases in which the court may properly exercise discretion not to decree specific performance. Significantly, under clause (a) of sub-section (2), what is to be seen is the terms of the contract or the conduct of the parties at the time of entering into the contract. Even other circumstances under which the contract was entered into refers only to circumstances that prevailed at the time of entering into the contract. It is only then that this exception kicks in – and this is when the plaintiff gets an unfair advantage over the defendant. Equally, under clause (b) of sub- section (2), the hardship involved is again at the time of entering into the contract which is clear from the expression which he did not foresee. This is made clear beyond doubt by Explanation II of section 20 which states that the only exception to the hardship principle contained in clause (b) of sub-section (2) is where hardship results from an act of the plaintiff subsequent to the contract. In this case also, the act cannot be an act of a third party or of the court – the act must only be the act of the plaintiff. Clause (c) of sub-section (2) again refers to the defendant entering into the contract under circumstances which makes it inequitable to enforce specific performance. Here again, the point of time at which this is to be judged is the time of entering into the contract.29. Given section 20, the courts have uniformly held that the mere escalation of land prices after the date of the filing of the suit cannot be the sole ground to deny specific performance.30. It is settled law that mere delay by itself, without more, cannot be the sole factor to deny specific performance – See Mademsetty Satyanarayana v. G. Yelloji Rao, (1965) 2 SCR 221 at pp. 229-230. Thus, in K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1 , this Court made it clear that if property prices have risen dramatically within a period of two and a half years before filing of the suit for specific performance, and it is coupled with violation of the agreement by the plaintiff, specific performance will not be decreed. The Court held:10. … 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. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades — particularly after 1973 [It is a well-known fact that the steep rise in the price of oil following the 1973 Arab-Israeli war set in inflationary trends all over the world. Particularly affected were countries like who import bulk of their requirement of oil]. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months period. The question is what was the plaintiff doing in this interval of more than two years? … The defendants consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 1/2 years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15- 12-1978 till 11-7-1981, i.e., for a period of more than 2 1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance.11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar [AIR 1952 Mad 389 : (1952) 1 MLJ 44 ] holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the 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. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties — evolved in times when prices and values were stable and inflation was unknown — requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time- limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).xxx xxx xxx13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.14. Shri Sivasubramaniam then relied upon the decision in Jiwan Lal (Dr) v. Brij Mohan Mehra [(1972) 2 SCC 757 : (1973) 2 SCR 230 ] to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani [(1993) 1 SCC 519] . Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.Likewise, this Court, in Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18 , made it clear that given the steep rise in urban land prices, it may not be correct now to say that time is not of essence in performance of a contract of sale of immovable property. Thus, where time can be said to be of the essence in the facts of a given case, and the purchaser does not take steps to complete the sale within the stipulated period and the vendor is not responsible for any delay, the steep rise in price within the stipulated time would be a circumstance which would make it inequitable to grant the relief of specific performance. This Court held:36. The principle that time is not of the essence of contracts relating to immovable properties took shape in an era when market values of immovable properties were stable and did not undergo any marked change even over a few years (followed mechanically, even when value ceased to be stable). As a consequence, time for performance, stipulated in the agreement was assumed to be not material, or at all events considered as merely indicating the reasonable period within which contract should be performed. The assumption was that grant of specific performance would not prejudice the vendor defendant financially as there would not be much difference in the market value of the property even if the contract was performed after a few months. This principle made sense during the first half of the twentieth century, when there was comparatively very little inflation, in India. The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century. There has been a galloping inflation and prices of immovable properties have increased steeply, by leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now. It is no exaggeration to say that properties in cities, worth a lakh or so in or about 1975 to 1980, may cost a crore or more now.37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and non- readiness. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.xxx xxx xxx41. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this Court in K.S. Vidyanadam v. Vairavan [(1997) 3 SCC 1] (by Jeevan Reddy, J. who incidentally was a member of the Constitution Bench in Chand Rani [(1993) 1 SCC 519] ). This Court observed: (SCC pp. 7 & 9, paras 10-11)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. … in the case of urban properties in India, it is well- known that their prices have been going up sharply over the last few decades— particularly after 1973. …11. … We cannot be oblivious to the 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. … Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties—evolved in times when prices and values were stable and inflation was unknown—requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so.(emphasis in original)42. Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to a larger Bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani [(1993) 1 SCC 519] and other cases. Be that as it may.43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, 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 the purchaser was ready and willing to perform his part of the contract.(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the 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 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where31. The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour, even at the appellate stage.32. Shri Giris fervent appeal that we should not exercise our discretionary jurisdiction under Article 136, given the fact that Rs.2 crores plus interest is to be paid almost by way of solatium to the appellant, has also to be rejected. As has been found earlier in this judgment, the defendants were held to have taken up dishonest pleas and also held to have been in breach of a solemn agreement in which they were to obtain the Urban Land Ceiling permission which, if not obtained, would, under the agreement itself, not stand in the way of the specific performance of the agreement between the parties. He who asks for equity must do equity.Likewise, this Court, in Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18 , made it clear that given the steep rise in urban land prices, it may not be correct now to say that time is not of essence in performance of a contract of sale of immovable property. Thus, where time can be said to be of the essence in the facts of a given case, and the purchaser does not take steps to complete the sale within the stipulated period and the vendor is not responsible for any delay, the steep rise in price within the stipulated time would be a circumstance which would make it inequitable to grant the relief of specific performance. This Court held:36. The principle that time is not of the essence of contracts relating to immovable properties took shape in an era when market values of immovable properties were stable and did not undergo any marked change even over a few years (followed mechanically, even when value ceased to be stable). As a consequence, time for performance, stipulated in the agreement was assumed to be not material, or at all events considered as merely indicating the reasonable period within which contract should be performed. The assumption was that grant of specific performance would not prejudice the vendor defendant financially as there would not be much difference in the market value of the property even if the contract was performed after a few months. This principle made sense during the first half of the twentieth century, when there was comparatively very little inflation, in India. The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century. There has been a galloping inflation and prices of immovable properties have increased steeply, by leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now. It is no exaggeration to say that properties in cities, worth a lakh or so in or about 1975 to 1980, may cost a crore or more now.37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and non- readiness. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.xxx xxx xxx41. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this Court in K.S. Vidyanadam v. Vairavan [(1997) 3 SCC 1] (by Jeevan Reddy, J. who incidentally was a member of the Constitution Bench in Chand Rani [(1993) 1 SCC 519] ). This Court observed: (SCC pp. 7 & 9, paras 10-11)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. … in the case of urban properties in India, it is well- known that their prices have been going up sharply over the last few decades— particularly after 1973. …11. … We cannot be oblivious to the 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. … Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties—evolved in times when prices and values were stable and inflation was unknown—requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so.(emphasis in original)42. Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to a larger Bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani [(1993) 1 SCC 519] and other cases. Be that as it may.43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, 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 the purchaser was ready and willing to perform his part of the contract.(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the 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 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, wherethe 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.Thus, in Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 8 SCC 146 , a three-Judge bench of this Court held:3. The appeal was heard by a two-Judge Bench. The learned Judges have concurred that the appellant is entitled to specific performance of the agreement dated 8- 9-1966. There has, however, been difference of opinion between learned Judges on the condition in respect of additional amount that may be paid by the appellant to Respondents 1 and 2 and, therefore, the matter has been placed before this three-Judge Bench. The opinions of the learned Judges are reported in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 5 SCC 481] In the opinion expressed by Brother Justice Doraiswamy Raju, the appellant has been directed to pay a sum of Rs 40,00,000 in addition to the sum already paid to Respondents 1 and 2 and in the view of Brother Justice Ashok Bhan, it would be unfair to impose the condition of payment of Rs 40,00,000 and the appellant is entitled to specific performance of agreement to sell on the price mentioned in the agreement.xxx xxx xxx5. The appellant is prepared and willing to take possession of the incomplete flat without claiming any reduction in the purchase price and would not hold Respondents 1 and 2 responsible for anything incomplete in the building. It has been concurrently held that she did not commit breach of the agreement to sell. She has always been ready and willing to perform her part of the agreement. The appellant is ready and willing to pay to Respondents 1 and 2 interest on the sum of Rs 25,000. The breach was committed by Respondents 1 and 2 as noticed hereinbefore. It is evident that the appellant is ready to take incomplete flat and pay further sum as noticed, most likely on account of phenomenal increase in the market price of the flat during the pendency of this litigation for over three decades. We see no reason why the appellant cannot be allowed to have, for her alone, the entire benefit of manifold mega increase of the value of real estate property in the locality. In our view, it would not be unreasonable and inequitable to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question. There is no reason why the appellant, who is not a defaulting party, should not be allowed to reap to herself the fruits of increase in value.6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.xxx xxx xxx8. Having regard to the totality of the circumstances, we would direct the appellant to pay to Respondents 1 and 2 a sum of Rs 6,25,000 instead of Rs 25,000. The amount of Rs 40,00,000 wherever it appears in the opinion of Justice Doraiswamy Raju, would be read as Rs 6,25,000. All other conditions will remain.Given the conduct of the defendants in this case, as contrasted with the conduct of the appellant who is ready and willing throughout to perform its part of the bargain, we think this is a fit case in which the Division Bench judgment should be set aside. | 1 | 22,524 | 9,057 | ### 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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consideration has been paid to the vendor and possession has been delivered in part- performance, where equity shifts in favour of the purchaser. In Nanjappan v. Ramasamy, (2015) 14 SCC 341 , the suit for specific performance was filed many years after the agreement dated 30.09.1987, which agreement was extended by three years twice and thereafter, by another two years. It was only after these extensions and exchange of legal notices between the parties that the respondents filed a suit for specific performance. It was in this factual background that the Court held: 10. In a suit for specific performance, the plaintiff has to aver and prove with satisfactory evidence that he was always ready and willing to perform his part of contract at all material time as mandatorily required under Section 16(c) of the Specific Relief Act, 1963. The first appellate court and the High Court recorded findings that the plaintiff was always ready and willing to perform his part of the contract. By a careful reading of the recitals in the agreement, the concurrent findings so recorded do not seem to reflect the conduct of the parties. As per recitals in Ext. P-1 agreement dated 30-9-1987, an amount of Rs 25,000 was paid by the respondent-plaintiffs to the appellant-defendant. Balance amount of Rs 20,000 was to be paid within 2½ years thereafter and get the sale executed. In the second agreement of sale (Ext. P-2 dated 21-3-1990) it is stated that the plaintiffs were unable to pay the balance amount within the stipulated period and get the sale deed executed and therefore the second sale agreement was executed extending the period for execution of sale deed for a further period of three years. As could be seen from the recitals from Ext. P-2, the respondents were unable to pay the balance sale consideration and get the sale deed executed. It is pertinent to note that the time for performance of contract was extended again and again totalling period of eight years. Even though the first appellate court and the High Court recorded findings that the respondent-plaintiffs were ready and willing to perform their part of contract, the fact that time was extended for eight years is to be kept in view while considering the question whether discretion is to be exercised in favour of the respondent-plaintiffs. xxx xxx xxx 13. The first sale agreement was executed on 30-9-1987 about twenty-seven years ago. The property is situated in Coimbatore City and over these years, value of property in Coimbatore City would have considerably increased. In Saradamani Kandappan v. S. Rajalakshmi [(2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104] , this Court has held that the value of the property escalates in the urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time. In the instant case, the first agreement was executed on 30-9- 1987 i.e. twenty-seven years ago. In view of passage of time and escalation of value of the property, grant of specific relief of performance would give an unfair advantage to the respondent-plaintiffs whereas the performance of the contract would involve great hardship to the appellant-defendant and his family members. 14. Considering the totality and the facts and circumstances, in our view, it is not appropriate to grant discretionary relief of specific performance to the respondent-plaintiffs for more than one reason. Admittedly, the suit property is the only property of the appellant-defendant and the appellant is said to have constructed a house and where he is currently residing with the family. As compared to the respondents, the appellant will suffer significant hardship if a decree for specific performance is granted against the appellant. Considering the circumstances, such as the construction of the residential house over the suit property, sale consideration, passage of time and hardship caused to the appellant, makes it inequitable to exercise the discretionary relief of specific performance and the concurrent finding of the first appellate court and the High Court decreeing the suit for specific performance is to be set aside. 31. The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour, even at the appellate stage. 32. Shri Giris fervent appeal that we should not exercise our discretionary jurisdiction under Article 136, given the fact that Rs.2 crores plus interest is to be paid almost by way of solatium to the appellant, has also to be rejected. As has been found earlier in this judgment, the defendants were held to have taken up dishonest pleas and also held to have been in breach of a solemn agreement in which they were to obtain the Urban Land Ceiling permission which, if not obtained, would, under the agreement itself, not stand in the way of the specific performance of the agreement between the parties. He who asks for equity must do equity. Given the conduct of the defendants in this case, as contrasted with the conduct of the appellant who is ready and willing throughout to perform its part of the bargain, we think this is a fit case in which the Division Bench judgment should be set aside.
### Response:
1
### Explanation:
Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, 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 the purchaser was ready and willing to perform his part of the contract.(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the 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 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, wherethe 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.Thus, in Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 8 SCC 146 , a three-Judge bench of this Court held:3. The appeal was heard by a two-Judge Bench. The learned Judges have concurred that the appellant is entitled to specific performance of the agreement dated 8- 9-1966. There has, however, been difference of opinion between learned Judges on the condition in respect of additional amount that may be paid by the appellant to Respondents 1 and 2 and, therefore, the matter has been placed before this three-Judge Bench. The opinions of the learned Judges are reported in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 5 SCC 481] In the opinion expressed by Brother Justice Doraiswamy Raju, the appellant has been directed to pay a sum of Rs 40,00,000 in addition to the sum already paid to Respondents 1 and 2 and in the view of Brother Justice Ashok Bhan, it would be unfair to impose the condition of payment of Rs 40,00,000 and the appellant is entitled to specific performance of agreement to sell on the price mentioned in the agreement.xxx xxx xxx5. The appellant is prepared and willing to take possession of the incomplete flat without claiming any reduction in the purchase price and would not hold Respondents 1 and 2 responsible for anything incomplete in the building. It has been concurrently held that she did not commit breach of the agreement to sell. She has always been ready and willing to perform her part of the agreement. The appellant is ready and willing to pay to Respondents 1 and 2 interest on the sum of Rs 25,000. The breach was committed by Respondents 1 and 2 as noticed hereinbefore. It is evident that the appellant is ready to take incomplete flat and pay further sum as noticed, most likely on account of phenomenal increase in the market price of the flat during the pendency of this litigation for over three decades. We see no reason why the appellant cannot be allowed to have, for her alone, the entire benefit of manifold mega increase of the value of real estate property in the locality. In our view, it would not be unreasonable and inequitable to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question. There is no reason why the appellant, who is not a defaulting party, should not be allowed to reap to herself the fruits of increase in value.6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.xxx xxx xxx8. Having regard to the totality of the circumstances, we would direct the appellant to pay to Respondents 1 and 2 a sum of Rs 6,25,000 instead of Rs 25,000. The amount of Rs 40,00,000 wherever it appears in the opinion of Justice Doraiswamy Raju, would be read as Rs 6,25,000. All other conditions will remain.Given the conduct of the defendants in this case, as contrasted with the conduct of the appellant who is ready and willing throughout to perform its part of the bargain, we think this is a fit case in which the Division Bench judgment should be set aside.
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Bongaigaon Refinery & Petrochemicals Ltd Vs. Samijuddin Ahmad | respondent preferred a writ appeal and therein on 27-7-1993 he sought for withdrawal of the writ petition with the liberty of filing a fresh one on the same subject. This prayer was allowed by the Division Bench. It appears that the respondent thereafter moved the Central Government by raising an industrial dispute and seeking a reference to Industrial Court for adjudication under S. 10 of the Industrial Disputes Act, 1947. On 1-3-1989 the Central Government rejected the prayer made by the respondent forming an opinion that as the respondent had not actually joined the service he had not become the employee of the company and he was not a workman entitled to raise a dispute under the I.D. Act. Belatedly on 6-10-1993, more than 4 1/2 years after the decision of the Central Government dated 1-3-1989 the respondent sought for review of the decision dated 1-3-1989. He also filed a writ petition some time in the year 1994 seeking a writ of mandamus to the Central Government for disposing of his representation dated 6-10-1993 for review of the order dated 1-3-1989. On 22-11-1994 a learned Single Judge of High Court of Assam disposed of the petition by directing the respondents representation to be disposed of within a period of three months. On 2-6-1995 the Central Government directed the following dispute to be referred for adjudication by the industrial Tribunal, Guwahati :- Whether the action of the management of Bongalgaon Refinery and Petro Chemicals Ltd. Dhaligaon, P.O. Bongalgaon, Dist. Goalpara is justified in removing from service Shri Samijuddin Ahmed, workman on the ground that the workman has given false information to seek employment against land oustee quota ? If not, to what relief the concerned workman is entitled to ? * The appellant laid a challenge to the order of reference dated 2-6-1995 by filing a writ petition in the High Court. A learned single Judge held that the reference was entirely misconceived inasmuch as the employment given to the respondent was obtained on concealment of material facts and hence was withdrawn. Inasmuch as the respondent never joined the employment of the appellant the question of making a reference to test the validity of termination of service of respondent did not arise. The order of reference dated 2-6-1995 was directed to be quashed. The respondent preferred a writ appeal. By impugned order dated 14-10-1999 the Division Bench of the High Court had allowed the appeal, setting aside the judgment of the learned Single Judge, and held that the dispute should have been allowed to be adjudicated upon by the Industrial Tribunal. The appellant corporation has filed this appeal by special leave feeling aggrieved by the impugned Judgment of the Division Bench. Having heard the learned counsel for the parties we are of the opinion that the appeal deserves to be allowed and the order of the Division Bench deserves to be set aside. Documentary evidence filed on behalf of the appellant clearly goes to show that the respondent had never entered into the employment of the appellant. He was offered an employment under a special scheme whereunder employment was available only subject to satisfying certain eligibility conditions. The respondent made a material concealment of facts and tried to secure an employment to which he was not entitled under the scheme. Such material concealment was detected timely and therefore his joining report was not accepted by the competent authority of the appellant company and the same was turned down. This averment made on affidavit and supported by documentary evidence has not been rebutted by the respondent. Inasmuch as the respondent had not entered the employment of the appellant, referring a dispute under S. 10 of the I.D. Act based on assumption that the respondent had entered the service of the appellant and was then removed from service, suffered from material infirmity and was therefore vitiated. The Division Bench was not right in forming an opinion that the controversy raised by the appellant should have been left to be adjudicated upon by the Industrial Tribunal. The Industrial Tribunal cannot go behind the order of reference. It would have tried, on the terms of the reference, the issue of removal from service, and not the issue whether the respondent had at all entered in service. Moreover, between 1-3-1989 and 2-6-1995 nothing new had happened so as to warrant a change of opinion by the Central Government. It has been pointed out on behalf of the appellant that there was still a long queue of persons waiting for employment in the preferred category of displaced persons while the scheme itself has stood withdrawn, on 16-1-1989. The respondent by seeking an appointment in the employment of the appellant by making material concealment of facts was attempting to deprive someone else of his legitimate claim for appointment against limited number of vacancies available and the Court should not have extended its helping hand to a non-deserving claimant. Be that as it may we are satisfied that reference of dispute under S. 10 of I.D. Act at the instance of the respondent was wholly unwarranted and uncalled for.The learned counsel for the respondent relied on Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, to submit that in view of S. 2(k) of I.D. Act a dispute raised by any person even if not a workman stricto sensu is competent. But we are not impressed. In the abovenoted case any appointed on probation and it was doubtful whether he was a workman or not. The case did not relate to a person never employed and yet claiming to be workman. It was held that any person cannot be read without limitation and a person in respect of which the employer-employee relationship never existed and can never possibly exist cannot be the subject matter of dispute between employers and workmen. The present case does not satisfy the tests laid down vide para 21 of the decision cited so as to warrant the validity of reference being upheld. | 1[ds]learly goes to show that the respondent had never entered into the employment of the appellant. He was offered an employment under a special scheme whereunder employment was available only subject to satisfying certain eligibility conditions. The respondent made a material concealment of facts and tried to secure an employment to which he was not entitled under the scheme. Such material concealment was detected timely and therefore his joining report was not accepted by the competent authority of the appellant company and the same was turned down. This averment made on affidavit and supported by documentary evidence has not been rebutted by the respondent. Inasmuch as the respondent had not entered the employment of the appellant, referring a dispute under S. 10 of the I.D. Act based on assumption that the respondent had entered the service of the appellant and was then removed from service, suffered from material infirmity and was therefore vitiated. The Division Bench was not right in forming an opinion that the controversy raised by the appellant should have been left to be adjudicated upon by the Industrial Tribunal. The Industrial Tribunal cannot go behind the order of reference. It would have tried, on the terms of the reference, the issue of removal from service, and not the issue whether the respondent had at all entered in service. Moreover, between5 nothing new had happened so as to warrant a change of opinion by the Central Government. It has been pointed out on behalf of the appellant that there was still a long queue of persons waiting for employment in the preferred category of displaced persons while the scheme itself has stood withdrawn, on. The respondent by seeking an appointment in the employment of the appellant by making material concealment of facts was attempting to deprive someone else of his legitimate claim for appointment against limited number of vacancies available and the Court should not have extended its helping hand to ag claimant. Be that as it may we are satisfied that reference of dispute under S. 10 of I.D. Act at the instance of the respondent was wholly unwarranted and uncalled for.The learned counsel for the respondent relied on Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, to submit that in view of S. 2(k) of I.D. Act a dispute raised by any person even if not a workman stricto sensu is competent. But we are not impressed. In the abovenoted case any appointed on probation and it was doubtful whether he was a workman or not. The case did not relate to a person never employed and yet claiming to be workman. It was held that any person cannot be read without limitation and a person in respect of which thee relationship never existed and can never possibly exist cannot be the subject matter of dispute between employers and workmen. The present case does not satisfy the tests laid down vide para 21 of the decision cited so as to warrant the validity of reference being upheld. | 1 | 1,619 | 543 | ### 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:
respondent preferred a writ appeal and therein on 27-7-1993 he sought for withdrawal of the writ petition with the liberty of filing a fresh one on the same subject. This prayer was allowed by the Division Bench. It appears that the respondent thereafter moved the Central Government by raising an industrial dispute and seeking a reference to Industrial Court for adjudication under S. 10 of the Industrial Disputes Act, 1947. On 1-3-1989 the Central Government rejected the prayer made by the respondent forming an opinion that as the respondent had not actually joined the service he had not become the employee of the company and he was not a workman entitled to raise a dispute under the I.D. Act. Belatedly on 6-10-1993, more than 4 1/2 years after the decision of the Central Government dated 1-3-1989 the respondent sought for review of the decision dated 1-3-1989. He also filed a writ petition some time in the year 1994 seeking a writ of mandamus to the Central Government for disposing of his representation dated 6-10-1993 for review of the order dated 1-3-1989. On 22-11-1994 a learned Single Judge of High Court of Assam disposed of the petition by directing the respondents representation to be disposed of within a period of three months. On 2-6-1995 the Central Government directed the following dispute to be referred for adjudication by the industrial Tribunal, Guwahati :- Whether the action of the management of Bongalgaon Refinery and Petro Chemicals Ltd. Dhaligaon, P.O. Bongalgaon, Dist. Goalpara is justified in removing from service Shri Samijuddin Ahmed, workman on the ground that the workman has given false information to seek employment against land oustee quota ? If not, to what relief the concerned workman is entitled to ? * The appellant laid a challenge to the order of reference dated 2-6-1995 by filing a writ petition in the High Court. A learned single Judge held that the reference was entirely misconceived inasmuch as the employment given to the respondent was obtained on concealment of material facts and hence was withdrawn. Inasmuch as the respondent never joined the employment of the appellant the question of making a reference to test the validity of termination of service of respondent did not arise. The order of reference dated 2-6-1995 was directed to be quashed. The respondent preferred a writ appeal. By impugned order dated 14-10-1999 the Division Bench of the High Court had allowed the appeal, setting aside the judgment of the learned Single Judge, and held that the dispute should have been allowed to be adjudicated upon by the Industrial Tribunal. The appellant corporation has filed this appeal by special leave feeling aggrieved by the impugned Judgment of the Division Bench. Having heard the learned counsel for the parties we are of the opinion that the appeal deserves to be allowed and the order of the Division Bench deserves to be set aside. Documentary evidence filed on behalf of the appellant clearly goes to show that the respondent had never entered into the employment of the appellant. He was offered an employment under a special scheme whereunder employment was available only subject to satisfying certain eligibility conditions. The respondent made a material concealment of facts and tried to secure an employment to which he was not entitled under the scheme. Such material concealment was detected timely and therefore his joining report was not accepted by the competent authority of the appellant company and the same was turned down. This averment made on affidavit and supported by documentary evidence has not been rebutted by the respondent. Inasmuch as the respondent had not entered the employment of the appellant, referring a dispute under S. 10 of the I.D. Act based on assumption that the respondent had entered the service of the appellant and was then removed from service, suffered from material infirmity and was therefore vitiated. The Division Bench was not right in forming an opinion that the controversy raised by the appellant should have been left to be adjudicated upon by the Industrial Tribunal. The Industrial Tribunal cannot go behind the order of reference. It would have tried, on the terms of the reference, the issue of removal from service, and not the issue whether the respondent had at all entered in service. Moreover, between 1-3-1989 and 2-6-1995 nothing new had happened so as to warrant a change of opinion by the Central Government. It has been pointed out on behalf of the appellant that there was still a long queue of persons waiting for employment in the preferred category of displaced persons while the scheme itself has stood withdrawn, on 16-1-1989. The respondent by seeking an appointment in the employment of the appellant by making material concealment of facts was attempting to deprive someone else of his legitimate claim for appointment against limited number of vacancies available and the Court should not have extended its helping hand to a non-deserving claimant. Be that as it may we are satisfied that reference of dispute under S. 10 of I.D. Act at the instance of the respondent was wholly unwarranted and uncalled for.The learned counsel for the respondent relied on Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, to submit that in view of S. 2(k) of I.D. Act a dispute raised by any person even if not a workman stricto sensu is competent. But we are not impressed. In the abovenoted case any appointed on probation and it was doubtful whether he was a workman or not. The case did not relate to a person never employed and yet claiming to be workman. It was held that any person cannot be read without limitation and a person in respect of which the employer-employee relationship never existed and can never possibly exist cannot be the subject matter of dispute between employers and workmen. The present case does not satisfy the tests laid down vide para 21 of the decision cited so as to warrant the validity of reference being upheld.
### Response:
1
### Explanation:
learly goes to show that the respondent had never entered into the employment of the appellant. He was offered an employment under a special scheme whereunder employment was available only subject to satisfying certain eligibility conditions. The respondent made a material concealment of facts and tried to secure an employment to which he was not entitled under the scheme. Such material concealment was detected timely and therefore his joining report was not accepted by the competent authority of the appellant company and the same was turned down. This averment made on affidavit and supported by documentary evidence has not been rebutted by the respondent. Inasmuch as the respondent had not entered the employment of the appellant, referring a dispute under S. 10 of the I.D. Act based on assumption that the respondent had entered the service of the appellant and was then removed from service, suffered from material infirmity and was therefore vitiated. The Division Bench was not right in forming an opinion that the controversy raised by the appellant should have been left to be adjudicated upon by the Industrial Tribunal. The Industrial Tribunal cannot go behind the order of reference. It would have tried, on the terms of the reference, the issue of removal from service, and not the issue whether the respondent had at all entered in service. Moreover, between5 nothing new had happened so as to warrant a change of opinion by the Central Government. It has been pointed out on behalf of the appellant that there was still a long queue of persons waiting for employment in the preferred category of displaced persons while the scheme itself has stood withdrawn, on. The respondent by seeking an appointment in the employment of the appellant by making material concealment of facts was attempting to deprive someone else of his legitimate claim for appointment against limited number of vacancies available and the Court should not have extended its helping hand to ag claimant. Be that as it may we are satisfied that reference of dispute under S. 10 of I.D. Act at the instance of the respondent was wholly unwarranted and uncalled for.The learned counsel for the respondent relied on Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, to submit that in view of S. 2(k) of I.D. Act a dispute raised by any person even if not a workman stricto sensu is competent. But we are not impressed. In the abovenoted case any appointed on probation and it was doubtful whether he was a workman or not. The case did not relate to a person never employed and yet claiming to be workman. It was held that any person cannot be read without limitation and a person in respect of which thee relationship never existed and can never possibly exist cannot be the subject matter of dispute between employers and workmen. The present case does not satisfy the tests laid down vide para 21 of the decision cited so as to warrant the validity of reference being upheld.
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Commissioner Of Income Tax, Karnataka Vs. M/S Bedi & Company Private Limited | satisfactory, and disbelieving the plea that the amount was advanced as loan, the Income tax Officer treated it as income received from business and accordingly passed the order of assessment, under S.144 of the Income tax Act, bringing to tax the said amount of Rs. 32,58,500/- on December 2, 1970. The respondent - assessee pursued the appeal before the Appellate Assistant Commissioner who dismissed the same on December 16, 1972. The assessees appeal before the Income tax Appellate Tribunal was also dismissed on May 21, 1974. From that order of the Tribunal the above said question arose.4. In the Tribunal the Accountant Member and Judicial Member wrote separate orders but concurred on the dismissal of the appeal filed by the assessees. The Accountant Member agreed with the reasoning and conclusion of the Income tax Officer and the Appellate Assistant Commissioner that the loan was not bona fide transaction; the Judicial Member took the view that many of the circumstances relied upon by the Revenue were neutral and the others raised suspicion against the assessee but concurred in the conclusion reached by the Accountant Member on the ground that the assessee had suffered the assessment under S.144 and there was paucity of material.5. The High Court took note of all the factors mentioned in the order of the Tribunal but opined that the apparent set of things disclosed that the said amount was loan and that the burden of showing that the apparent was not real, lay heavily on the Revenue, but apart from relying on certain circumstances no material was brought on record by the Revenue to hold that the said amount was income from business. 6. Mr. K. N. Shukla, learned counsel for the appellant Revenue, argued that the High Court erred in arriving at its own finding of fact and that unless the findings recorded by the Tribunal were perverse the High Court ought not to have interfered with the findings of facts. In our view the submission is too broad to merit acceptance. There cannot be any doubt that High Court will not address itself to recording findings of facts unless the subject matter of the question referred to it by the Tribunal, either under sub-s.(1) or sub-s.(2) of S.256 of the Income tax Act, relates to the perversity of the findings arrived at by the Tribunal. That sort of question has to be distinguished from a mixed question of facts and law, which also requires consideration and discussion of facts but does not warrant returning findings of facts inconsistent with the findings recorded by the Tribunal while giving its opinion on the question referred to the High Court. In answering the question, in this case, the High Court had to deal with various facts on record to determine whether the amount in question was loan or income. If such discussion of facts has led to arriving at the conclusion that the amount was loan but not income. It cannot be urged that the High Court disturbed the finding of fact recorded by the Tribunal. 7. Here the Tribunal did not find any material to record specific finding that the amount in question is in the nature of commission paid by Parsons and Whittemore to the assessee; it took note of the fact that the loan was advanced by agreement dated November 15, 1958 and that the Reserve Bank of India had accorded permission for obtaining the loan; it has also taken into consideration an earlier memorandum of understanding between the assessee and the representative of foreign Creditor, of July 19, 1957, recording that the proposal to grant loan would materialise along with implementation of other agreements to be entered into with the Paper Mills Limited. The High Court in regard to the loan agreement dated November 15, 1958, observed that the agreement provided that the amount would be utilised for purposes of purchasing shares in the said Paper Mills and that the shares were accordingly purchased and they were treated as belonging to the assessee - company. The High Court also referred to a letter of the foreign Creditor addressed to the Income tax Officer in November 1970 in response to his query letter and opined that the Foreign Collaborator maintained that the transaction was loan as late as in November 1970. It also noticed the reasoning of the Revenue as reflected in the orders of the Income tax Officer and the Appellate Assistant Commissioner. The High Court is also justified in its comment that without recording any finding that the amount was commission or business receipt, the Tribunal was not justified in coming to the conclusion that it could be assessed as income. In our view the High Court has rightly held that the circumstances taken singly or cumulatively did not justify conclusion that the amount was not received as loan as it purported to be but was anything in the nature of commission or any receipt of business. In arriving at the conclusion to which it did, it was necessary for the High Court to refer to the facts and discuss them to answer the mixed question of facts and law and that is what the High Court had done.8. The facts on record apparently indicate that the transaction was one of loan. The circumstances relied upon by the Revenue, namely, that the loan had been advanced without security, that the loan had not been repaid and no interest on the loan was paid by the assessee and that the agreement of loan was executed contemporaneously with other two agreements with regard to supply of machine and construction of building for the Paper Mill cannot, without any further material, lead to the inference that the amount was not loan but business income. It appears to us that the last mentioned circumstance supports the plea of the assessee that the said amount was received as loan. For the aforementioned reasons we do not find any illegality in judgment of the High Court under appeal. 9. | 0[ds]In our view the submission is too broad to merit acceptance. There cannot be any doubt that High Court will not address itself to recording findings of facts unless the subject matter of the question referred to it by the Tribunal, either under sub-s.(1) or sub-s.(2) of S.256 of the Income tax Act, relates to the perversity of the findings arrived at by the Tribunal. That sort of question has to be distinguished from a mixed question of facts and law, which also requires consideration and discussion of facts but does not warrant returning findings of facts inconsistent with the findings recorded by the Tribunal while giving its opinion on the question referred to the High Court. In answering the question, in this case, the High Court had to deal with various facts on record to determine whether the amount in question was loan or income. If such discussion of facts has led to arriving at the conclusion that the amount was loan but not income. It cannot be urged that the High Court disturbed the finding of fact recorded by theHigh Court is also justified in its comment that without recording any finding that the amount was commission or business receipt, the Tribunal was not justified in coming to the conclusion that it could be assessed as income. In our view the High Court has rightly held that the circumstances taken singly or cumulatively did not justify conclusion that the amount was not received as loan as it purported to be but was anything in the nature of commission or any receipt of business. In arriving at the conclusion to which it did, it was necessary for the High Court to refer to the facts and discuss them to answer the mixed question of facts and law and that is what the High Court had done.8. The facts on record apparently indicate that the transaction was one of loan. The circumstances relied upon by the Revenue, namely, that the loan had been advanced without security, that the loan had not been repaid and no interest on the loan was paid by the assessee and that the agreement of loan was executed contemporaneously with other two agreements with regard to supply of machine and construction of building for the Paper Mill cannot, without any further material, lead to the inference that the amount was not loan but business income. It appears to us that the last mentioned circumstance supports the plea of the assessee that the said amount was received as loan. For the aforementioned reasons we do not find any illegality in judgment of the High Court under appeal. | 0 | 1,429 | 477 | ### Instruction:
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satisfactory, and disbelieving the plea that the amount was advanced as loan, the Income tax Officer treated it as income received from business and accordingly passed the order of assessment, under S.144 of the Income tax Act, bringing to tax the said amount of Rs. 32,58,500/- on December 2, 1970. The respondent - assessee pursued the appeal before the Appellate Assistant Commissioner who dismissed the same on December 16, 1972. The assessees appeal before the Income tax Appellate Tribunal was also dismissed on May 21, 1974. From that order of the Tribunal the above said question arose.4. In the Tribunal the Accountant Member and Judicial Member wrote separate orders but concurred on the dismissal of the appeal filed by the assessees. The Accountant Member agreed with the reasoning and conclusion of the Income tax Officer and the Appellate Assistant Commissioner that the loan was not bona fide transaction; the Judicial Member took the view that many of the circumstances relied upon by the Revenue were neutral and the others raised suspicion against the assessee but concurred in the conclusion reached by the Accountant Member on the ground that the assessee had suffered the assessment under S.144 and there was paucity of material.5. The High Court took note of all the factors mentioned in the order of the Tribunal but opined that the apparent set of things disclosed that the said amount was loan and that the burden of showing that the apparent was not real, lay heavily on the Revenue, but apart from relying on certain circumstances no material was brought on record by the Revenue to hold that the said amount was income from business. 6. Mr. K. N. Shukla, learned counsel for the appellant Revenue, argued that the High Court erred in arriving at its own finding of fact and that unless the findings recorded by the Tribunal were perverse the High Court ought not to have interfered with the findings of facts. In our view the submission is too broad to merit acceptance. There cannot be any doubt that High Court will not address itself to recording findings of facts unless the subject matter of the question referred to it by the Tribunal, either under sub-s.(1) or sub-s.(2) of S.256 of the Income tax Act, relates to the perversity of the findings arrived at by the Tribunal. That sort of question has to be distinguished from a mixed question of facts and law, which also requires consideration and discussion of facts but does not warrant returning findings of facts inconsistent with the findings recorded by the Tribunal while giving its opinion on the question referred to the High Court. In answering the question, in this case, the High Court had to deal with various facts on record to determine whether the amount in question was loan or income. If such discussion of facts has led to arriving at the conclusion that the amount was loan but not income. It cannot be urged that the High Court disturbed the finding of fact recorded by the Tribunal. 7. Here the Tribunal did not find any material to record specific finding that the amount in question is in the nature of commission paid by Parsons and Whittemore to the assessee; it took note of the fact that the loan was advanced by agreement dated November 15, 1958 and that the Reserve Bank of India had accorded permission for obtaining the loan; it has also taken into consideration an earlier memorandum of understanding between the assessee and the representative of foreign Creditor, of July 19, 1957, recording that the proposal to grant loan would materialise along with implementation of other agreements to be entered into with the Paper Mills Limited. The High Court in regard to the loan agreement dated November 15, 1958, observed that the agreement provided that the amount would be utilised for purposes of purchasing shares in the said Paper Mills and that the shares were accordingly purchased and they were treated as belonging to the assessee - company. The High Court also referred to a letter of the foreign Creditor addressed to the Income tax Officer in November 1970 in response to his query letter and opined that the Foreign Collaborator maintained that the transaction was loan as late as in November 1970. It also noticed the reasoning of the Revenue as reflected in the orders of the Income tax Officer and the Appellate Assistant Commissioner. The High Court is also justified in its comment that without recording any finding that the amount was commission or business receipt, the Tribunal was not justified in coming to the conclusion that it could be assessed as income. In our view the High Court has rightly held that the circumstances taken singly or cumulatively did not justify conclusion that the amount was not received as loan as it purported to be but was anything in the nature of commission or any receipt of business. In arriving at the conclusion to which it did, it was necessary for the High Court to refer to the facts and discuss them to answer the mixed question of facts and law and that is what the High Court had done.8. The facts on record apparently indicate that the transaction was one of loan. The circumstances relied upon by the Revenue, namely, that the loan had been advanced without security, that the loan had not been repaid and no interest on the loan was paid by the assessee and that the agreement of loan was executed contemporaneously with other two agreements with regard to supply of machine and construction of building for the Paper Mill cannot, without any further material, lead to the inference that the amount was not loan but business income. It appears to us that the last mentioned circumstance supports the plea of the assessee that the said amount was received as loan. For the aforementioned reasons we do not find any illegality in judgment of the High Court under appeal. 9.
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In our view the submission is too broad to merit acceptance. There cannot be any doubt that High Court will not address itself to recording findings of facts unless the subject matter of the question referred to it by the Tribunal, either under sub-s.(1) or sub-s.(2) of S.256 of the Income tax Act, relates to the perversity of the findings arrived at by the Tribunal. That sort of question has to be distinguished from a mixed question of facts and law, which also requires consideration and discussion of facts but does not warrant returning findings of facts inconsistent with the findings recorded by the Tribunal while giving its opinion on the question referred to the High Court. In answering the question, in this case, the High Court had to deal with various facts on record to determine whether the amount in question was loan or income. If such discussion of facts has led to arriving at the conclusion that the amount was loan but not income. It cannot be urged that the High Court disturbed the finding of fact recorded by theHigh Court is also justified in its comment that without recording any finding that the amount was commission or business receipt, the Tribunal was not justified in coming to the conclusion that it could be assessed as income. In our view the High Court has rightly held that the circumstances taken singly or cumulatively did not justify conclusion that the amount was not received as loan as it purported to be but was anything in the nature of commission or any receipt of business. In arriving at the conclusion to which it did, it was necessary for the High Court to refer to the facts and discuss them to answer the mixed question of facts and law and that is what the High Court had done.8. The facts on record apparently indicate that the transaction was one of loan. The circumstances relied upon by the Revenue, namely, that the loan had been advanced without security, that the loan had not been repaid and no interest on the loan was paid by the assessee and that the agreement of loan was executed contemporaneously with other two agreements with regard to supply of machine and construction of building for the Paper Mill cannot, without any further material, lead to the inference that the amount was not loan but business income. It appears to us that the last mentioned circumstance supports the plea of the assessee that the said amount was received as loan. For the aforementioned reasons we do not find any illegality in judgment of the High Court under appeal.
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KAPICO KERALA RESORTS PVT.LTD Vs. STATE OF KERALA | Vembanad lake is included as a CVCA, subject to a process, the Court has to take a view which serves the object of the area being treated as ecologically sensitive and hence a CVCA. It is with particular reference to this finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA. 33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court. Alternative Submissions 34. Dr. A. M. Singhvi, learned senior counsel for the appellants, made two alternative submissions without prejudice. The first is that by a notification dated 14.03.2017, a window of opportunity akin to regularisation has been provided to those who made developments without complying with statutory requirements. According to him, the appellants availed this opportunity and the Terms of Reference were granted on 05.04.2018. KCZMA also considered the application of the Petitioner in its meeting held on 07.07.2018 and took a decision to inform the MOEF of the complete details of the case. Therefore, it was contended by the learned senior counsel that the appellants should be allowed at least the benefit of the said notification. 35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification appears to be to address the issue as to how to deal with the projects and activities carried out without obtaining prior environmental clearance. The Notification seeks to declare the projects and activities requiring prior environmental clearance under EIA Notification, 2006, but carried out without obtaining such clearance, as cases of violation of the EIA Notification, 2006 and it seeks to provide an opportunity to those violators to avail the benefit of a one-time clearance. The Notification dated 14.03.2017 does not deal with cases of violation of CRZ Notifications. Therefore, we cannot say anything on the application of the appellants under the said Notification. In any case, the issue does not arise out of the lis before us. 36. The second alternative prayer made by the appellants without prejudice, is on the basis of the CRZ Notification 2019 issued on 18.01.2019. According to the learned senior counsel for the appellants, the 2019 notification permits construction and operation, so long as it is 20 meters from the HTL. According to the appellants, even if all the constructions put up by them are now demolished, the appellants will be entitled to build once again, approximately 60 per cent of the area covered by the existing superstructures. 37. But the above argument does not carry any weight. Paragraph 10.2 of the CRZ 2019 Notification states that all inland islands in the coastal backwaters and islands along the mainland coast shall be covered by the Notification. It further states that in view of the unique coastal systems of backwater islands and islands along the mainland coast, along with space limitations in such coastal stretches, CRZ of 20 meters from the HTL on the landward side shall uniformly apply. However, paragraph 10.2(ii) states that activities shall be regulated as under: (a) existing dwelling units of local communities may be repaired or reconstructed within 20 meters from the HTL of these islands, but no new construction shall be permitted in this zone; (b) foreshore facilities such as fishing jetty, fish drying yards, net mending yard, fishing processing by traditional methods, boat building yards, ice plant, boat repairs and the like maybe taken up in CRZ limits subject to environmental safeguards. 38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk. 39. Therefore, for the appellants, the situation has gone from bad to worse. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher, etc. Guidelines are to be put in place for identifying, notifying and implementing CVCA but 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore, the alternatives claimed by the appellants also do not appear to be viable for them. | 0[ds]19. In the light of the rival contentions, it is necessary for us to first deal with the preliminary issue, keeping in mind the fact that the judgment in Vaamika island is not under review before us. The correctness of the view expressed therein, has not been doubted and a reference made to us. Therefore, it cannot be our endeavor to undertake a research with magnifying glasses to find out miniscule differences between the 2 sets of cases. Our endeavour can only be to find out, if the major issues raised in both cases were substantially the same. If the answer is yes, the appeals are liable to be thrown out. If no, the arguments on merits have to be considered independent of the decision in Vaamika21. In brief, the common issues formulated by the High Court in respect of both the islands are(a) Whether the islands in the backwaters of Kerala are covered under the CRZ Notification of 1991 and whether the failure to conduct salinity test as required by the amendment made in 2002, vitiated the stand of the KCZMA?(b) Whether the islands would fall under CRZ IV and what are its effect on the property rights and the doctrine of legitimate expectation?(c) Whether the identification of the island as a filtration pond, on the basis of maps drawn to the scale of 1:12,500 using satellite images without any field check, is correct?(d) Whether filtration ponds are an anathema in the light of the decision of this Court in S. Jagannath v. Union of India (supra)?(e) Whether there is any reliable material to classify the areas as filtration ponds?(f) Whether there must be island specific study?(g) Whether cadastral map is a must and its absence fatal?findings on all these issues went against the appellants as well as the proponent of the project in Vettila Thuruthu island. We have recorded the gist of those findings of the High court, in paragraph¬13 above22. As we have indicated elsewhere, the decision of this Court in Vaamika Island is sought to be distinguished on the basis of seven identifiable features, some of which, according to the appellants, are covered in the decision in Vaamika Island, only in passing reference24. It is no doubt true that the decision in Vaamika Island was rendered at the stage of special leave petitions. Obviously this Court refused leave, but went on to affirm the findings of the High Court, recording detailed reasons therefor. The opinion expressed in paragraphs 27 and 28 of Vaamika Island, does not give any room for escape even for the appellants before us. Paragraphs 27 and 28 of the decision in Vaamika Island read as follows:27. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising thesocio-economic importance of this waterbody, it has recently been scheduled under vulnerable wetlands to be protected and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the abovementioned perspective28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ Notifications are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa [(2004) 3 SCC 445] , wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned25. The appellants cannot also escape the findings recorded by this Court in other paragraphs, on the common issues. Even according to the appellants, some of those common issues, such as salinity, filtration ponds, cadastral maps, CVCA, etc. are dealt with by this Court in paragraphs 23 and 24 of the reported decision. The contention that these common issues are dealt with in passing, in the judgment of this Court and that therefore, they are entitled to be re-agitated, cannot be accepted26. If detailed reasons given by the High Court or a subordinate Court, find acceptance by this Court, in specific terms, the question of scrutinising them for finding out whether they were in the passing or in detailed focus, does not arise. Such an exercise would tantamount to reviewing the decision27. Each and every particular issue dealt with by the High Court as common to both the islands, was considered by this Court in Vaamika Island and a finding recorded. In particulari. Map Number 32A of CZMP as well as the techniques employed to ascertain whether the constructions were made in violation of CRZ 1991 as well as 2011, were found by this Court in paragraph 25, not to be suffering from any illegalityii. KCZMP was held by this Court in paragraph 23 of Vaamika to have been prepared based on the guidelines of MOEF, taking care of the maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey department of the Government of Keralaiii. It was also pointed out in paragraph 23 that the area between LTL and HTL is also CRZ I and filtration ponds are shallow water bodies and hence they fall under CRZ I as per notificationiv. In paragraph 24, this Court specifically concurred with the view of the High Court that islands could be coastal stretches of rivers or backwaters or backwater islands and that they are clearly covered by CRZ I and not under CRZ III or CRZ IVv. In paragraph 24 this Court also endorsed the view of the High Court that even before the salinity test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt which was made as per standard measurements in parts per thousandThe first distinction sought to be made by the appellants between their case and the case relating to Vettila Thuruthu is that the Building Permit issued to Vaamika was post 2011 Notification. But this distinction will not go to the rescue of the appellants, in view of the fact that the categorisation under CRZ I under the 1991 Notification was upheld by this Court and this is why this Court found the constructions made even in Vettila Thuruthu as violative of both the notifications, namely 1991 and 2011 Notifications (paragraph 24 of Vaamika Island)29. In any case, the appellants herein obtained the NOC on 02.08.1996 and the Building Permit on 10.10.2007. In paragraph 26 of its decision in Vaamika Island, this Court recorded the fact that the Director of Panchayats vide letters dated 07.03.1995 and 17.07.1996 had directed all panchayats to strictly follow the provisions of CRZ Notification and that it was found to have been violated while granting permission. This finding hits at the very root of the contention that the appellants permit will not be affected, as it was pre¬2011 Notification. In the teeth of the letters of the Director of Panchayats dated 07.03.1995 and 17.07.1996, addressed to all the panchayats, advising them to follow the provisions of CRZ Notification, the NOC and Building Permit obtained, respectively on 02.08.1996 and 10.10.2007, by the appellants were clearly illegal32. But the above contentions are already dealt with by the High Court in paragraph 120-122 of its judgment. In paragraph 121 of its judgment, the High Court recorded a specific finding that when the whole of Vembanad lake is included as a CVCA, subject to a process, the Court has to take a view which serves the object of the area being treated as ecologically sensitive and hence a CVCA. It is with particular reference to this finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification appears to be to address the issue as to how to deal with the projects and activities carried out without obtaining prior environmental clearance. The Notification seeks to declare the projects and activities requiring prior environmental clearance under EIA Notification, 2006, but carried out without obtaining such clearance, as cases of violation of the EIA Notification, 2006 and it seeks to provide an opportunity to those violators to avail the benefit of a one-time clearance. The Notification dated 14.03.2017 does not deal with cases of violation of CRZ Notifications. Therefore, we cannot say anything on the application of the appellants under the said Notification. In any case, the issue does not arise out of the lis before uslearned senior counsel for the appellants, the 2019 notification permits construction and operation, so long as it is 20 meters from the HTL. According to the appellants, even if all the constructions put up by them are now demolished, the appellants will be entitled to build once again, approximately 60 per cent of the area covered by the existing superstructures37. But the above argument does not carry any weight. Paragraph 10.2 of the CRZ 2019 Notification states that all inland islands in the coastal backwaters and islands along the mainland coast shall be covered by the Notification. It further states that in view of the unique coastal systems of backwater islands and islands along the mainland coast, along with space limitations in such coastal stretches, CRZ of 20 meters from the HTL on the landward side shall uniformly apply. However, paragraph 10.2(ii) states that activities shall be regulated as under: (a) existing dwelling units of local communities may be repaired or reconstructed within 20 meters from the HTL of these islands, but no new construction shall be permitted in this zone; (b) foreshore facilities such as fishing jetty, fish drying yards, net mending yard, fishing processing by traditional methods, boat building yards, ice plant, boat repairs and the like maybe taken up in CRZ limits subject to environmental safeguards38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk39. Therefore, for the appellants, the situation has gone from bad to worse. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher, etc. Guidelines are to be put in place for identifying, notifying and implementing CVCA but 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore, the alternatives claimed by the appellants also do not appear to be viable for them30. Both Vettila Thuruthu and Nediyathuruthu islands are admittedly backwater islands nestled in Vembanad lake. In paragraph 27 of the judgment in Vaamika Island, this Court has indicated that Vembanad lake is an ecologically sensitive area and that considering the socio-economic importance of this water body, it had been scheduled under vulnerable wetlands to be protected and declared as CVCA. We do not know how this finding can be held to be applicable only to Vettlia Thuruthu | 0 | 7,630 | 2,472 | ### 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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Vembanad lake is included as a CVCA, subject to a process, the Court has to take a view which serves the object of the area being treated as ecologically sensitive and hence a CVCA. It is with particular reference to this finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA. 33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court. Alternative Submissions 34. Dr. A. M. Singhvi, learned senior counsel for the appellants, made two alternative submissions without prejudice. The first is that by a notification dated 14.03.2017, a window of opportunity akin to regularisation has been provided to those who made developments without complying with statutory requirements. According to him, the appellants availed this opportunity and the Terms of Reference were granted on 05.04.2018. KCZMA also considered the application of the Petitioner in its meeting held on 07.07.2018 and took a decision to inform the MOEF of the complete details of the case. Therefore, it was contended by the learned senior counsel that the appellants should be allowed at least the benefit of the said notification. 35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification appears to be to address the issue as to how to deal with the projects and activities carried out without obtaining prior environmental clearance. The Notification seeks to declare the projects and activities requiring prior environmental clearance under EIA Notification, 2006, but carried out without obtaining such clearance, as cases of violation of the EIA Notification, 2006 and it seeks to provide an opportunity to those violators to avail the benefit of a one-time clearance. The Notification dated 14.03.2017 does not deal with cases of violation of CRZ Notifications. Therefore, we cannot say anything on the application of the appellants under the said Notification. In any case, the issue does not arise out of the lis before us. 36. The second alternative prayer made by the appellants without prejudice, is on the basis of the CRZ Notification 2019 issued on 18.01.2019. According to the learned senior counsel for the appellants, the 2019 notification permits construction and operation, so long as it is 20 meters from the HTL. According to the appellants, even if all the constructions put up by them are now demolished, the appellants will be entitled to build once again, approximately 60 per cent of the area covered by the existing superstructures. 37. But the above argument does not carry any weight. Paragraph 10.2 of the CRZ 2019 Notification states that all inland islands in the coastal backwaters and islands along the mainland coast shall be covered by the Notification. It further states that in view of the unique coastal systems of backwater islands and islands along the mainland coast, along with space limitations in such coastal stretches, CRZ of 20 meters from the HTL on the landward side shall uniformly apply. However, paragraph 10.2(ii) states that activities shall be regulated as under: (a) existing dwelling units of local communities may be repaired or reconstructed within 20 meters from the HTL of these islands, but no new construction shall be permitted in this zone; (b) foreshore facilities such as fishing jetty, fish drying yards, net mending yard, fishing processing by traditional methods, boat building yards, ice plant, boat repairs and the like maybe taken up in CRZ limits subject to environmental safeguards. 38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk. 39. Therefore, for the appellants, the situation has gone from bad to worse. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher, etc. Guidelines are to be put in place for identifying, notifying and implementing CVCA but 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore, the alternatives claimed by the appellants also do not appear to be viable for them.
### Response:
0
### Explanation:
of Panchayats dated 07.03.1995 and 17.07.1996, addressed to all the panchayats, advising them to follow the provisions of CRZ Notification, the NOC and Building Permit obtained, respectively on 02.08.1996 and 10.10.2007, by the appellants were clearly illegal32. But the above contentions are already dealt with by the High Court in paragraph 120-122 of its judgment. In paragraph 121 of its judgment, the High Court recorded a specific finding that when the whole of Vembanad lake is included as a CVCA, subject to a process, the Court has to take a view which serves the object of the area being treated as ecologically sensitive and hence a CVCA. It is with particular reference to this finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification appears to be to address the issue as to how to deal with the projects and activities carried out without obtaining prior environmental clearance. The Notification seeks to declare the projects and activities requiring prior environmental clearance under EIA Notification, 2006, but carried out without obtaining such clearance, as cases of violation of the EIA Notification, 2006 and it seeks to provide an opportunity to those violators to avail the benefit of a one-time clearance. The Notification dated 14.03.2017 does not deal with cases of violation of CRZ Notifications. Therefore, we cannot say anything on the application of the appellants under the said Notification. In any case, the issue does not arise out of the lis before uslearned senior counsel for the appellants, the 2019 notification permits construction and operation, so long as it is 20 meters from the HTL. According to the appellants, even if all the constructions put up by them are now demolished, the appellants will be entitled to build once again, approximately 60 per cent of the area covered by the existing superstructures37. But the above argument does not carry any weight. Paragraph 10.2 of the CRZ 2019 Notification states that all inland islands in the coastal backwaters and islands along the mainland coast shall be covered by the Notification. It further states that in view of the unique coastal systems of backwater islands and islands along the mainland coast, along with space limitations in such coastal stretches, CRZ of 20 meters from the HTL on the landward side shall uniformly apply. However, paragraph 10.2(ii) states that activities shall be regulated as under: (a) existing dwelling units of local communities may be repaired or reconstructed within 20 meters from the HTL of these islands, but no new construction shall be permitted in this zone; (b) foreshore facilities such as fishing jetty, fish drying yards, net mending yard, fishing processing by traditional methods, boat building yards, ice plant, boat repairs and the like maybe taken up in CRZ limits subject to environmental safeguards38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk39. Therefore, for the appellants, the situation has gone from bad to worse. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher, etc. Guidelines are to be put in place for identifying, notifying and implementing CVCA but 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore, the alternatives claimed by the appellants also do not appear to be viable for them30. Both Vettila Thuruthu and Nediyathuruthu islands are admittedly backwater islands nestled in Vembanad lake. In paragraph 27 of the judgment in Vaamika Island, this Court has indicated that Vembanad lake is an ecologically sensitive area and that considering the socio-economic importance of this water body, it had been scheduled under vulnerable wetlands to be protected and declared as CVCA. We do not know how this finding can be held to be applicable only to Vettlia Thuruthu
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KANWALJIT SINGH Vs. NATIONAL INSURANCE COMPANY LTD | the appellant, along with Rs.5000/- towards harassment and mental agony, plus Rs.2000/- on account of litigation expenses, along with interest @ 9% p.a. 5. Challenging the said order, the appellant herein filed an appeal before the State Consumer Disputes Redressal Commission (for short ?State Commission?), which allowed the appeal of the claimant in toto, and directed payment of the entire sum insured i.e. Rs.5,00,000/-, minus the amount already paid by the Insurance Company. Besides this, the Insurance Company was also directed to pay Rs.30,000/- as compensation for mental agony and harassment, plus Rs.10,000/- as litigation cost. 6. Aggrieved by the said order of the State Commission, the respondent–Insurance Company filed a Revision Petition No. 2295 of 2017 before the National Consumer Disputes Redressal Commission (for short ?National Commission?). By its order dated 20.07.2017, the National Commission upheld the order of the District Forum. After holding that the said Master Jasnoor Singh had pre-existing disease which was symptomatic in the year 2009, the National Commission held that the appellant herein would be entitled to 50% of the sum insured under the individual Mediclaim Policy of Master Jasnoor Singh for the year 2010-2011. Challenging the said order of the National Commission, this appeal has been filed by way of Special Leave Petition. 7. The submission of learned counsel for the appellant is that since the individual Mediclaim Policy of Master Jasnoor Singh was continuously held since 2007-2008 till the year 2014-2015 and it not being the case of the Insurance Company that at the time of taking initial individual Mediclaim Policy in the year 2007, the said Master Jasnoor Singh had any such disease, hence, the repudiation or scaling down of the claim of the appellant could not be justified. It was contended that the entire amount, as awarded by the State Commission, should be restored and this appeal be allowed. 8. Per contra, learned counsel for the respondent – Insurance Company has justified the order of the National Commission in awarding the compensation of 50% of the sum insured for the year 2010-2011, as had been awarded by the District Forum and has prayed that the present appeal be dismissed. 9. We have heard learned counsel for the parties at length and have perused the record. 10. The fact that Mediclaim Policy of Master Jasnoor Singh was continuously taken by the appellant for varying sum insured since 2007-2008 till 2014-2015 is admitted by the insurance company. It is also not disputed that at the time of taking the initial Mediclaim Policy for the year 2007-2008, the said Master Jasnoor Singh did not have any pre-existing disease. In fact, it is admitted that prior to the year 2014-2015, the appellant had been taking individual Mediclaim Policies for his family members and it was only in the year 2014-2015, at the time of renewal of the individual Mediclaim Policies, that the appellant had taken the Family Mediclaim Policy, which was effective from 07.02.2014 to 06.02.2015. It is also admitted that the said Family Mediclaim Policy was for a total sum insured amount of Rs.5,00,000/-. Under the terms of the Policy, the total expenses incurred for any one illness would be limited to 50% of the sum insured for the family. The relevant Clause under the Policy is re-produced hereunder: ?Company?s liability would, arise if the treatment of disease or injury contracted/suffered is incepted during the policy period. Total expenses incurred for any one illness is limited to 50% of Sum Insured per family. Company?s liability in respect of all claims admitted during the period of insurance shall not exceed the Sum Insured mentioned in the Schedule?. (emphasis supplied) 11. It is not disputed that the sum insured under the Family Mediclaim Policy, was Rs.5,00,000/-. From the above, it would be clear that the total medical claim for all the four members of the family during the period of commencement of the Insurance Policy (i.e. 07.02.2014 to 06.02.2015) would be Rs.5,00,000/- and for any individual claim or illness for any one member of the family, the limit would be 50% of the sum insured, which in the present case would come to Rs.2,50,000/-. Thus, at best the maximum claim which could be payable in the present case would be 50% of the sum insured under the Family Mediclaim Policy for the medical treatment of one member of the family, which was Master Jasnoor Singh. 12. It may be noticed that the claim could not have been repudiated by the Insurance Company as there was no pre-existing disease when the initial individual Mediclaim Policy of Master Jasnoor Singh was taken in the year 2007-2008. Since then the policy was regularly renewed up to the year 2014-2015. Thus in the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of Master Jasnoor Singh. Even otherwise, after having initially repudiated the claim of the appellant, the Insurance Company had itself allowed the claim to the extent of Rs.27,550/-, which amount was deposited in the account of the appellant, meaning thereby that the question of pre-existing disease in the case of the claimant was not considered to be material by the Insurance Company. 13. As we have already observed herein above, the total medical expense or claim for any one illness for any individual member of the family would be limited to 50% of the sum insured for the family. In the present case, the sum insured for the family under the Family Mediclaim Policy was Rs.5,00,000/-. Thus, in our considered view, the amount payable against the medical claim of Master Jasnoor Singh, under the policy, would be limited to the extent of Rs.2,50,000/-. Undisputedly, the medical expense incurred and claimed by the appellant for the treatment of Master Jasnoor Singh within the effective period of the policy was over Rs.8,00,000/-. As such the appellant would be entitled to a sum of Rs.2,50,000/- minus the amount already paid by the Insurance Company under the orders of the District Forum. | 1[ds]10. The fact that Mediclaim Policy of Master Jasnoor Singh was continuously taken by the appellant for varying sum insured since 2007-2008 till 2014-2015 is admitted by the insurance company. It is also not disputed that at the time of taking the initial Mediclaim Policy for the year 2007-2008, the said Master Jasnoor Singh did not have any pre-existing disease. In fact, it is admitted that prior to the year 2014-2015, the appellant had been taking individual Mediclaim Policies for his family members and it was only in the year 2014-2015, at the time of renewal of the individual Mediclaim Policies, that the appellant had taken the Family Mediclaim Policy, which was effective from 07.02.2014 to 06.02.2015. It is also admitted that the said Family Mediclaim Policy was for a total sum insured amount of Rs.5,00,000/-. Under the terms of the Policy, the total expenses incurred for any one illness would be limited to 50% of the sum insured for the family.It is not disputed that the sum insured under the Family Mediclaim Policy, was Rs.5,00,000/-. From the above, it would be clear that the total medical claim for all the four members of the family during the period of commencement of the Insurance Policy (i.e. 07.02.2014 to 06.02.2015) would be Rs.5,00,000/- and for any individual claim or illness for any one member of the family, the limit would be 50% of the sum insured, which in the present case would come to Rs.2,50,000/-. Thus, at best the maximum claim which could be payable in the present case would be 50% of the sum insured under the Family Mediclaim Policy for the medical treatment of one member of the family, which was Master Jasnoor Singh.It may be noticed that the claim could not have been repudiated by the Insurance Company as there was no pre-existing disease when the initial individual Mediclaim Policy of Master Jasnoor Singh was taken in the year 2007-2008. Since then the policy was regularly renewed up to the year 2014-2015. Thus in the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of Master Jasnoor Singh. Even otherwise, after having initially repudiated the claim of the appellant, the Insurance Company had itself allowed the claim to the extent of Rs.27,550/-, which amount was deposited in the account of the appellant, meaning thereby that the question of pre-existing disease in the case of the claimant was not considered to be material by the Insurance Company.As we have already observed herein above, the total medical expense or claim for any one illness for any individual member of the family would be limited to 50% of the sum insured for the family. In the present case, the sum insured for the family under the Family Mediclaim Policy was Rs.5,00,000/-. Thus, in our considered view, the amount payable against the medical claim of Master Jasnoor Singh, under the policy, would be limited to the extent of Rs.2,50,000/-. Undisputedly, the medical expense incurred and claimed by the appellant for the treatment of Master Jasnoor Singh within the effective period of the policy was over Rs.8,00,000/-. As such the appellant would be entitled to a sum of Rs.2,50,000/- minus the amount already paid by the Insurance Company under the orders of the District Forum. | 1 | 1,659 | 603 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the appellant, along with Rs.5000/- towards harassment and mental agony, plus Rs.2000/- on account of litigation expenses, along with interest @ 9% p.a. 5. Challenging the said order, the appellant herein filed an appeal before the State Consumer Disputes Redressal Commission (for short ?State Commission?), which allowed the appeal of the claimant in toto, and directed payment of the entire sum insured i.e. Rs.5,00,000/-, minus the amount already paid by the Insurance Company. Besides this, the Insurance Company was also directed to pay Rs.30,000/- as compensation for mental agony and harassment, plus Rs.10,000/- as litigation cost. 6. Aggrieved by the said order of the State Commission, the respondent–Insurance Company filed a Revision Petition No. 2295 of 2017 before the National Consumer Disputes Redressal Commission (for short ?National Commission?). By its order dated 20.07.2017, the National Commission upheld the order of the District Forum. After holding that the said Master Jasnoor Singh had pre-existing disease which was symptomatic in the year 2009, the National Commission held that the appellant herein would be entitled to 50% of the sum insured under the individual Mediclaim Policy of Master Jasnoor Singh for the year 2010-2011. Challenging the said order of the National Commission, this appeal has been filed by way of Special Leave Petition. 7. The submission of learned counsel for the appellant is that since the individual Mediclaim Policy of Master Jasnoor Singh was continuously held since 2007-2008 till the year 2014-2015 and it not being the case of the Insurance Company that at the time of taking initial individual Mediclaim Policy in the year 2007, the said Master Jasnoor Singh had any such disease, hence, the repudiation or scaling down of the claim of the appellant could not be justified. It was contended that the entire amount, as awarded by the State Commission, should be restored and this appeal be allowed. 8. Per contra, learned counsel for the respondent – Insurance Company has justified the order of the National Commission in awarding the compensation of 50% of the sum insured for the year 2010-2011, as had been awarded by the District Forum and has prayed that the present appeal be dismissed. 9. We have heard learned counsel for the parties at length and have perused the record. 10. The fact that Mediclaim Policy of Master Jasnoor Singh was continuously taken by the appellant for varying sum insured since 2007-2008 till 2014-2015 is admitted by the insurance company. It is also not disputed that at the time of taking the initial Mediclaim Policy for the year 2007-2008, the said Master Jasnoor Singh did not have any pre-existing disease. In fact, it is admitted that prior to the year 2014-2015, the appellant had been taking individual Mediclaim Policies for his family members and it was only in the year 2014-2015, at the time of renewal of the individual Mediclaim Policies, that the appellant had taken the Family Mediclaim Policy, which was effective from 07.02.2014 to 06.02.2015. It is also admitted that the said Family Mediclaim Policy was for a total sum insured amount of Rs.5,00,000/-. Under the terms of the Policy, the total expenses incurred for any one illness would be limited to 50% of the sum insured for the family. The relevant Clause under the Policy is re-produced hereunder: ?Company?s liability would, arise if the treatment of disease or injury contracted/suffered is incepted during the policy period. Total expenses incurred for any one illness is limited to 50% of Sum Insured per family. Company?s liability in respect of all claims admitted during the period of insurance shall not exceed the Sum Insured mentioned in the Schedule?. (emphasis supplied) 11. It is not disputed that the sum insured under the Family Mediclaim Policy, was Rs.5,00,000/-. From the above, it would be clear that the total medical claim for all the four members of the family during the period of commencement of the Insurance Policy (i.e. 07.02.2014 to 06.02.2015) would be Rs.5,00,000/- and for any individual claim or illness for any one member of the family, the limit would be 50% of the sum insured, which in the present case would come to Rs.2,50,000/-. Thus, at best the maximum claim which could be payable in the present case would be 50% of the sum insured under the Family Mediclaim Policy for the medical treatment of one member of the family, which was Master Jasnoor Singh. 12. It may be noticed that the claim could not have been repudiated by the Insurance Company as there was no pre-existing disease when the initial individual Mediclaim Policy of Master Jasnoor Singh was taken in the year 2007-2008. Since then the policy was regularly renewed up to the year 2014-2015. Thus in the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of Master Jasnoor Singh. Even otherwise, after having initially repudiated the claim of the appellant, the Insurance Company had itself allowed the claim to the extent of Rs.27,550/-, which amount was deposited in the account of the appellant, meaning thereby that the question of pre-existing disease in the case of the claimant was not considered to be material by the Insurance Company. 13. As we have already observed herein above, the total medical expense or claim for any one illness for any individual member of the family would be limited to 50% of the sum insured for the family. In the present case, the sum insured for the family under the Family Mediclaim Policy was Rs.5,00,000/-. Thus, in our considered view, the amount payable against the medical claim of Master Jasnoor Singh, under the policy, would be limited to the extent of Rs.2,50,000/-. Undisputedly, the medical expense incurred and claimed by the appellant for the treatment of Master Jasnoor Singh within the effective period of the policy was over Rs.8,00,000/-. As such the appellant would be entitled to a sum of Rs.2,50,000/- minus the amount already paid by the Insurance Company under the orders of the District Forum.
### Response:
1
### Explanation:
10. The fact that Mediclaim Policy of Master Jasnoor Singh was continuously taken by the appellant for varying sum insured since 2007-2008 till 2014-2015 is admitted by the insurance company. It is also not disputed that at the time of taking the initial Mediclaim Policy for the year 2007-2008, the said Master Jasnoor Singh did not have any pre-existing disease. In fact, it is admitted that prior to the year 2014-2015, the appellant had been taking individual Mediclaim Policies for his family members and it was only in the year 2014-2015, at the time of renewal of the individual Mediclaim Policies, that the appellant had taken the Family Mediclaim Policy, which was effective from 07.02.2014 to 06.02.2015. It is also admitted that the said Family Mediclaim Policy was for a total sum insured amount of Rs.5,00,000/-. Under the terms of the Policy, the total expenses incurred for any one illness would be limited to 50% of the sum insured for the family.It is not disputed that the sum insured under the Family Mediclaim Policy, was Rs.5,00,000/-. From the above, it would be clear that the total medical claim for all the four members of the family during the period of commencement of the Insurance Policy (i.e. 07.02.2014 to 06.02.2015) would be Rs.5,00,000/- and for any individual claim or illness for any one member of the family, the limit would be 50% of the sum insured, which in the present case would come to Rs.2,50,000/-. Thus, at best the maximum claim which could be payable in the present case would be 50% of the sum insured under the Family Mediclaim Policy for the medical treatment of one member of the family, which was Master Jasnoor Singh.It may be noticed that the claim could not have been repudiated by the Insurance Company as there was no pre-existing disease when the initial individual Mediclaim Policy of Master Jasnoor Singh was taken in the year 2007-2008. Since then the policy was regularly renewed up to the year 2014-2015. Thus in the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of Master Jasnoor Singh. Even otherwise, after having initially repudiated the claim of the appellant, the Insurance Company had itself allowed the claim to the extent of Rs.27,550/-, which amount was deposited in the account of the appellant, meaning thereby that the question of pre-existing disease in the case of the claimant was not considered to be material by the Insurance Company.As we have already observed herein above, the total medical expense or claim for any one illness for any individual member of the family would be limited to 50% of the sum insured for the family. In the present case, the sum insured for the family under the Family Mediclaim Policy was Rs.5,00,000/-. Thus, in our considered view, the amount payable against the medical claim of Master Jasnoor Singh, under the policy, would be limited to the extent of Rs.2,50,000/-. Undisputedly, the medical expense incurred and claimed by the appellant for the treatment of Master Jasnoor Singh within the effective period of the policy was over Rs.8,00,000/-. As such the appellant would be entitled to a sum of Rs.2,50,000/- minus the amount already paid by the Insurance Company under the orders of the District Forum.
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Subodh Gopal Bose Vs. Bejoy Kumar Addya & Others | indiscriminately at a time when the distinction between the meaning of the two words was not properly appreciated. That these words were so used in old documents has the support of the decision of the Calcutta High Court in Keshwar Bhagat v. Sheo Prasad (18 Cal LJ 166.).(5) As the property was situate within the Mal assets of touzi No. 6 the defendants must necessarily hold under the plaintiff and his predecessors-in-interest. Although the defendants never pleaded specifically their Nishkar title they had, however, asserted a Lakheraj interest in the property and claimed to have been in possession of the land for more than 12 years to the knowledge and without objection of the proprietors of the touzi. As such their defence amounted to an assertion of rent-free interest acquired by adverse possession.(6) The plaintiff had produced no evidence to challenge the defendants assertion that they were Nishkardars or to establish that they were ordinary tenants.(7) The defendants, who were not assessed to rent by any previous purchaser at a revenue sale, might have acquired by prescription a right to hold rent-free against the former purchaser. The right to hold land-free of rent would be an encumbrance which stood annulled because of the last revenue sale. The right to hold free of rent was gone but what remained with the defendants was a right to hold the land with a liability that rent could be assessed within a period of twelve years.(8) The plaintiff was not entitled to has possession but was only authorised to sue for assessment of rent.7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions. The said exceptions were -(a) tenures and holdings which have been held at the time of the Permanent Settlement either free of rent or at a fixed rent or fixed rate of rent, and(b)(i) tenures and holdings not included in exceptions (a) above made, and(ii) others leases of land whether or not for purpose connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act.8. Under sub-section (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly the rent-free interest of the predecessors-in-interest of the defendants was created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and the plaintiff-appellant has signally failed to discharged the said burden of proof. | 0[ds]7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions.on (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly theinterest of theof the defendantswas created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and thehas signally failed to discharged the said burden of proof. | 0 | 2,383 | 691 | ### Instruction:
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### Input:
indiscriminately at a time when the distinction between the meaning of the two words was not properly appreciated. That these words were so used in old documents has the support of the decision of the Calcutta High Court in Keshwar Bhagat v. Sheo Prasad (18 Cal LJ 166.).(5) As the property was situate within the Mal assets of touzi No. 6 the defendants must necessarily hold under the plaintiff and his predecessors-in-interest. Although the defendants never pleaded specifically their Nishkar title they had, however, asserted a Lakheraj interest in the property and claimed to have been in possession of the land for more than 12 years to the knowledge and without objection of the proprietors of the touzi. As such their defence amounted to an assertion of rent-free interest acquired by adverse possession.(6) The plaintiff had produced no evidence to challenge the defendants assertion that they were Nishkardars or to establish that they were ordinary tenants.(7) The defendants, who were not assessed to rent by any previous purchaser at a revenue sale, might have acquired by prescription a right to hold rent-free against the former purchaser. The right to hold land-free of rent would be an encumbrance which stood annulled because of the last revenue sale. The right to hold free of rent was gone but what remained with the defendants was a right to hold the land with a liability that rent could be assessed within a period of twelve years.(8) The plaintiff was not entitled to has possession but was only authorised to sue for assessment of rent.7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions. The said exceptions were -(a) tenures and holdings which have been held at the time of the Permanent Settlement either free of rent or at a fixed rent or fixed rate of rent, and(b)(i) tenures and holdings not included in exceptions (a) above made, and(ii) others leases of land whether or not for purpose connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act.8. Under sub-section (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly the rent-free interest of the predecessors-in-interest of the defendants was created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and the plaintiff-appellant has signally failed to discharged the said burden of proof.
### Response:
0
### Explanation:
7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions.on (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly theinterest of theof the defendantswas created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and thehas signally failed to discharged the said burden of proof.
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Jain Jari Stores, Madras Vs. State of Madras | sale did not fall within the proviso. The High Court observed that even though the agent of a non-resident seller who negotiated the sale and delivered the documents of title may be a dealer within the meaning of section 14-A(i) "the representative character of the agent with which he is clothed under section 14-A of the Act cannot be read into the first proviso to section 3(2) of the Act to enable" the assessee "to contend that the sale in his favour was the first sale from another dealer in the State." The High Court however assumed that the sale by the non-resident seller took place within the State of Madras and also assumed that the goods had been sold to the assessee after they were imported into the State of Madras. 6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding. 7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions. 8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions. | 1[ds]6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions. | 1 | 2,386 | 969 | ### Instruction:
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sale did not fall within the proviso. The High Court observed that even though the agent of a non-resident seller who negotiated the sale and delivered the documents of title may be a dealer within the meaning of section 14-A(i) "the representative character of the agent with which he is clothed under section 14-A of the Act cannot be read into the first proviso to section 3(2) of the Act to enable" the assessee "to contend that the sale in his favour was the first sale from another dealer in the State." The High Court however assumed that the sale by the non-resident seller took place within the State of Madras and also assumed that the goods had been sold to the assessee after they were imported into the State of Madras. 6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding. 7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions. 8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions.
### Response:
1
### Explanation:
6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions.
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Idol Of Thakurji Shri Govind Deoji Maharaj Vs. Board Of Revenue, Rajasthan, Ajmer & Others | and so, it is plainly impossible to predicate about the Idol which is the grantee in the present case that it has died at a certain time and the claims of a successor fell to be determined. That being so, it seems difficult to hold that any claim for Matmi can be made against the appellant; and that must clearly lead to the inference that no amount can be recovered from the properties belonging to the Idol on the ground that Matmi is claimable against a person who claims to be the successor of the Shebait of (or?) the appellant.7. The learned Advocate-General was unable todispute this position. He however attempted to argue that all grants pertaining to the properties of the appellant were not before the Court, and so, it may not he proper to proceed on the basis that all the properties of the appellant have been granted to the appellant in its own name. We are not impressed by this argument. We have already noticed that a specific averment was made by the appellant in paragraph 3 of its writ petition that all the State grants made to the appellant from time to time were in the name of the Idol and though the respondents did not specifically admit this averment, they pleaded that since the documents regarding the original grants were not traceable, they required the appellant to prove its case in that behalf. The appellant produced two grants and it appears from the judgment of the High Court that the matter was proceeded with on the basis that the Idol is the grantee of all the properties. That being so, we do not think it is open to the Advocate-General now to contend that some of the properties may have been granted to the Shebaits no doubt burdened with the obligation to perform the services of the Idol.8. The High Court appears to have taken the view that because a Shebait has some kind of a beneficial interest in the property of the temple, that beneficial interest itself could be treated as a State grant and it is on this basis that the High Court held that the impugned order passed by respondent No. 1 was valid. In the present case we are not concerned to enquire whether for recognising a succeeding Shebait any Matmi can be recovered by the respondent; but since the High Court has laid emphasis on the fact that the Shebait has a beneficial interest in the properties granted to the appellant, it is necessary to point out that though the Shebait by virtue of the special position attaching to Shebait under the Hindu law can claim some beneficial interest, that interest is derived not by virtue of the grant made by the State, but by virtue of the provisions of Hindu law, or custom or usage of the temple or locality where the temple is situated.In Govindalalji v. State of Rajastha, AIR 1963 SC 1638 the position of the Shebaits was incidentally considered, and the observations made by Mr. Justice Ameer Ali in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 311 : (AIR 1922 PC 123 at p.126) were cited with approval. "In almost every case" said Mr. Justice Ameer Ali,"the Mahant is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a trustee in the English sense of the term, though in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration."Therefore, it seems to us that the High Court was in error in holding that the beneficial interest of the Shebaits in the properties granted to the appellant amounted to a State grant, and so, the impugned order was perfectly valid. The incidental effect of the conclusions reached by the High Court may perhaps be taken to be that the order passed by respondent No. 1 being valid, the amount in question can be recovered from the properties of the appellant. That is why we thought it necessary to clarify the position in law on this point.9. In fact, by Civil Misc. Petition No. 1081 of 1964 it has been brought to our notice by the appellant that it had made a compensation claim because lands granted to the appellant had been resumed by the State of Rajasthan by notification No. F. (388)/ REV / 1A / 53 dated 1st January, 1959 and that an annual sum by way of annuity to the Deity had been sanctioned by the State of Rajasthan under its order dated the 24th April, 1962. This order has however, directed that the amount of Rs.15,404/14/6 which has been ordered by respondent No. 1 to be recovered by way of Matmi should be deducted and that, it is urged before us by the appellant; cannot be done. This fact clarly shows that the appellant is justified in apprehending that though the order of Matmi dues has been nominally passed against the present Shebait, it may be enforced against the properties belonging to the appellant. Since we have held that the properties granted to the appellant constitute State grants under R. 4(1), but do not become liable to pay Matmi dues under R. 4(3), we must hold that the appellants writ petition was justified inasmuch as it asked for an appropriate direction restraining the respondents and their nominees or agents from recovering the said amount from the appellants estate. Therefore, prayer made by the appellant in paragraph 16(1) of its writ petition must be allowed. Since we are not concerned with the validity of the order passed by respondent No. 1 against the present Shebait, we propose to express no opinion in regard to the merits of the prayer contained in paragraph 16(2) of the writ petition. | 1[ds]7. The learned Advocate-General was unable todispute this position. He however attempted to argue that all grants pertaining to the properties of the appellant were not before the Court, and so, it may not he proper to proceed on the basis that all the properties of the appellant have been granted to the appellant in its own name. We are not impressed by this argument. We have already noticed that a specific averment was made by the appellant in paragraph 3 of its writ petition that all the State grants made to the appellant from time to time were in the name of the Idol and though the respondents did not specifically admit this averment, they pleaded that since the documents regarding the original grants were not traceable, they required the appellant to prove its case in that behalf. The appellant produced two grants and it appears from the judgment of the High Court that the matter was proceeded with on the basis that the Idol is the grantee of all the properties. That being so, we do not think it is open to the Advocate-General now to contend that some of the properties may have been granted to the Shebaits no doubt burdened with the obligation to perform the services of the Idol.8. The High Court appears to have taken the view that because a Shebait has some kind of a beneficial interest in the property of the temple, that beneficial interest itself could be treated as a State grant and it is on this basis that the High Court held that the impugned order passed by respondent No. 1 was valid. In the present case we are not concerned to enquire whether for recognising a succeeding Shebait any Matmi can be recovered by the respondent; but since the High Court has laid emphasis on the fact that the Shebait has a beneficial interest in the properties granted to the appellant, it is necessary to point out that though the Shebait by virtue of the special position attaching to Shebait under the Hindu law can claim some beneficial interest, that interest is derived not by virtue of the grant made by the State, but by virtue of the provisions of Hindu law, or custom or usage of the temple or locality where the temple isit seems to us that the High Court was in error in holding that the beneficial interest of the Shebaits in the properties granted to the appellant amounted to a State grant, and so, the impugned order was perfectly valid. The incidental effect of the conclusions reached by the High Court may perhaps be taken to be that the order passed by respondent No. 1 being valid, the amount in question can be recovered from the properties of the appellant. That is why we thought it necessary to clarify the position in law on this point.9. In fact, by Civil Misc. Petition No. 1081 of 1964 it has been brought to our notice by the appellant that it had made a compensation claim because lands granted to the appellant had been resumed by the State of Rajasthan by notification No. F. (388)/ REV / 1A / 53 dated 1st January, 1959 and that an annual sum by way of annuity to the Deity had been sanctioned by the State of Rajasthan under its order dated the 24th April, 1962. This order has however, directed that the amount of Rs.15,404/14/6 which has been ordered by respondent No. 1 to be recovered by way of Matmi should be deducted and that, it is urged before us by the appellant; cannot be done. This fact clarly shows that the appellant is justified in apprehending that though the order of Matmi dues has been nominally passed against the present Shebait, it may be enforced against the properties belonging to the appellant. Since we have held that the properties granted to the appellant constitute State grants under R. 4(1), but do not become liable to pay Matmi dues under R. 4(3), we must hold that the appellants writ petition was justified inasmuch as it asked for an appropriate direction restraining the respondents and their nominees or agents from recovering the said amount from the appellants estate. Therefore, prayer made by the appellant in paragraph 16(1) of its writ petition must be allowed. Since we are not concerned with the validity of the order passed by respondent No. 1 against the present Shebait, we propose to express no opinion in regard to the merits of the prayer contained in paragraph 16(2) of the writdeciding the question as to whether the appellants estate is liable to pay Matmi under R. 5 it is necessary to examine the nature of this Matmi, and find out whether a claim in respect of it can be made against the appellant. We have already noticed that Matmi means mutation of the name of the successor to a State grant on the death of the last holder. It is obvious that in the case of a grant to the Idol or tempre as such there would be no question about the death of the grantee and, therefore, no question about its successor. An Idol which is juridical person is not subject to death, because the Hindu concept is that the Idol lives forever, and so, it is plainly impossible to predicate about the Idol which is the grantee in the present case that it has died at a certain time and the claims of a successor fell to be determined. That being so, it seems difficult to hold that any claim for Matmi can be made against the appellant; and that must clearly lead to the inference that no amount can be recovered from the properties belonging to the Idol on the ground that Matmi is claimable against a person who claims to be the successor of the Shebait of (or?) the appellant. | 1 | 3,137 | 1,070 | ### Instruction:
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and so, it is plainly impossible to predicate about the Idol which is the grantee in the present case that it has died at a certain time and the claims of a successor fell to be determined. That being so, it seems difficult to hold that any claim for Matmi can be made against the appellant; and that must clearly lead to the inference that no amount can be recovered from the properties belonging to the Idol on the ground that Matmi is claimable against a person who claims to be the successor of the Shebait of (or?) the appellant.7. The learned Advocate-General was unable todispute this position. He however attempted to argue that all grants pertaining to the properties of the appellant were not before the Court, and so, it may not he proper to proceed on the basis that all the properties of the appellant have been granted to the appellant in its own name. We are not impressed by this argument. We have already noticed that a specific averment was made by the appellant in paragraph 3 of its writ petition that all the State grants made to the appellant from time to time were in the name of the Idol and though the respondents did not specifically admit this averment, they pleaded that since the documents regarding the original grants were not traceable, they required the appellant to prove its case in that behalf. The appellant produced two grants and it appears from the judgment of the High Court that the matter was proceeded with on the basis that the Idol is the grantee of all the properties. That being so, we do not think it is open to the Advocate-General now to contend that some of the properties may have been granted to the Shebaits no doubt burdened with the obligation to perform the services of the Idol.8. The High Court appears to have taken the view that because a Shebait has some kind of a beneficial interest in the property of the temple, that beneficial interest itself could be treated as a State grant and it is on this basis that the High Court held that the impugned order passed by respondent No. 1 was valid. In the present case we are not concerned to enquire whether for recognising a succeeding Shebait any Matmi can be recovered by the respondent; but since the High Court has laid emphasis on the fact that the Shebait has a beneficial interest in the properties granted to the appellant, it is necessary to point out that though the Shebait by virtue of the special position attaching to Shebait under the Hindu law can claim some beneficial interest, that interest is derived not by virtue of the grant made by the State, but by virtue of the provisions of Hindu law, or custom or usage of the temple or locality where the temple is situated.In Govindalalji v. State of Rajastha, AIR 1963 SC 1638 the position of the Shebaits was incidentally considered, and the observations made by Mr. Justice Ameer Ali in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, 48 Ind App 302 at p. 311 : (AIR 1922 PC 123 at p.126) were cited with approval. "In almost every case" said Mr. Justice Ameer Ali,"the Mahant is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a trustee in the English sense of the term, though in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration."Therefore, it seems to us that the High Court was in error in holding that the beneficial interest of the Shebaits in the properties granted to the appellant amounted to a State grant, and so, the impugned order was perfectly valid. The incidental effect of the conclusions reached by the High Court may perhaps be taken to be that the order passed by respondent No. 1 being valid, the amount in question can be recovered from the properties of the appellant. That is why we thought it necessary to clarify the position in law on this point.9. In fact, by Civil Misc. Petition No. 1081 of 1964 it has been brought to our notice by the appellant that it had made a compensation claim because lands granted to the appellant had been resumed by the State of Rajasthan by notification No. F. (388)/ REV / 1A / 53 dated 1st January, 1959 and that an annual sum by way of annuity to the Deity had been sanctioned by the State of Rajasthan under its order dated the 24th April, 1962. This order has however, directed that the amount of Rs.15,404/14/6 which has been ordered by respondent No. 1 to be recovered by way of Matmi should be deducted and that, it is urged before us by the appellant; cannot be done. This fact clarly shows that the appellant is justified in apprehending that though the order of Matmi dues has been nominally passed against the present Shebait, it may be enforced against the properties belonging to the appellant. Since we have held that the properties granted to the appellant constitute State grants under R. 4(1), but do not become liable to pay Matmi dues under R. 4(3), we must hold that the appellants writ petition was justified inasmuch as it asked for an appropriate direction restraining the respondents and their nominees or agents from recovering the said amount from the appellants estate. Therefore, prayer made by the appellant in paragraph 16(1) of its writ petition must be allowed. Since we are not concerned with the validity of the order passed by respondent No. 1 against the present Shebait, we propose to express no opinion in regard to the merits of the prayer contained in paragraph 16(2) of the writ petition.
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7. The learned Advocate-General was unable todispute this position. He however attempted to argue that all grants pertaining to the properties of the appellant were not before the Court, and so, it may not he proper to proceed on the basis that all the properties of the appellant have been granted to the appellant in its own name. We are not impressed by this argument. We have already noticed that a specific averment was made by the appellant in paragraph 3 of its writ petition that all the State grants made to the appellant from time to time were in the name of the Idol and though the respondents did not specifically admit this averment, they pleaded that since the documents regarding the original grants were not traceable, they required the appellant to prove its case in that behalf. The appellant produced two grants and it appears from the judgment of the High Court that the matter was proceeded with on the basis that the Idol is the grantee of all the properties. That being so, we do not think it is open to the Advocate-General now to contend that some of the properties may have been granted to the Shebaits no doubt burdened with the obligation to perform the services of the Idol.8. The High Court appears to have taken the view that because a Shebait has some kind of a beneficial interest in the property of the temple, that beneficial interest itself could be treated as a State grant and it is on this basis that the High Court held that the impugned order passed by respondent No. 1 was valid. In the present case we are not concerned to enquire whether for recognising a succeeding Shebait any Matmi can be recovered by the respondent; but since the High Court has laid emphasis on the fact that the Shebait has a beneficial interest in the properties granted to the appellant, it is necessary to point out that though the Shebait by virtue of the special position attaching to Shebait under the Hindu law can claim some beneficial interest, that interest is derived not by virtue of the grant made by the State, but by virtue of the provisions of Hindu law, or custom or usage of the temple or locality where the temple isit seems to us that the High Court was in error in holding that the beneficial interest of the Shebaits in the properties granted to the appellant amounted to a State grant, and so, the impugned order was perfectly valid. The incidental effect of the conclusions reached by the High Court may perhaps be taken to be that the order passed by respondent No. 1 being valid, the amount in question can be recovered from the properties of the appellant. That is why we thought it necessary to clarify the position in law on this point.9. In fact, by Civil Misc. Petition No. 1081 of 1964 it has been brought to our notice by the appellant that it had made a compensation claim because lands granted to the appellant had been resumed by the State of Rajasthan by notification No. F. (388)/ REV / 1A / 53 dated 1st January, 1959 and that an annual sum by way of annuity to the Deity had been sanctioned by the State of Rajasthan under its order dated the 24th April, 1962. This order has however, directed that the amount of Rs.15,404/14/6 which has been ordered by respondent No. 1 to be recovered by way of Matmi should be deducted and that, it is urged before us by the appellant; cannot be done. This fact clarly shows that the appellant is justified in apprehending that though the order of Matmi dues has been nominally passed against the present Shebait, it may be enforced against the properties belonging to the appellant. Since we have held that the properties granted to the appellant constitute State grants under R. 4(1), but do not become liable to pay Matmi dues under R. 4(3), we must hold that the appellants writ petition was justified inasmuch as it asked for an appropriate direction restraining the respondents and their nominees or agents from recovering the said amount from the appellants estate. Therefore, prayer made by the appellant in paragraph 16(1) of its writ petition must be allowed. Since we are not concerned with the validity of the order passed by respondent No. 1 against the present Shebait, we propose to express no opinion in regard to the merits of the prayer contained in paragraph 16(2) of the writdeciding the question as to whether the appellants estate is liable to pay Matmi under R. 5 it is necessary to examine the nature of this Matmi, and find out whether a claim in respect of it can be made against the appellant. We have already noticed that Matmi means mutation of the name of the successor to a State grant on the death of the last holder. It is obvious that in the case of a grant to the Idol or tempre as such there would be no question about the death of the grantee and, therefore, no question about its successor. An Idol which is juridical person is not subject to death, because the Hindu concept is that the Idol lives forever, and so, it is plainly impossible to predicate about the Idol which is the grantee in the present case that it has died at a certain time and the claims of a successor fell to be determined. That being so, it seems difficult to hold that any claim for Matmi can be made against the appellant; and that must clearly lead to the inference that no amount can be recovered from the properties belonging to the Idol on the ground that Matmi is claimable against a person who claims to be the successor of the Shebait of (or?) the appellant.
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SRI MUNISUVRATA AGRI INTERNATIONAL LTD Vs. SLEEPWELL INDUSTRIES CO. LIMITED | Dead, damaged and Discoloured Grains, the results provided by ISC were well Within the parameters foreseen for the quality under the Contract. 6.11 The Tribunal therefore FINDS THAT the quality of the cargo shipped on the three vessels was within the amended contractual specifications. 6.12. In addition to the above, the provision DI the Quality Clause 5 of GAFTA Contract No.48, being Tale Quale contract as such, states, Inter alia: Certificate of Inspection at time o/ loading –shall be final as to quality. 6.13 Consequently, and under consideration of the Payment Term of the- Contract providing for payment on receipt 01 the shipping documents, inter alia the above Pre-Shipment Certificates as issued by ISC and provided by Sellers, Sellers were duty entitled to trigger payment under the Contract. 6.14 WE THEREFORE FIND THAT Sellers claim for payment of IJSD 440.00 per metric ton all three partial shipments succeeds. 6.15 In reference with the balance of USD 10.00 per metric ton for each partial shipment, as agreed under the Amendment dated 7 th December 2010, the Amendment Provided that the Balance amount@ US$10.00 per MT will be payable after receipt of quality inspection report of destination port. 6.16 This indeed establishes an alteration to the original provision of the Contract that the quality would be final at the port of loading, at least as far as the balance of USD 10.00 per metric ton is concerned. On interpretation and construction of the Contract itself and its Amendment dated 7 th December 2010, the Tribunal notes that the Amendment itself defines in 1. Quantity that the weight in accordance with the Contract would be still final at loading while the amended payment term now states that a balance amount of US$ 10.00 per MT would only be payable after receipt of a quality inspection report of destination port. 6.17 WE THEREFORE FIND THAT the Contract had been validly altered to the provision that Sellers could only have triggered payment of the balance of USD 10.00 per metric ton after presentation of a quality inspection report from the port of destination, i.e. Bangladesh. 6.18 As no such quality Inspection had been presented by Buyers, despite various reminders from Sellers, until the present day, the GAFTA Sampling Rules No.124, cl. 6:1 provide that a certificate of analysis should be sent to the other party within 14 consecutive days after dispatch of the samples to the analyst. 6.19 Buyers in their message of 5 th February 2011 firstly explained that the quality of the cargo on the last vessel i.e. MV Tu man Gang, was inferior. 6.20 The Tribunal Therefore finds that buyers, with respect Tribunal THEREFORE FINDS THAT with respect to cl. 6:1 of the GAFTA Sampling Rules No.124 were obliged to provide a certificate of analysis Latter that message dated 5 th February 201 1 therefore latest 20 th February 2011. 6.21. The date of default shall therefore be one day later, the 21 st February 2011 and SO WE DO FIND. 6.22 As Buyers failed to forward the certificate within this limit of 14 days, any claim for rejection or for an allowance in respect of any matters dealt with under the Contract, and its Amendments. shall be deemed to be waived and absolutely barred, AND SO WE DO FIND. 6.23 THE TRIBUNAL THEREFORE FINDS THAT Sellers claim for payment of balance invoices of USD 10,00 per metric ton succeeds. 6.24 There is no apparent disputes as far as the quantity of the shipment under the contract is concerned as the contract provided for the shipment of 15000 metric tons, +¬5% in buyers option and sellers only shipped 13,729.55 metric tons. 6.25 Buyers nevertheless informed Sellers 5 th February 2011 that the original Letter of Credit as foreseen for payment under the Contract not be extended and Buyers therefore planned to establish Fresh LC for the balance quantity of 2000 ton in the old contract. 6.26 The Tribunal has not seen any new letter of credit for this purpose and as Buyers have not filed such, the Contract came to its end, 6.27 WE THEREFORE FIND THAT Sellers calculations for sums and interest due should be based on a quantity of 13,729.55 metric tons. 6.28 WE FIND AND DECLARE THAT: 1) Sellers claim for payment of balance of USD 10.00 per metric ton for each of the three shipments amounting to USD 137,148.20 succeeds. Interest to run from 29 th June 2011. The date of Buyers email stating that they would not be obliged and/or liable to pay any sum to Sellers. 2) Sellers claim for the balance of as deducted from the invoice in reference to the shipment on board of MV Tuman Gang amounting to USD 382,348.90 succeeds. Interest to run from 20 th February 2011, the date by which Buyers should have provided a quality inspection report at destination port. Buyers shall pay compound interest on the above sum of USD 137,148.20 at the rate of 4% (four per cent) per annum calculated at quarterly rests, from 29 th June 2011 to the date of payment. 7.2 Buyers shall forthwith pay to Sellers USD 382,348.90 (three hundred & eighty¬two thousand, three hundred and forty eight United States dollars and ninety cents). Buyers, shall forthwith pay to sellers USD 332,348.90 at the rate of 4% (four percent) per annum calculated at quarterly rests, from 20 th February 2011 to the date of payment. 7.3 WE THEREFORE AWARD THAT Buyers shall pay the fees, costs and expenses of this arbitration as per the attached schedule. 17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues. | 0[ds]The grounds, at best, could be urged by the petitioner in the appeal to be filed against the foreign award governed by English Laws (UK Arbitration Act, 1996). The petitioner has allowed the said awards to attain finality having failed to file such appeal. Even the argument of fraud on the basis of the allegation that the relevant documents were not brought to the notice of the Arbitral Tribunal by the respondent – award holder, is baseless and only a subterfuge for protracting the recovery of dues. In that, the respondent had produced a swift message dated 3 rd June, 2011 sent from the respondent bank to the petitioner bank and the subsequent correspondence between the parties to which reference has been made by the Arbitral Tribunal while deciding the matter. There is no allegation that the respondent concealed the stated correspondence between the parties with a view to obtain an arbitral award through fraud. The specific ground taken by the petitioner was that the award holder, with intent to deceive, perpetuated fraud on the petitioner. That is not enough to hold that the subject foreign awards were unenforceable within the meaning of Section 48 of the Act. The petitioner had sufficient notice of the arbitration proceedings but it chose not to participate in the said proceeding for reasons best known to it. Therefore, now it cannot turn around and make a grievance about non¬ consideration of any document. More so, the grievance is in the nature of inviting the Executing Court to have a second look at the award which is not the scope of Section 48 of the Act. The respondent has also refuted the ground urged on behalf of the petitioner regarding awarding of compound interest at the rate of 4% per annum calculated at quarterly rests, being in conformity with the governing laws. The respondent has also relied on the dictum in Shri Lal Mahal Ltd., (2014) 2 SCC 433 (supra) and Renusagar Power Company Ltd.,1994 Supp. (1) SCC 644 (supra). The respondent has also distinguished the judgments cited by the petitioner on the scope of interference in domestic awards on the ground of its enforceability as opposed to the foreign awards in the present cases. The respondent submits that these petitions be dismissed with exemplary costs and while doing so, appropriate directions be issued to the Registrar (OS), High Court at Calcutta to forthwith encash the FDs of approximately Rs.2 crores, in the credit of both the execution cases and forthwith remit the entire receipts, including the accrued interest in US Dollars, to the respondent, as was ordered earlier vide orders dated 5 th January, 2018, 5 th March, 2018 and 20 th April, 2018, respectively, after obtaining prior permission of the Reserve Bank of India in that regard. The respondent also seeks direction against the petitioner for securing the deficit amount, which would remain after appropriation of the amount under the FDs, lying with the Registrar (OS), Calcutta High Court. The respondent would contend that such direction is necessary in the peculiar facts of the present case and to obviate any complication due to moratorium, as the petitioner has invoked proceedings under the Insolvency and Bankruptcy CodeThe petitioner contends that on the earlier occasion, the objections were limited to the questions of maintainability of the execution case on grounds as were urged at the relevant time and not in reference to the enforceability of the subject foreign awards as such.This argument, to say the least, is an attempt to indulge in hair-splitting and nothing more. It is an argument in desperation only to protract the execution of the foreign award on untenable grounds. Indeed, the petitioner had not filed any formal application to raise the issue of maintainability of the execution case but the Court had permitted the petitioner to orally urge all available grounds. The learned Judge had then reproduced the five points, which alone were orally urged on behalf of the petitioner through its counsel, as extracted in paragraph 4 above. The High Court examined the said grounds which, obviously, were transcending in the realm of enforceability of the subject foreign awards. In the special leave petitions filed before this Court, the petitioner had articulated questions of law and the grounds also in reference to the scope of Section 48 of the Act which included the enforceability of the subject foreign awards. That can be discerned from the close reading of Questions and Grounds in the previous SLPs, reproduced in paragraph 5 above. Additionally, the learned Single Judge of the High Court vide order date 17 th March, 2015 had made it amply clear that the subject foreign awards were deemed to be decrees, which presupposes that the same were enforceable. That order came to be upheld by the Division Bench whilst disposing of the appeals preferred by the petitioner. These orders have become final and have not been challenged by the petitioner. The petitioner thereafter unsuccessfully resorted to the remedy of review before the High Court. Even the order passed in review petition has become final14. Be that as it may, the grounds urged by the petitioner in the earlier round regarding the maintainability of the execution case could not have been considered in isolation and de hors the issue of enforceability of the subject foreign awards. For, the same was intrinsically linked to the question of enforceability of the subject foreign awards. In any case, all contentions available to the petitioner in that regard could and ought to have been raised specifically and, if raised, could have been examined by the Court at that stage itself. We are of the considered opinion that the scheme of Section 48 of the Act does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by constructive res judicata, as has been justly observed by the High Court in the impugned judgment15. There is an additional reason which dissuades us to show any indulgence to the petitioner. We find force in the grievance made by the respondent that the conduct of the petitioner is indicative of an attempt to overreach this Court. For, after an interim order was passed in favour of the respondent, permitting withdrawal of part of the deposited amount, the petitioner lost no time in changing the name of the company within three days thereafter on 23 rd April, 2018. The petitioner also changed its registered office address on 26 th April, 2018 and had no compunction in moving the NCLT, Kolkata on 27 th April, 2018 to prevent the respondent from enjoying the fruits of the subject awards, and saying so brazenly in the petition filed by it under Section 10 of the I & B Code. Strikingly, attention of this Court was invited to these facts by the respondent by moving a formal application. The petitioner has not offered any explanation, much less a plausible one. On this count also, the special leave petitions deserve to be rejected16. Having said this, we do not wish to examine any other argument of the petitioner, including on merits of the enforceability of the subject foreign awards. Even if we were to do so, we would have agreed with the High Court that the grounds urged by the petitioner to question the enforceability of the subject foreign awards are untenable, not being within the purview of Section 48 of the Act. Be that as it may, we find that the High Court has considered every aspect of the grounds urged by the petitioner; and the view so expressed by the High Court in reference to each of the points considered by it is a possible view. The High Court has correctly noted the limited scope for interference in the matter of foreign awards under Section 48 of the Act, keeping in view the principles enunciated by this Court. The High Court has justly noted that the attempt of the petitioner was to call upon the executing court to have a re-look at the award. That cannot be countenanced. We would also agree with the High Court that all the relevant documents submitted to buttress the claim of the respondent before the Arbitral Tribunal, have been adverted to in the award and the findings reached in the award are based on the interpretation and meaning given to the said documents. That can be discerned from the discussion and findings recorded by the Arbitral Tribunal in the award under consideration.17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues. | 0 | 9,771 | 1,771 | ### 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:
Dead, damaged and Discoloured Grains, the results provided by ISC were well Within the parameters foreseen for the quality under the Contract. 6.11 The Tribunal therefore FINDS THAT the quality of the cargo shipped on the three vessels was within the amended contractual specifications. 6.12. In addition to the above, the provision DI the Quality Clause 5 of GAFTA Contract No.48, being Tale Quale contract as such, states, Inter alia: Certificate of Inspection at time o/ loading –shall be final as to quality. 6.13 Consequently, and under consideration of the Payment Term of the- Contract providing for payment on receipt 01 the shipping documents, inter alia the above Pre-Shipment Certificates as issued by ISC and provided by Sellers, Sellers were duty entitled to trigger payment under the Contract. 6.14 WE THEREFORE FIND THAT Sellers claim for payment of IJSD 440.00 per metric ton all three partial shipments succeeds. 6.15 In reference with the balance of USD 10.00 per metric ton for each partial shipment, as agreed under the Amendment dated 7 th December 2010, the Amendment Provided that the Balance amount@ US$10.00 per MT will be payable after receipt of quality inspection report of destination port. 6.16 This indeed establishes an alteration to the original provision of the Contract that the quality would be final at the port of loading, at least as far as the balance of USD 10.00 per metric ton is concerned. On interpretation and construction of the Contract itself and its Amendment dated 7 th December 2010, the Tribunal notes that the Amendment itself defines in 1. Quantity that the weight in accordance with the Contract would be still final at loading while the amended payment term now states that a balance amount of US$ 10.00 per MT would only be payable after receipt of a quality inspection report of destination port. 6.17 WE THEREFORE FIND THAT the Contract had been validly altered to the provision that Sellers could only have triggered payment of the balance of USD 10.00 per metric ton after presentation of a quality inspection report from the port of destination, i.e. Bangladesh. 6.18 As no such quality Inspection had been presented by Buyers, despite various reminders from Sellers, until the present day, the GAFTA Sampling Rules No.124, cl. 6:1 provide that a certificate of analysis should be sent to the other party within 14 consecutive days after dispatch of the samples to the analyst. 6.19 Buyers in their message of 5 th February 2011 firstly explained that the quality of the cargo on the last vessel i.e. MV Tu man Gang, was inferior. 6.20 The Tribunal Therefore finds that buyers, with respect Tribunal THEREFORE FINDS THAT with respect to cl. 6:1 of the GAFTA Sampling Rules No.124 were obliged to provide a certificate of analysis Latter that message dated 5 th February 201 1 therefore latest 20 th February 2011. 6.21. The date of default shall therefore be one day later, the 21 st February 2011 and SO WE DO FIND. 6.22 As Buyers failed to forward the certificate within this limit of 14 days, any claim for rejection or for an allowance in respect of any matters dealt with under the Contract, and its Amendments. shall be deemed to be waived and absolutely barred, AND SO WE DO FIND. 6.23 THE TRIBUNAL THEREFORE FINDS THAT Sellers claim for payment of balance invoices of USD 10,00 per metric ton succeeds. 6.24 There is no apparent disputes as far as the quantity of the shipment under the contract is concerned as the contract provided for the shipment of 15000 metric tons, +¬5% in buyers option and sellers only shipped 13,729.55 metric tons. 6.25 Buyers nevertheless informed Sellers 5 th February 2011 that the original Letter of Credit as foreseen for payment under the Contract not be extended and Buyers therefore planned to establish Fresh LC for the balance quantity of 2000 ton in the old contract. 6.26 The Tribunal has not seen any new letter of credit for this purpose and as Buyers have not filed such, the Contract came to its end, 6.27 WE THEREFORE FIND THAT Sellers calculations for sums and interest due should be based on a quantity of 13,729.55 metric tons. 6.28 WE FIND AND DECLARE THAT: 1) Sellers claim for payment of balance of USD 10.00 per metric ton for each of the three shipments amounting to USD 137,148.20 succeeds. Interest to run from 29 th June 2011. The date of Buyers email stating that they would not be obliged and/or liable to pay any sum to Sellers. 2) Sellers claim for the balance of as deducted from the invoice in reference to the shipment on board of MV Tuman Gang amounting to USD 382,348.90 succeeds. Interest to run from 20 th February 2011, the date by which Buyers should have provided a quality inspection report at destination port. Buyers shall pay compound interest on the above sum of USD 137,148.20 at the rate of 4% (four per cent) per annum calculated at quarterly rests, from 29 th June 2011 to the date of payment. 7.2 Buyers shall forthwith pay to Sellers USD 382,348.90 (three hundred & eighty¬two thousand, three hundred and forty eight United States dollars and ninety cents). Buyers, shall forthwith pay to sellers USD 332,348.90 at the rate of 4% (four percent) per annum calculated at quarterly rests, from 20 th February 2011 to the date of payment. 7.3 WE THEREFORE AWARD THAT Buyers shall pay the fees, costs and expenses of this arbitration as per the attached schedule. 17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues.
### Response:
0
### Explanation:
any formal application to raise the issue of maintainability of the execution case but the Court had permitted the petitioner to orally urge all available grounds. The learned Judge had then reproduced the five points, which alone were orally urged on behalf of the petitioner through its counsel, as extracted in paragraph 4 above. The High Court examined the said grounds which, obviously, were transcending in the realm of enforceability of the subject foreign awards. In the special leave petitions filed before this Court, the petitioner had articulated questions of law and the grounds also in reference to the scope of Section 48 of the Act which included the enforceability of the subject foreign awards. That can be discerned from the close reading of Questions and Grounds in the previous SLPs, reproduced in paragraph 5 above. Additionally, the learned Single Judge of the High Court vide order date 17 th March, 2015 had made it amply clear that the subject foreign awards were deemed to be decrees, which presupposes that the same were enforceable. That order came to be upheld by the Division Bench whilst disposing of the appeals preferred by the petitioner. These orders have become final and have not been challenged by the petitioner. The petitioner thereafter unsuccessfully resorted to the remedy of review before the High Court. Even the order passed in review petition has become final14. Be that as it may, the grounds urged by the petitioner in the earlier round regarding the maintainability of the execution case could not have been considered in isolation and de hors the issue of enforceability of the subject foreign awards. For, the same was intrinsically linked to the question of enforceability of the subject foreign awards. In any case, all contentions available to the petitioner in that regard could and ought to have been raised specifically and, if raised, could have been examined by the Court at that stage itself. We are of the considered opinion that the scheme of Section 48 of the Act does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by constructive res judicata, as has been justly observed by the High Court in the impugned judgment15. There is an additional reason which dissuades us to show any indulgence to the petitioner. We find force in the grievance made by the respondent that the conduct of the petitioner is indicative of an attempt to overreach this Court. For, after an interim order was passed in favour of the respondent, permitting withdrawal of part of the deposited amount, the petitioner lost no time in changing the name of the company within three days thereafter on 23 rd April, 2018. The petitioner also changed its registered office address on 26 th April, 2018 and had no compunction in moving the NCLT, Kolkata on 27 th April, 2018 to prevent the respondent from enjoying the fruits of the subject awards, and saying so brazenly in the petition filed by it under Section 10 of the I & B Code. Strikingly, attention of this Court was invited to these facts by the respondent by moving a formal application. The petitioner has not offered any explanation, much less a plausible one. On this count also, the special leave petitions deserve to be rejected16. Having said this, we do not wish to examine any other argument of the petitioner, including on merits of the enforceability of the subject foreign awards. Even if we were to do so, we would have agreed with the High Court that the grounds urged by the petitioner to question the enforceability of the subject foreign awards are untenable, not being within the purview of Section 48 of the Act. Be that as it may, we find that the High Court has considered every aspect of the grounds urged by the petitioner; and the view so expressed by the High Court in reference to each of the points considered by it is a possible view. The High Court has correctly noted the limited scope for interference in the matter of foreign awards under Section 48 of the Act, keeping in view the principles enunciated by this Court. The High Court has justly noted that the attempt of the petitioner was to call upon the executing court to have a re-look at the award. That cannot be countenanced. We would also agree with the High Court that all the relevant documents submitted to buttress the claim of the respondent before the Arbitral Tribunal, have been adverted to in the award and the findings reached in the award are based on the interpretation and meaning given to the said documents. That can be discerned from the discussion and findings recorded by the Arbitral Tribunal in the award under consideration.17. Suffice it to observe that the Arbitral Tribunal has considered all aspects of the matter and even if it has committed any error, the same could, at best, be a matter for correction by way of appeal to be resorted to on grounds as may be permissible under the English Law, by which the subject arbitration proceedings are governed. We may not be understood to have expressed any opinion on the correctness of those issues.
|
State Of Bihar Vs. Steel City Beverages | in respect of sale of goods manufactured by new industrial units and existing industrial units under expansion. The deferment is limited to 90 per cent of the fixed capital investment in fixed capital assets at the time of grant of eligibility in the case of new industrial units and 90 per cent of the additional fixed capital investment in the case of an existing industrial unit undertaking expansion. For claiming the benefit of deferred payment, an eligible unit has to apply for a certificate of eligibility. The District Level Committee or the State Level Committee, as the case may be, adjudges the eligibility of the industrial unit. An application for grant of eligibility certificate made by a small-scale industrial unit is required to be considered by the District Level Committee of the district in which the industrial unit is situated. The District Level Committee, after considering the report prepared by the District Industries Centre or the Director of Industries and any other relevant information, decides whether and to what extent the industrial unit is entitled to the benefit of deferment. The extent of benefit is partly made dependent upon the Fixed Capital Investment made by the industrial unit and also upon its status viz. whether it is a large scale industrial unit or a small-seals industrial unit, As disclosed by the industrial policy and the Deferment Rules, the State agrees to suffer temporary loss of revenue by not requiring immediate payment of sales-tax on sale of goods produced or manufactured by an industrial unit if it makes new fixed capital investment in the State. What the State desires and what the Deferment Rules require for getting the benefit thereunder, is not capital investment but fixed capital investment. Rule 2(v) defines fixed capital investment to mean investment in land, building, plant and machinery. Thus, the nature of investment contemplated by the Deferment Rules is investment in fixed assets which are ordinarily considered essential for production or manufacture of goods and have some degree of permanency. The second proviso to Rule 3 makes this position further clear. It states that "Deferment shall be limited to 90 per cent of the fixed capital investment in fixed capital assets". To explain how in business accounting "fixed capital" and "fixed assets" are understood, Mr. Singh, learned counsel for the State, drew our attention to the book titled "Advanced Accounting" by Jamshed R. Batliboi. Therein, it is stated that "fixed capital of a business consists of its fixed assets" and "fixed assets are those which are acquired and intended to be retained permanently for the purpose of carrying on a business, such as land, buildings, plant and machinery etc. Therefore, the context in which the word plant is used in Rule 2(v) indicates that it is not used in its wider sense and does not include within its meaning land, building and machinery. It also appears that the rule-making authority did not intend plant to mean what is not a fixed asset. For all these reasons, we are of the view that by plant what is intended by the rule-making authority is that apparatus which is used by the industry for carrying on its industrial process of manufacture. In respect of an industry manufacturing soft-drinks and beverages, it can be said that plant would mean that apparatus which is used for manufacturing soft-drinks or beverages and not articles like crates and bottles used for storing the manufactured product.It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2.4.1991 and 1.1.1993 issued under Section 11-B of the Industries (Development &Regulation) Act, 1951. Notification No.232 dated 2.4.1991 while staling what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs.60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2.4.1991 and clarified by adding Note No.2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8.5.1995, the Government of India again issued a Circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machinery. 3. As pointed out in the affidavit in rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small scale industry. It is, in fact, registered as a small scale industrial unit. While declaring Its investment at the time of seeking registration as a smallscale industrial unit it did not include investment in bottles and crates under the head Plant and Machinery. The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head Plant then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI Unit and, therefore, it was bound to take into account the above referred two notifications of years 1991 and 1993 if under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law. 4. | 1[ds]The extent of benefit is partly made dependent upon the Fixed Capital Investment made by the industrial unit and also upon its status viz. whether it is a large scale industrial unit or a small-seals industrial unit, As disclosed by the industrial policy and the Deferment Rules, the State agrees to suffer temporary loss of revenue by not requiring immediate payment of sales-tax on sale of goods produced or manufactured by an industrial unit if it makes new fixed capital investment in the State. What the State desires and what the Deferment Rules require for getting the benefit thereunder, is not capital investment but fixed capital investment. Rule 2(v) defines fixed capital investment to mean investment in land, building, plant and machinery. Thus, the nature of investment contemplated by the Deferment Rules is investment in fixed assets which are ordinarily considered essential for production or manufacture of goods and have some degree of permanency. The second proviso to Rule 3 makes this position further clear. It states that "Deferment shall be limited to 90 per cent of the fixed capital investment in fixed capital assets". To explain how in business accounting "fixed capital" and "fixed assets" are understood, Mr. Singh, learned counsel for the State, drew our attention to the book titled "Advanced Accounting" by Jamshed R. Batliboi. Therein, it is stated that "fixed capital of a business consists of its fixed assets" and "fixed assets are those which are acquired and intended to be retained permanently for the purpose of carrying on a business, such as land, buildings, plant and machinery etc. Therefore, the context in which the word plant is used in Rule 2(v) indicates that it is not used in its wider sense and does not include within its meaning land, building and machinery. It also appears that the rule-making authority did not intend plant to mean what is not a fixed asset. For all these reasons, we are of the view that by plant what is intended by the rule-making authority is that apparatus which is used by the industry for carrying on its industrial process of manufacture. In respect of an industry manufacturing soft-drinks and beverages, it can be said that plant would mean that apparatus which is used for manufacturing soft-drinks or beverages and not articles like crates and bottles used for storing the manufactured product.It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2.4.1991 and 1.1.1993 issued under Section 11-B of the Industries (Development &Regulation) Act, 1951. Notification No.232 dated 2.4.1991 while staling what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs.60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2.4.1991 and clarified by adding Note No.2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8.5.1995, the Government of India again issued a Circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machineryAs pointed out in the affidavit in rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small scale industry. It is, in fact, registered as a small scale industrial unit. While declaring Its investment at the time of seeking registration as a smallscale industrial unit it did not include investment in bottles and crates under the head Plant and Machinery. The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head Plant then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI Unit and, therefore, it was bound to take into account the above referred two notifications of years 1991 and 1993 if under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law. | 1 | 2,466 | 897 | ### 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:
in respect of sale of goods manufactured by new industrial units and existing industrial units under expansion. The deferment is limited to 90 per cent of the fixed capital investment in fixed capital assets at the time of grant of eligibility in the case of new industrial units and 90 per cent of the additional fixed capital investment in the case of an existing industrial unit undertaking expansion. For claiming the benefit of deferred payment, an eligible unit has to apply for a certificate of eligibility. The District Level Committee or the State Level Committee, as the case may be, adjudges the eligibility of the industrial unit. An application for grant of eligibility certificate made by a small-scale industrial unit is required to be considered by the District Level Committee of the district in which the industrial unit is situated. The District Level Committee, after considering the report prepared by the District Industries Centre or the Director of Industries and any other relevant information, decides whether and to what extent the industrial unit is entitled to the benefit of deferment. The extent of benefit is partly made dependent upon the Fixed Capital Investment made by the industrial unit and also upon its status viz. whether it is a large scale industrial unit or a small-seals industrial unit, As disclosed by the industrial policy and the Deferment Rules, the State agrees to suffer temporary loss of revenue by not requiring immediate payment of sales-tax on sale of goods produced or manufactured by an industrial unit if it makes new fixed capital investment in the State. What the State desires and what the Deferment Rules require for getting the benefit thereunder, is not capital investment but fixed capital investment. Rule 2(v) defines fixed capital investment to mean investment in land, building, plant and machinery. Thus, the nature of investment contemplated by the Deferment Rules is investment in fixed assets which are ordinarily considered essential for production or manufacture of goods and have some degree of permanency. The second proviso to Rule 3 makes this position further clear. It states that "Deferment shall be limited to 90 per cent of the fixed capital investment in fixed capital assets". To explain how in business accounting "fixed capital" and "fixed assets" are understood, Mr. Singh, learned counsel for the State, drew our attention to the book titled "Advanced Accounting" by Jamshed R. Batliboi. Therein, it is stated that "fixed capital of a business consists of its fixed assets" and "fixed assets are those which are acquired and intended to be retained permanently for the purpose of carrying on a business, such as land, buildings, plant and machinery etc. Therefore, the context in which the word plant is used in Rule 2(v) indicates that it is not used in its wider sense and does not include within its meaning land, building and machinery. It also appears that the rule-making authority did not intend plant to mean what is not a fixed asset. For all these reasons, we are of the view that by plant what is intended by the rule-making authority is that apparatus which is used by the industry for carrying on its industrial process of manufacture. In respect of an industry manufacturing soft-drinks and beverages, it can be said that plant would mean that apparatus which is used for manufacturing soft-drinks or beverages and not articles like crates and bottles used for storing the manufactured product.It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2.4.1991 and 1.1.1993 issued under Section 11-B of the Industries (Development &Regulation) Act, 1951. Notification No.232 dated 2.4.1991 while staling what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs.60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2.4.1991 and clarified by adding Note No.2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8.5.1995, the Government of India again issued a Circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machinery. 3. As pointed out in the affidavit in rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small scale industry. It is, in fact, registered as a small scale industrial unit. While declaring Its investment at the time of seeking registration as a smallscale industrial unit it did not include investment in bottles and crates under the head Plant and Machinery. The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head Plant then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI Unit and, therefore, it was bound to take into account the above referred two notifications of years 1991 and 1993 if under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law. 4.
### Response:
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### Explanation:
The extent of benefit is partly made dependent upon the Fixed Capital Investment made by the industrial unit and also upon its status viz. whether it is a large scale industrial unit or a small-seals industrial unit, As disclosed by the industrial policy and the Deferment Rules, the State agrees to suffer temporary loss of revenue by not requiring immediate payment of sales-tax on sale of goods produced or manufactured by an industrial unit if it makes new fixed capital investment in the State. What the State desires and what the Deferment Rules require for getting the benefit thereunder, is not capital investment but fixed capital investment. Rule 2(v) defines fixed capital investment to mean investment in land, building, plant and machinery. Thus, the nature of investment contemplated by the Deferment Rules is investment in fixed assets which are ordinarily considered essential for production or manufacture of goods and have some degree of permanency. The second proviso to Rule 3 makes this position further clear. It states that "Deferment shall be limited to 90 per cent of the fixed capital investment in fixed capital assets". To explain how in business accounting "fixed capital" and "fixed assets" are understood, Mr. Singh, learned counsel for the State, drew our attention to the book titled "Advanced Accounting" by Jamshed R. Batliboi. Therein, it is stated that "fixed capital of a business consists of its fixed assets" and "fixed assets are those which are acquired and intended to be retained permanently for the purpose of carrying on a business, such as land, buildings, plant and machinery etc. Therefore, the context in which the word plant is used in Rule 2(v) indicates that it is not used in its wider sense and does not include within its meaning land, building and machinery. It also appears that the rule-making authority did not intend plant to mean what is not a fixed asset. For all these reasons, we are of the view that by plant what is intended by the rule-making authority is that apparatus which is used by the industry for carrying on its industrial process of manufacture. In respect of an industry manufacturing soft-drinks and beverages, it can be said that plant would mean that apparatus which is used for manufacturing soft-drinks or beverages and not articles like crates and bottles used for storing the manufactured product.It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2.4.1991 and 1.1.1993 issued under Section 11-B of the Industries (Development &Regulation) Act, 1951. Notification No.232 dated 2.4.1991 while staling what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs.60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2.4.1991 and clarified by adding Note No.2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8.5.1995, the Government of India again issued a Circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machineryAs pointed out in the affidavit in rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small scale industry. It is, in fact, registered as a small scale industrial unit. While declaring Its investment at the time of seeking registration as a smallscale industrial unit it did not include investment in bottles and crates under the head Plant and Machinery. The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head Plant then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI Unit and, therefore, it was bound to take into account the above referred two notifications of years 1991 and 1993 if under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law.
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A. Navinchandra Steels Private Limited Vs. SREI Equipment Finance Limited & Ors | mentioned in paragraph 31 of Action Ispat (supra). 25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held: The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]: The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up. It is also summarised in Palmers Company Precedents Vol. II, page 415: Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act. (at pages 383, 384) This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12). 26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses. 27. Dr. Singhvi and Shri Ranjit Kumar have vehemently argued that SREI has suppressed the winding up proceeding in its application under Section 7 of the IBC before the NCLT and has resorted to Section 7 only as a subterfuge to avoid moving a transfer application before the High Court in the pending winding up proceeding. These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met. | 0[ds]14. Having heard learned counsel for all the parties, it is important to restate a few fundamentals. Given the object of the IBC as delineated in paragraphs 25 to 28 of Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 [Swiss Ribbons], it is clear that the IBC is a special statute dealing with revival of companies that are in the red, winding up only being resorted to in case all attempts of revival fail. Vis-à-vis the Companies Act, which is a general statute dealing with companies, including companies that are in the red, the IBC is not only a special statute which must prevail in the event of conflict, but has a non-obstante clause contained in Section 238, which makes it even clearer that in case of conflict, the provisions of the IBC will prevail.15. In Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 , this Court had to deal with whether the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 [RDB Act] was a special statute qua the Companies Act, 1956. This Court held that the Companies Act is a general Act and does not prevail against the RDB Act, which was a later Act and which has a non-obstante clause that clearly excludes the provisions of the Companies Act in case of conflict. This was stated by the Court as follows:Special law v. general law38. At the same time, some High Courts have rightly held that the Companies Act is a general Act and does not prevail under the RDB Act. They have relied upon Union of India v. India Fisheries (P) Ltd. [AIR 1966 SC 35 : (1965) 3 SCR 679 : (1965) 57 ITR 331 ].39. There can be a situation in law where the same statute is treated as a special statute vis-à-vis one legislation and again as a general statute vis-à-vis yet another legislation. Such situations do arise as held in LIC of India v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111 : AIR 1980 SC 2181 ]. It was there observed:… for certain cases, an Act may be general and for certain other purposes, it may be special and the court cannot blur a distinction when dealing with the finer points of law.For example, a Rent Control Act may be a special statute as compared to the Code of Civil Procedure. But vis-à-vis an Act permitting eviction from public premises or some special class of buildings, the Rent Control Act may be a general statute. In fact in Damji Valji Shah v. LIC of India [AIR 1966 SC 135 : (1965) 3 SCR 665 ] (already referred to), this Court has observed that vis-à-vis the LIC Act, 1956, the Companies Act, 1956 can be treated as a general statute. This is clear from para 19 of that judgment. It was observed:Further, the provisions of the special Act, i.e., the LIC Act, will override the provisions of the general Act, viz., the Companies Act which is an Act relating to companies in general.(emphasis in original)Thus, some High Courts rightly treated the Companies Act as a general statute, and the RDB Act as a special statute overriding the general statute.Special law v. special law40. Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely, Section 34. A similar situation arose in Maharashtra Tubes Ltd. v. State Industrial and Investment Corpn. of Maharashtra Ltd. [(1993) 2 SCC 144] where there was inconsistency between two special laws, the Finance Corporation Act, 1951 and the Sick Industries Companies (Special Provisions) Act, 1985. The latter contained Section 32 which gave overriding effect to its provisions and was held to prevail over the former. It was pointed out by Ahmadi, J. that both special statutes contained non obstante clauses but that the1985 Act being a subsequent enactment, the non obstante clause therein would ordinarily prevail over the non obstante clause in Section 46-B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 Act is a special one. (SCC p. 157, para 9)Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies Act, to the extent there is anything inconsistent between the Acts.17. In Madras Petrochem Ltd. v. BIFR, (2016) 4 SCC 1 , this Court had to deal with whether a predecessor statute to the IBC, which has been repealed by the IBC, namely, the Sick Industrial Companies (Special Provisions) Act, 1985, prevails over the SARFAESI Act to the extent of inconsistency therewith. This Court noted that in the case of two statutes which contain non-obstante clauses, the later Act will normally prevail, holding:36. A conspectus of the aforesaid decisions shows that the Sick Industrial Companies (Special Provisions) Act, 1985 prevails in all situations where there are earlier enactments with non obstante clauses similar to the Sick Industrial Companies (Special Provisions) Act, 1985. Where there are later enactments with similar non obstante clauses, the Sick Industrial Companies (Special Provisions) Act, 1985 has been held to prevail only in a situation where the reach of the non obstante clause in the later Act is limited—such as in the case of the Arbitration and Conciliation Act, 1996—or in the case of the later Act expressly yielding to the Sick Industrial Companies (Special Provisions) Act, 1985, as in the case of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Where such is not the case, as in the case of Special Courts Act, 1992, it is the Special Courts Act, 1992 which was held to prevail over the Sick Industrial Companies (Special Provisions) Act, 1985.37. We have now to undertake an analysis of the Acts in question. The first thing to be noticed is the difference between Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not include the Sick Industrial Companies (Special Provisions) Act, 1985 unlike Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Section 37 of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 states that the said Act shall be in addition to and not in derogation of four Acts, namely, the Companies Act, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It is clear that the first three Acts deal with securities generally and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 deals with recovery of debts due to banks and financial institutions. Interestingly, Section 41 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes amendments in three Acts—the Companies Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) Act, 1985. It is of great significance that only the first two Acts are included in Section 37 and not the third i.e. the Sick Industrial Companies (Special Provisions) Act, 1985. This is for the obvious reason that the framers of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 intended that the Sick Industrial Companies (Special Provisions) Act, 1985 be covered by the non obstante clause contained in Section 35, and not by the exception thereto carved out by Section 37. Further, whereas the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is expressly mentioned in Section 37, the Sick Industrial Companies (Special Provisions) Act, 1985 is not, making the above position further clear. And this is in stark contrast, as has been stated above, to Section 34(2) of the Recovery of Debts Due to Banksand FinancialInstitutions Act, 1993, which expressly included the Sick Industrial Companies (Special Provisions) Act, 1985. The new legislative scheme qua recovery of debts contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has, therefore, to be given precedence over the Sick Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for recovery of debts contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.18. Indeed, this position has been echoed in several judgments of this Court. In Jaipur Metals & Electricals Employees Organization v. Jaipur Metals & Electricals Ltd., (2019) 4 SCC 227 [Jaipur Metals], this Court, in dealing with whether proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 were to be transferred to the NCLT under the IBC, held:19. However, this does not end the matter. It is clear that Respondent 3 has filed a Section 7 application under the Code on 11-1-2018, on which an order has been passed admitting such application by NCLT on 13-4-2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding-up proceedings before the High Court. It was open for Respondent 3 at any time before a winding-up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows:238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.20. Shri Daves ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule to the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule to the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. NCLT proceedings will now continue from the stage at which they have been left off. Obviously, the company petition pending before the High Court cannot be proceeded with further in view of Section 238 of the Code. The writ petitions that are pending before the High Court have also to be disposed of in light of the fact that proceedings under the Code must run their entire course. We, therefore, allow the appeal and set aside the High Courts judgment [Jaipur Metals and Electricals Ltd., In re, 2018 SCC OnLine Raj 1472].20. In Duncans Industries Ltd. v. AJ Agrochem, (2019) 9 SCC 725 , this Court was faced with a situation of conflict between Section 16-G(1)(c) of the Tea Act, 1953, under which winding up/liquidation proceedings were to take place (and which could not take place without prior consent of the Central Government), and a proceeding initiated under Section 9 of the IBC. After relying upon the judgment of this Court in Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Swiss Ribbons (supra), this Court held:7.4. Section 16-G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons (P) Ltd. [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 : AIR 2019 SC 739 ], referred to hereinabove, the primary focus of the legislation while enacting IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire corporate insolvency resolution process as such cannot be equated with winding up proceedings. Therefore, considering Section 238 IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of IBC shall have an overriding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 IBC, the consent of the Central Government as provided under Section 16-G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of IBC, namely, to complete the corporate insolvency resolution process in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of IBC would have an overriding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 IBC initiated by the operational creditor shall be maintainable.22. In Action Ispat (supra), this Court was faced with a proceeding in which a winding up petition had been admitted by the High Court and then transferred to the NCLT to be tried as a proceeding under the IBC. After referring to the judgments in Jaipur Metals (supra), Forech (supra), and Kaledonia (supra), and after setting out various Sections dealing with winding up of companies under the Companies Act, 2013, this Court then held:20. What becomes clear upon a reading of the three judgments of this Court is the following:(i) So far as transfer of winding up proceedings is concerned, the Code began tentatively by leaving proceedings relating to winding up of companies to be transferred to NCLT at a stage as may be prescribed by the Central Government.(ii) This was done by the Transfer Rules, 2016 [Companies (Transfer of Pending Proceedings) Rules, 2016] which came into force with effect from 15.12.2016. Rules 5 and 6 referred to three types of proceedings. Only those proceedings which are at the stage of pre-service of notice of the winding up petition stand compulsorily transferred to the NCLT.(iii) The result therefore was that post notice and pre admission of winding up petitions, parallel proceedings would continue under both statutes, leading to a most unsatisfactory state of affairs. This led to the introduction of the 5th proviso to section 434(1)(c) which, as has been correctly pointed out in Kaledonia [Kaledonia Jute & Fibres Pvt. Ltd. v. Axis Nirman & Industries Ltd., 2020 SCC OnLine SC 943], is not restricted to any particular stage of a winding up proceeding.(iv) Therefore, what follows as a matter of law is that even post admission of a winding up petition, and after the appointment of a Company Liquidator to take over the assets of a company sought to be wound up, discretion is vested in the Company Court to transfer such petition to the NCLT. The question that arises before us in this case is how is such discretion to be exercised?xxx xxx xxx31. Given the aforesaid scheme of winding up under Chapter XX of the Companies Act, 2013, it is clear that several stages are contemplated, with the Tribunal retaining the power to control the proceedings in a winding up petition even after it is admitted. Thus, in a winding up proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a pre-admission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of notice and pre admission, the same result would ensue. However, post admission of a winding up petition and after the assets of the company sought to be wound up become in custodia legis and are taken over by the Company Liquidator, section 290 of the Companies Act, 2013 would indicate that the Company Liquidator may carry on the business of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on a transfer application made to it by a creditor or any party to the proceedings. It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case.23. A conspectus of the aforesaid authorities would show that a petition either under Section 7 or Section 9 of the IBC is an independent proceeding which is unaffected by winding up proceedings that may be filed qua the same company. Given the object sought to be achieved by the IBC, it is clear that only where a company in winding up is near corporate death that no transfer of the winding up proceeding would then take place to the NCLT to be tried as a proceeding under the IBC. Short of an irresistible conclusion that corporate death is inevitable, every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country. It is, thus, not possible to accede to the argument on behalf of the Appellant that given Section 446 of the Companies Act, 1956 / Section 279 of the Companies Act, 2013, once a winding up petition is admitted, the winding up petition should trump any subsequent attempt at revival of the company through a Section 7 or Section 9 petition filed under the IBC.What is clear by this Section is that a compromise or arrangement can also be entered into in an IBC proceeding if liquidation is ordered. However, what is of importance is that under the Companies Act, it is only winding up that can be ordered, whereas under the IBC, the primary emphasis is on revival of the corporate debtor through infusion of a new management.24. On facts also, in the present case, nothing can be said to have become irretrievable in the sense mentioned in paragraph 31 of Action Ispat (supra).25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held:The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]:The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up.It is also summarised in Palmers Company Precedents Vol. II, page 415:Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made.The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act.The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act.(at pages 383, 384)This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12).26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses.These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met. | 0 | 8,679 | 4,816 | ### Instruction:
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mentioned in paragraph 31 of Action Ispat (supra). 25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held: The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]: The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up. It is also summarised in Palmers Company Precedents Vol. II, page 415: Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act. (at pages 383, 384) This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12). 26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses. 27. Dr. Singhvi and Shri Ranjit Kumar have vehemently argued that SREI has suppressed the winding up proceeding in its application under Section 7 of the IBC before the NCLT and has resorted to Section 7 only as a subterfuge to avoid moving a transfer application before the High Court in the pending winding up proceeding. These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met.
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IBC proceeding if liquidation is ordered. However, what is of importance is that under the Companies Act, it is only winding up that can be ordered, whereas under the IBC, the primary emphasis is on revival of the corporate debtor through infusion of a new management.24. On facts also, in the present case, nothing can be said to have become irretrievable in the sense mentioned in paragraph 31 of Action Ispat (supra).25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held:The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]:The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up.It is also summarised in Palmers Company Precedents Vol. II, page 415:Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made.The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act.The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act.(at pages 383, 384)This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12).26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses.These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met.
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Everest Apartments Co-Operative Housingsociety Ltd Vs. State Of Maharashtra & Ors | denied to them. In dealing with this contention Lord Simonds (later Viscount) observed, at p. 225 of the report, (ITR): (at p. 107 of AIR), as follows:-"The fallacy implicit in this question has been made clear in the discussion of the first two questions. It assumes that S. 33 creates a right in the assessee. In their Lordships opinion it creates no such right. On behalf of the respondent the well-known principle which was discussed in Julius v. Bishop of Oxford-(1880) 5 AC 214 - was invoked and it was urged that the section which opens with the words "The Commissioner may of his own motion imposed upon him a duty which he was bound to perform upon the application of an assessee. It is possible that there might be a context in which words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary S. 33 follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. It appears that as a matter of convenience a practice has grown up under which the Commissioner has been invited to act "of his own motion under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondents case, that it affords a claim to relief. As has been already pointed out, appropriate relief is specifically given by other sections: it is not possible to interpret S. 33 as conferring general relief.Mr. De also relies upon certain passages from (1880) 5 AC 214 (supra) which show the distinction between power which is discretionary in its exercise and power which must be exercised every time the occasion for its exercise arises. He contends in the words of Talbot, J. in Sheffield Corporation v. Luxford, 1929-2 KB 180 at p. 183, that the word "May always means "may which is a permissive or enabling expression and that there are no circumstances either in the Act or in the facts here, by which it can be said that Government was under a duty to interfere. He submits that the order of Government must be read as indicating the above position and not that it had no jurisdiction.5. There is no doubt that S. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under S. 149 (9) of the Act The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under S. 154 in all cases with one exception only and that the finality of the order under S. 23 (3) does not restrict the exercise of the power. The word final in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had.6. There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words "on an application of a party which occur in S. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.7. The order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under Section 23 (3) precluded action under S. 154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under S. 154. That mandamus shall now issue to Government. | 1[ds]5. There is no doubt that S. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under S. 149 (9) of the Act The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under S. 154 in all cases with one exception only and that the finality of the order under S. 23 (3) does not restrict the exercise of the power. The word final in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had.6. There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words "on an application of a party which occur in S. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.7. The order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under Section 23 (3) precluded action under S. 154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under S. 154. That mandamus shall now issue tomaking this admission he is clearly right. The Act has provided for appeals in other sections and the decision on appeal is stated to be final. Yet the power of superintendence is given to the State Government in general terms in respect of any inquiry or proceeding with only one exception, namely, the proceedings of the Maharashtra State Tribunal, when the Tribunal calls for and examines the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. By mentioning one specific exception to the general power, the Act has indicated an intention to include every other inquiry or proceeding within the action by Government as contemplated by S. 154. | 1 | 2,933 | 762 | ### 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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denied to them. In dealing with this contention Lord Simonds (later Viscount) observed, at p. 225 of the report, (ITR): (at p. 107 of AIR), as follows:-"The fallacy implicit in this question has been made clear in the discussion of the first two questions. It assumes that S. 33 creates a right in the assessee. In their Lordships opinion it creates no such right. On behalf of the respondent the well-known principle which was discussed in Julius v. Bishop of Oxford-(1880) 5 AC 214 - was invoked and it was urged that the section which opens with the words "The Commissioner may of his own motion imposed upon him a duty which he was bound to perform upon the application of an assessee. It is possible that there might be a context in which words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary S. 33 follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. It appears that as a matter of convenience a practice has grown up under which the Commissioner has been invited to act "of his own motion under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondents case, that it affords a claim to relief. As has been already pointed out, appropriate relief is specifically given by other sections: it is not possible to interpret S. 33 as conferring general relief.Mr. De also relies upon certain passages from (1880) 5 AC 214 (supra) which show the distinction between power which is discretionary in its exercise and power which must be exercised every time the occasion for its exercise arises. He contends in the words of Talbot, J. in Sheffield Corporation v. Luxford, 1929-2 KB 180 at p. 183, that the word "May always means "may which is a permissive or enabling expression and that there are no circumstances either in the Act or in the facts here, by which it can be said that Government was under a duty to interfere. He submits that the order of Government must be read as indicating the above position and not that it had no jurisdiction.5. There is no doubt that S. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under S. 149 (9) of the Act The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under S. 154 in all cases with one exception only and that the finality of the order under S. 23 (3) does not restrict the exercise of the power. The word final in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had.6. There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words "on an application of a party which occur in S. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.7. The order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under Section 23 (3) precluded action under S. 154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under S. 154. That mandamus shall now issue to Government.
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5. There is no doubt that S. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under S. 149 (9) of the Act The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under S. 154 in all cases with one exception only and that the finality of the order under S. 23 (3) does not restrict the exercise of the power. The word final in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had.6. There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words "on an application of a party which occur in S. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.7. The order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under Section 23 (3) precluded action under S. 154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under S. 154. That mandamus shall now issue tomaking this admission he is clearly right. The Act has provided for appeals in other sections and the decision on appeal is stated to be final. Yet the power of superintendence is given to the State Government in general terms in respect of any inquiry or proceeding with only one exception, namely, the proceedings of the Maharashtra State Tribunal, when the Tribunal calls for and examines the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. By mentioning one specific exception to the general power, the Act has indicated an intention to include every other inquiry or proceeding within the action by Government as contemplated by S. 154.
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N.A. Malbari And Bros Vs. Commissioner Of Income-Tax, Bombay | not been levied on the same facts. It observed that the original assessment was solely on the basis of an estimate and the second assessment was after knowledge of the full facts of the concealed income.8. In this Court Mr. Kolah has urged that the second order for penalty was illegal because there was one concealment and in respect of that an order for penalty of Rs. 20,000/- had earlier been made. He contended that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity. He further stated that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.9. We are unable to accept this argument. It may be that in respect of the same concealment two orders of penalty would not stand but t is not a question of jurisdiction. The penalty under the section has to be correlated to the amount of the tax which would have been evaded if the assessee had got away with the concealment. In this case having assessed the income by an estimate, the Income-tax Officer levied a penalty on the basis of that estimate. Later when he ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty. If he had omitted to recall the earlier order that would not make the second order invalid. He had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders could not be enforced simultaneously or stand together. However, in the present case the earlier order having been cancelled and no objection to the cancellation having been taken, we have only one order and that for the reasons earlier stated is, in our view, a legal order.10. It was also said that when the first order of penalty was passed the Income-tax Officer was in possession of the full facts which would have justified the imposition of the higher penalty. It was pointed out that the first order of penalty was passed on January 22, 1954 while the books disclosing the real state of affairs had been produced before the Income-tax Officer on August 17, 1953. It was contended that if in spite of this he passed the order imposing a lower penalty, he had no right later to change the order. In support of this contention reference was made to C. V. Govindarajulu Iyer v. Commissioner of Income-tax, Madras, 1948-16 ITR 391 : (AIR 1949 Mad 399 ). There it was argued that the original proceeding under S. 23 (3) and a proceeding under S. 34 in respect of the same period were different and in the latter proceeding a penalty could not be imposed for a concealment in respect of the original proceeding. Rajamannar C. J. rejected this contention and held,"that so long as the proceedings under S. 34 relate to the assessment for the same period as the original assessment, the Income-tax Officer will be competent to levy a penalty on any ground open to him under Section 28 (1), even though it relates to the prior proceeding"" He however proceeded to observe."There may be one possible qualification of his power, and that is when the default or the act which is the basis of the imposition of the penalty was within the knowledge of the Officer who passed the final order in the prior proceeding and if that officer had failed to exercise his power under Section 28 during the course of the proceeding before him. Possibly in that case he would have no power."Learned counsel for the appellant relied on this latter observation in support of his contention.We do not think that Rajamannar C. J. wished to state this qualification on the power of the Income-tax Officer as a proposition of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it as at present advised.11. But assume that this statement of the law is correct. It has no application to the present case. What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed. Now Rajamannar C. J. was not dealing with a case in which two penalties had been imposed. The case before him was one in which no return had been filed pursuant to a general notice but subsequently S. 34 proceedings had been started and resulted in an assessment and an order imposing a penalty was thereupon passed. The final order in the prior proceedings referred to by the learned Chief Justice must therefore, be final assessment order in the prior proceedings. Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income-tax Officer had no knowledge of the concealment of income of Rs, 1,25,520/-. Therefore it seems to us that the observation of Rajamannar C. J. does not assist Mr. Kolah. We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered his explanation on March 11, 1952.That notice was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard. In assessing a penalty on this notice subsequently acquired knowledge would be irrelevant. | 0[ds]We do not think that Rajamannar C. J. wished to state this qualification on the power of the Income-tax Officer as a proposition of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it as at present advised.11. But assume that this statement of the law is correct. It has no application to the present case. What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed. Now Rajamannar C. J. was not dealing with a case in which two penalties had been imposed. The case before him was one in which no return had been filed pursuant to a general notice but subsequently S. 34 proceedings had been started and resulted in an assessment and an order imposing a penalty was thereupon passed. The final order in the prior proceedings referred to by the learned Chief Justice must therefore, be final assessment order in the prior proceedings. Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income-tax Officer had no knowledge of the concealment of income of Rs, 1,25,520/-. Therefore it seems to us that the observation of Rajamannar C. J. does not assist Mr. Kolah. We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered his explanation on March 11, 1952.That notice was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard. In assessing a penalty on this notice subsequently acquired knowledge would be irrelevant. | 0 | 2,246 | 352 | ### Instruction:
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not been levied on the same facts. It observed that the original assessment was solely on the basis of an estimate and the second assessment was after knowledge of the full facts of the concealed income.8. In this Court Mr. Kolah has urged that the second order for penalty was illegal because there was one concealment and in respect of that an order for penalty of Rs. 20,000/- had earlier been made. He contended that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity. He further stated that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood.9. We are unable to accept this argument. It may be that in respect of the same concealment two orders of penalty would not stand but t is not a question of jurisdiction. The penalty under the section has to be correlated to the amount of the tax which would have been evaded if the assessee had got away with the concealment. In this case having assessed the income by an estimate, the Income-tax Officer levied a penalty on the basis of that estimate. Later when he ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty. If he had omitted to recall the earlier order that would not make the second order invalid. He had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders could not be enforced simultaneously or stand together. However, in the present case the earlier order having been cancelled and no objection to the cancellation having been taken, we have only one order and that for the reasons earlier stated is, in our view, a legal order.10. It was also said that when the first order of penalty was passed the Income-tax Officer was in possession of the full facts which would have justified the imposition of the higher penalty. It was pointed out that the first order of penalty was passed on January 22, 1954 while the books disclosing the real state of affairs had been produced before the Income-tax Officer on August 17, 1953. It was contended that if in spite of this he passed the order imposing a lower penalty, he had no right later to change the order. In support of this contention reference was made to C. V. Govindarajulu Iyer v. Commissioner of Income-tax, Madras, 1948-16 ITR 391 : (AIR 1949 Mad 399 ). There it was argued that the original proceeding under S. 23 (3) and a proceeding under S. 34 in respect of the same period were different and in the latter proceeding a penalty could not be imposed for a concealment in respect of the original proceeding. Rajamannar C. J. rejected this contention and held,"that so long as the proceedings under S. 34 relate to the assessment for the same period as the original assessment, the Income-tax Officer will be competent to levy a penalty on any ground open to him under Section 28 (1), even though it relates to the prior proceeding"" He however proceeded to observe."There may be one possible qualification of his power, and that is when the default or the act which is the basis of the imposition of the penalty was within the knowledge of the Officer who passed the final order in the prior proceeding and if that officer had failed to exercise his power under Section 28 during the course of the proceeding before him. Possibly in that case he would have no power."Learned counsel for the appellant relied on this latter observation in support of his contention.We do not think that Rajamannar C. J. wished to state this qualification on the power of the Income-tax Officer as a proposition of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it as at present advised.11. But assume that this statement of the law is correct. It has no application to the present case. What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed. Now Rajamannar C. J. was not dealing with a case in which two penalties had been imposed. The case before him was one in which no return had been filed pursuant to a general notice but subsequently S. 34 proceedings had been started and resulted in an assessment and an order imposing a penalty was thereupon passed. The final order in the prior proceedings referred to by the learned Chief Justice must therefore, be final assessment order in the prior proceedings. Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income-tax Officer had no knowledge of the concealment of income of Rs, 1,25,520/-. Therefore it seems to us that the observation of Rajamannar C. J. does not assist Mr. Kolah. We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered his explanation on March 11, 1952.That notice was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard. In assessing a penalty on this notice subsequently acquired knowledge would be irrelevant.
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We do not think that Rajamannar C. J. wished to state this qualification on the power of the Income-tax Officer as a proposition of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it as at present advised.11. But assume that this statement of the law is correct. It has no application to the present case. What is said is that if the default which entails the penalty was within the knowledge of the authority when it passed the final order in the prior proceeding no penalty could be later imposed. Now Rajamannar C. J. was not dealing with a case in which two penalties had been imposed. The case before him was one in which no return had been filed pursuant to a general notice but subsequently S. 34 proceedings had been started and resulted in an assessment and an order imposing a penalty was thereupon passed. The final order in the prior proceedings referred to by the learned Chief Justice must therefore, be final assessment order in the prior proceedings. Now in the present case the final order in the prior assessment proceedings was made on January 31, 1952 and on that date the Income-tax Officer had no knowledge of the concealment of income of Rs, 1,25,520/-. Therefore it seems to us that the observation of Rajamannar C. J. does not assist Mr. Kolah. We may also observe that the first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1952 in respect of which the assessee had offered his explanation on March 11, 1952.That notice was not concerned with any concealment that came to light from the production of the books on August 17, 1953 and, therefore, on this concealment the assessee had never been heard. In assessing a penalty on this notice subsequently acquired knowledge would be irrelevant.
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Anwarkhan Mahboob Co Vs. The State of Bombay and Ors | of the cloth produced from it. But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of these states distinct utilities are produced and what is produced is at the next state consumed. It is usual, and correct to speak of raw cotton being consumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed in weaving; of woven cloth being consumed in the making of wearing apparel. The final product - the wearing apparel - is ultimately consume by men, women and children in using it as dress. In the absence of any words to limit the connotation of the word "consumption" to the final act of consumption, it will be proper to think that the Constitution-makers used the word to connote any kind of user which is ordinarily spoken of a consumption of there particular commodity.10. Reverting to the instance of cotton, mentioned above, it will be proper to hold that when raw cotton is delivered in State A for being ginned in that State, it is delivered for consumption is State A; when ginned cotton is delivered in State B for being spun into yarn, it is delivered for consumption in State B; when yarn is delivered in State C for being woven into cloth in that State, it is delivered for consumption in State C; when woven cloth is delivered in State D for being made by tailor in the State in to wearing apparel, there is delivery of cloth for consumption on State D; and finally when, wearing apparel is delivered in State E for being sold as dress in that State, it is delivery of wearing apparel for consumption in State E. Except at the final state of consumption which consists in using the finished commodity as an article of clothing, there will be noticed at each state of production the bringing into existence of a commercial commodity different from what was received by the producers. This conversion of a commodity into a different commercial commodity by subjecting it to some processing, is consumption within the meaning of the Explanation to Art. 286 no less than the final act of user when no distinct commodity is being brought into existence but what was brought into existence is being used up. At one stage of the argument what Mr. Pathak appeared to insist was that there must be destruction of the substance of the thing before the thing can be said to be consumed. That takes us nowhere, because we have still to find out what is meant by destruction of the substance. It may well be said that when a commodity is converted into a commercially different commodity its former identity is destroyed and so there is destruction of the substance, to satisfy the test suggested by the learned counsel. We think it unnecessary however to enter into a discussion of what amounts to "destruction" as even without deciding, whether there was destruction or not, we think it proper and reasonable to say that whenever a commodity is so dealt with as to change it into another commercial commodity there is consumption of the first commodity within the meaning of the Explanation to Art. 286. This aspect of consumption was pointed out by Das, J (as he then was), in State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory [1954]1SCR53 of the Report. The purchase there was of raw cashew nuts. Discussing the question whether the delivery of these nuts in Travancore was for the purpose of consumption in that State, Das, J., observed :-"The raw cashew-nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew-nut kernels, are obtained. It follows, therefore, that the raw cashew-nut is consumed by the respondents in the sense I have mentioned".11. Das, J., here proceeded on the view that using a commodity so as to turn it into a different commercial article amounts to consumption, within the meaning of the Explanation to Art. 286(1)(a) - a view which he had earlier indicated at P. 110 of the Report. We are not aware of any case where such use of a commodity has been held not to amount to consumption. 12. It must therefore be held on the facts of this case that when tobacco was delivered in the State of Bombay for the purpose of changing it into a commercially different article, viz., bidi patti the delivery was for the purpose of consumption. The purchases in this case therefore fall within the meaning of Explanation to Art. 286(1)(a) and must be held to have taken place inside the State of Bombay. 13. There remains for consideration the objection that the transactions took place in the course of inter-State trade or commerce within the meaning of Art. 286(2) of the Constitution and the levy of tax was therefore prohibited by the provisions thereof. Even if these transactions were in the course of inter-State trade, the bar of Art. 286(2) of the Constitution stands removed by the Sales Tax Laws Validation Act, for the entire period upto September 6, 1955. The levy of tax for the period September 7, 1955, to September 29, 1955, would be illegal if these transactions are in the course of inter-State trade. The petitioners counsel however informed us that he did not want a decision on his question and would not, in this case, press his objection under Art. 286(2). It is unnecessary for us therefore to decide whether the transactions in question took place in the course of inter-State trade or commerce within the meaning of Art. 286(2) of the Constitution. | 0[ds]While the entries from 1 to 79 mention specific articles, entry 80 as it stood before its amendment in 1957 was in these"All goods other than those specified from time to timein Schedule A and in the preceding(An amendment by the Bombay71 of 1958added the words "ander the words "ScheduleThe question is whether these words "all goods other than those specified from timein Schedule A and in the precedingamount to a specification of goods for the purpose of10. On behalf of the petitioner Mr. Pathak contends that only the mention of specific goods can amount to specification and mention of goods in such general language as "all goods other than those specified from time to timein Schedule A and in the precedingcannot be said to be a specification of goods. We are unable to accept this argument. While it is true that mention of specific goods is specificationfor the purpose of10 as alsofor the purpose of8 and 9 of the Act, we see no reason to think that mention of goods in ageneral way as "all goods other than those specified from time to timein Schedule A and in the precedingof Schedule B itself is not a specification. We are of opinion that the entry 80 in Schedule B is a specification of goods within the meaning of10 and aswhich the petitioneris not within either Schedule A or anythe earlier entries in Schedule B, purchase tax under10 is leviable on these purchasesat the rate mentioned against Entry 80.This brings us to the petitioners main contention that the purchases took place outside the State of Bombay. The contention as stated in11 of the petition is that the purchases would be deemed to have taken place in the State of Madhya Pradesh, where the tobacco was delivered for consumption. At the hearing, however, it was not disputed that the tobacco was delivered to the Companys Ranoli Branch within the State of Bombay which made the purchase. Theby the Ranoli Branch to the companys head office at Jabalpur is not a delivery as a direct result of the sale.The definite case of the petitioner is that the purchased tobacco is delivered to it within the State of Bombay as a direct result of the purchase. The further question that has been raised is whether such delivery wasfor the purpose ofconsumption in the State of Bombay. On behalf of the petitioner it was contended that after its delivery, the tobacco was intended to be sent to the State of Madhya Pradesh to be manufactured intoat that place. All that used to be done to the purchased tobacco in the State of Bombay was to have the stems and dust removed from the tobacco. Such removal of the waste material, like stems and earth, it is urged, does not amount to consumption of tobacco. It is further stated that the tobacco which isto the head office after removal of the waste material is not an article "commerciallyfrom the tobaccofrom the cultivators. In the respondents counter affidavit it is stated that"the petitioners after purchasing raw tobacco from the cultivators in the State of Bombay, subject the raw tobacco so purchased to process leading to its conversion into bidi pattis for immediate use in the manufacture ofmarketable value of raw tobacco and bidi pattis differs and that both these are commercially differente was no further affidavit filed on behalf of the petitioner to traverse the averments of the respondents that the raw tobacco is converted into bidi patti before it isoutside Bombay State and that the market value of raw tobacco and bidi patti differs. Mr. Pathak also conceded at the hearing the correctness of the statement that anybody could go to the market to purchase the article known as raw tobacco or Akho Bhuko and that he could also go and purchase from the market the article known as "bidiThat itself is sufficient proof that raw tobacco and bidi patti are distinct and different commercial articles.It is in the background of these facts that we have to consider the question whether tobacco was delivered in the State of Bombay for consumption in that State. In answering that question it is unnecessary and indeed inexpedient to attempt an exhaustive definition of the wordas used in the explanation to Art. 286n. Theact of consumption with which people are most familiar occurs when they eat, or drink or smoke. Thus, we speak of people consuming bread, or fish or meat or vegetables, when they eat these articles ofwe speak of people consuming tea or coffee or water or wine, when they drink these articles; we speak of people consuming cigars or cigarettes or bidis, when they smoke these. The productionwealth, as economists put it, consists in the creation ofConsumption consists in the act of taking such advantage of the commodities and services produced as constitutes thethereof. For each commodity, there is ordinarily what is generally considered to be the final act of consumption. For some commodities, there may be eventhan one kind of final consumption. Thusgrapes may be "finallyby eating them as fruits; they may also be consumed by drinking the wine prepared fromAgain, the final act of consumption may in some cases be spread over a considerable period of time. Books, articles of furniture, paintings may be mentioned as examples. It may evenin such cases, that after onehas performed part of the final act of consumption, another portion of the final act of consumption may be performed by his heir ora transferee, or even one who has obtained possession by wrongful means. But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching theat which this final act of consumption takes place the commodity may pass through different stages of production and for such differentthere would exist one or more intermediateus, the final act of consumption of cotton may be considered to be the use as wearing apparel of the cloth produced from it. But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of thesedistinct utilities are produced and what is produced is at the nextconsumed. It is usual, and correct to speak of raw cotton being consumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed inof woven cloth being consumed inf woven cloth being consumed inthe making of wearing apparel. The final productthe wearing appareled bymen, women and children in using it as dress. In the absence of any words to limit the connotation of the wordto the final act of consumption, it will be proper to think that theused the word to connote any kind of user which is ordinarily spoken ofconsumption of theparticular commodity.10. Reverting to the instance of cotton, mentioned above, it will be proper to hold that when raw cotton is delivered in State A for being ginned in that State, it is delivered for consumptionState A; when ginned cotton is delivered in State B for being spun into yarn, it is delivered for consumption in State B; when yarn is delivered in State C for being woven into cloth in that State, it is delivered for consumption in State C; when woven cloth is delivered in State D for being made by tailor ine into wearingapparel, there is delivery of cloth for consumptionState D; and finally when, wearing apparel is delivered in State E for being sold as dress in that State, it is delivery of wearing apparel for consumption in State E. Except at the finalof consumption which consists in using the finished commodity as an article of clothing, there will be noticed at eachof production the bringing into existence of a commercial commodity different from what washe producers. This conversion of a commodity into a different commercial commodity by subjecting it to some processing, is consumption within the meaning of the Explanation to Art. 286 no less than the final act of user when no distinct commodity is being brought into existence but what was brought into existence is being used up. At one stage of the argument what Mr. Pathak appeared to insist was that there must be destruction of the substance of the thing before the thing can be said to be consumed. That takes us nowhere, because we have still to find out what is meant by destruction of the substance. It may well be said that when a commodity is converted into a commercially different commodity its former identity is destroyed and so there is destruction of the substance, to satisfy the testhe learned counsel. We think it unnecessary however to enter into a discussion of what amounts toas even without deciding, whether there was destruction orthink it proper and reasonable to say that whenever a commodity is so dealt with as to change it into another commercial commodity there isconsumption of thefirst commodity within the meaning of the Explanation to Art.aspect of consumption was pointed out by Das,(as he then was)in State ofv. Shanmugha Vilas Cashew Nut. The purchase there was of raw cashew nuts. Discussing the question whether the delivery of these nuts in Travancore wasfor the purpose ofconsumption in thatIt must therefore be held on the facts of this case that when tobacco was delivered in the State of Bombayfor the purpose ofchanging it into a commercially different article, viz., bidi patti the delivery wasfor the purpose ofpurchases in this case therefore fall within the meaning of Explanation to Art. 286) and must be held to have taken place inside the State oflevy of tax for the period September 7, 1955to September 29, 1955, would be illegal if these transactions are in the course oftrade. The petitioners counsel however informed us that he did not want a decision on | 0 | 3,168 | 1,819 | ### Instruction:
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of the cloth produced from it. But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of these states distinct utilities are produced and what is produced is at the next state consumed. It is usual, and correct to speak of raw cotton being consumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed in weaving; of woven cloth being consumed in the making of wearing apparel. The final product - the wearing apparel - is ultimately consume by men, women and children in using it as dress. In the absence of any words to limit the connotation of the word "consumption" to the final act of consumption, it will be proper to think that the Constitution-makers used the word to connote any kind of user which is ordinarily spoken of a consumption of there particular commodity.10. Reverting to the instance of cotton, mentioned above, it will be proper to hold that when raw cotton is delivered in State A for being ginned in that State, it is delivered for consumption is State A; when ginned cotton is delivered in State B for being spun into yarn, it is delivered for consumption in State B; when yarn is delivered in State C for being woven into cloth in that State, it is delivered for consumption in State C; when woven cloth is delivered in State D for being made by tailor in the State in to wearing apparel, there is delivery of cloth for consumption on State D; and finally when, wearing apparel is delivered in State E for being sold as dress in that State, it is delivery of wearing apparel for consumption in State E. Except at the final state of consumption which consists in using the finished commodity as an article of clothing, there will be noticed at each state of production the bringing into existence of a commercial commodity different from what was received by the producers. This conversion of a commodity into a different commercial commodity by subjecting it to some processing, is consumption within the meaning of the Explanation to Art. 286 no less than the final act of user when no distinct commodity is being brought into existence but what was brought into existence is being used up. At one stage of the argument what Mr. Pathak appeared to insist was that there must be destruction of the substance of the thing before the thing can be said to be consumed. That takes us nowhere, because we have still to find out what is meant by destruction of the substance. It may well be said that when a commodity is converted into a commercially different commodity its former identity is destroyed and so there is destruction of the substance, to satisfy the test suggested by the learned counsel. We think it unnecessary however to enter into a discussion of what amounts to "destruction" as even without deciding, whether there was destruction or not, we think it proper and reasonable to say that whenever a commodity is so dealt with as to change it into another commercial commodity there is consumption of the first commodity within the meaning of the Explanation to Art. 286. This aspect of consumption was pointed out by Das, J (as he then was), in State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory [1954]1SCR53 of the Report. The purchase there was of raw cashew nuts. Discussing the question whether the delivery of these nuts in Travancore was for the purpose of consumption in that State, Das, J., observed :-"The raw cashew-nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew-nut kernels, are obtained. It follows, therefore, that the raw cashew-nut is consumed by the respondents in the sense I have mentioned".11. Das, J., here proceeded on the view that using a commodity so as to turn it into a different commercial article amounts to consumption, within the meaning of the Explanation to Art. 286(1)(a) - a view which he had earlier indicated at P. 110 of the Report. We are not aware of any case where such use of a commodity has been held not to amount to consumption. 12. It must therefore be held on the facts of this case that when tobacco was delivered in the State of Bombay for the purpose of changing it into a commercially different article, viz., bidi patti the delivery was for the purpose of consumption. The purchases in this case therefore fall within the meaning of Explanation to Art. 286(1)(a) and must be held to have taken place inside the State of Bombay. 13. There remains for consideration the objection that the transactions took place in the course of inter-State trade or commerce within the meaning of Art. 286(2) of the Constitution and the levy of tax was therefore prohibited by the provisions thereof. Even if these transactions were in the course of inter-State trade, the bar of Art. 286(2) of the Constitution stands removed by the Sales Tax Laws Validation Act, for the entire period upto September 6, 1955. The levy of tax for the period September 7, 1955, to September 29, 1955, would be illegal if these transactions are in the course of inter-State trade. The petitioners counsel however informed us that he did not want a decision on his question and would not, in this case, press his objection under Art. 286(2). It is unnecessary for us therefore to decide whether the transactions in question took place in the course of inter-State trade or commerce within the meaning of Art. 286(2) of the Constitution.
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In answering that question it is unnecessary and indeed inexpedient to attempt an exhaustive definition of the wordas used in the explanation to Art. 286n. Theact of consumption with which people are most familiar occurs when they eat, or drink or smoke. Thus, we speak of people consuming bread, or fish or meat or vegetables, when they eat these articles ofwe speak of people consuming tea or coffee or water or wine, when they drink these articles; we speak of people consuming cigars or cigarettes or bidis, when they smoke these. The productionwealth, as economists put it, consists in the creation ofConsumption consists in the act of taking such advantage of the commodities and services produced as constitutes thethereof. For each commodity, there is ordinarily what is generally considered to be the final act of consumption. For some commodities, there may be eventhan one kind of final consumption. Thusgrapes may be "finallyby eating them as fruits; they may also be consumed by drinking the wine prepared fromAgain, the final act of consumption may in some cases be spread over a considerable period of time. Books, articles of furniture, paintings may be mentioned as examples. It may evenin such cases, that after onehas performed part of the final act of consumption, another portion of the final act of consumption may be performed by his heir ora transferee, or even one who has obtained possession by wrongful means. But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching theat which this final act of consumption takes place the commodity may pass through different stages of production and for such differentthere would exist one or more intermediateus, the final act of consumption of cotton may be considered to be the use as wearing apparel of the cloth produced from it. But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of thesedistinct utilities are produced and what is produced is at the nextconsumed. It is usual, and correct to speak of raw cotton being consumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed inof woven cloth being consumed inf woven cloth being consumed inthe making of wearing apparel. The final productthe wearing appareled bymen, women and children in using it as dress. In the absence of any words to limit the connotation of the wordto the final act of consumption, it will be proper to think that theused the word to connote any kind of user which is ordinarily spoken ofconsumption of theparticular commodity.10. Reverting to the instance of cotton, mentioned above, it will be proper to hold that when raw cotton is delivered in State A for being ginned in that State, it is delivered for consumptionState A; when ginned cotton is delivered in State B for being spun into yarn, it is delivered for consumption in State B; when yarn is delivered in State C for being woven into cloth in that State, it is delivered for consumption in State C; when woven cloth is delivered in State D for being made by tailor ine into wearingapparel, there is delivery of cloth for consumptionState D; and finally when, wearing apparel is delivered in State E for being sold as dress in that State, it is delivery of wearing apparel for consumption in State E. Except at the finalof consumption which consists in using the finished commodity as an article of clothing, there will be noticed at eachof production the bringing into existence of a commercial commodity different from what washe producers. This conversion of a commodity into a different commercial commodity by subjecting it to some processing, is consumption within the meaning of the Explanation to Art. 286 no less than the final act of user when no distinct commodity is being brought into existence but what was brought into existence is being used up. At one stage of the argument what Mr. Pathak appeared to insist was that there must be destruction of the substance of the thing before the thing can be said to be consumed. That takes us nowhere, because we have still to find out what is meant by destruction of the substance. It may well be said that when a commodity is converted into a commercially different commodity its former identity is destroyed and so there is destruction of the substance, to satisfy the testhe learned counsel. We think it unnecessary however to enter into a discussion of what amounts toas even without deciding, whether there was destruction orthink it proper and reasonable to say that whenever a commodity is so dealt with as to change it into another commercial commodity there isconsumption of thefirst commodity within the meaning of the Explanation to Art.aspect of consumption was pointed out by Das,(as he then was)in State ofv. Shanmugha Vilas Cashew Nut. The purchase there was of raw cashew nuts. Discussing the question whether the delivery of these nuts in Travancore wasfor the purpose ofconsumption in thatIt must therefore be held on the facts of this case that when tobacco was delivered in the State of Bombayfor the purpose ofchanging it into a commercially different article, viz., bidi patti the delivery wasfor the purpose ofpurchases in this case therefore fall within the meaning of Explanation to Art. 286) and must be held to have taken place inside the State oflevy of tax for the period September 7, 1955to September 29, 1955, would be illegal if these transactions are in the course oftrade. The petitioners counsel however informed us that he did not want a decision on
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Mirza Nausherwan Khan & Anr Vs. The Collector (Land Acquisition), Hyderabad | with his appeal under a certificate which he secured under Art. 133 (1) (a) before the recent amendment. We mention this because we are unable to discern any substantial question of law of general importance in counsels submission or the points outlined in the memorandum of appeal which merits the consideration of this Court.6. Merely because the claim is large the judgment need not be long and, although the appellant tried to spread the canvas wide, we regard the points deserving of consideration as falling within a narrow compass. The burden of the song has been that Hyderabad has, for historical reason, become a great city and that the land acquired has precious potential value which has not entered the judicial computation at the lesser levels. (By way of aside one may say that socio-economic development of a City may enhance the value of space without any the littlest contribution by its owner and it is, in one sense, unfair that society should pay to an individual a higher price not because he has earned it but because of other development factors. Of course, we are concerned with the Land Acquisition Act as it is and this thought therefore need not be pursued). Counsel has also urged that the land and the building taken together had personality of its own and therefore a special value, missed by the courts below, should be ascribed and the methodology of breaking up the totality into building and lands separately and sub-dividing the land into two portions on the principle of belting was all wrong. It was also urged before us that the multiple of 27 for purposes of capitalisation, adopted by the High Court was inadequate and that the owner was entitled to capitalisation by multiplication 33 1/3 times.7. We find that the High Court has carefully considered all available points, indeed stretching them in favour of the appellant, where that was warranted by the facts. The potential value of the land was quite within the ken of the Judge who heard the appeal and weighed with the Court in the assessment made. However, the High Court noted that no evidence whatever was placed on record in substantiation of any big potential value based on the unique feature of the land. On the other than, the totality of factors was duly considered by the High Court when it observed:"Having regard to the physical features of the property, its situation in an important locality and the price paid for a small extent of level ground acquired for the Telephone Exchange which is at a distance of about half a mile from the property acquired, we hold that the compensation awarded by the Court below at Rs. 20/- per square yard for the 2042 square yards constituting the 50 wide belt and at Rs. 10/- per square yard for the rest is fair and reasonable.We see no error in this evaluation.8. It is true that the Court has adopted a higher value for a strip 50 feet wide adjoing the road, based on the principle of belting. There is no doubt that when we deal with value of an extensive plot of land in a City the strip that adjoins an important road will have a higher value than what is in the rear, for obvious reasons of potential user or commercial exploitation. While no general principle can be laid down in these matters, local circumstances guide the Courts. The ruling in Mohini Mohan v. Province of Bengal, AIR 1951 Cal 246 and the principle, with its limitations set out in Kunjukrishna v. State, AIR 1953 Trav-Co 177 are suficient to bring out our point. Indeed, the objection to divide the plot for purposes of differential valuation has not been taken at the proper level. On the contrary, it has been adopted originally at the instance of the appellant himself, before the Collector, and we are satisfied that such an approach has operted to his benefit and not detriment. The Court has taken note of the well-established distinction between the value of a tiny plot as being no measure when a large area is acquired. The terrain, in this case, appears to have been uneven with difference in levels to the extent of 27 feet and boulders here and there making building operations expensive in the initial preparation of the site. We conclude by saying that practically every relevant factor placed on record has received fair consideration before the High Court.9. The next question is whether the multiple adopted for capitalisation has been prejudicially low. Exhibit A-7, the notification produced by the appellant, itself shows that around the middle of 1957 the rate of interest allowed on Government Securities at the relevant time ranged between 3 1/4% and 4 %. The Court accepted 3 1/4% as interest on giltedged securities instead of 4%, thus giving some advantage to the appellant and there is no warrant for the contention that the interest on Government bonds was 3% at the relevant time. The appellant apparently has sought to mis-read Ex. A-7. We are satisfied with the valuation of the rented portion of the house adopted by the High Court as correct.10. Shri Pillai argued in vain for an augmentation of the value on the potential user of the plot for a Cinema House. This story has been factually disbelieved by the Courts below and we cannot reopen the matter. We must also remember that the Court below has been indulgent enough to adopt a multiple of 27 despite the fact that the buildings acquired are over 30 years old. Nor does it come with grace from the appellant to contend against the belting method since he himself had asked for its application before the Collector and the trial Court.11. We are thus satisfied that there is no law, no fact, which comes to the rescue of the appellant and his appeal, virtually against concurrent findings of fact, therefore, deserves to be, and is hereby, dismissed with costs.12. | 0[ds]5. It is thus clear that from the Collector to the Civil Court and on to the High Court, there has been an escalation in the amount of compensation and hopefully, the owner has reached this Court with his appeal under a certificate which he secured under Art. 133 (1) (a) before the recent amendment. We mention this because we are unable to discern any substantial question of law of general importance in counsels submission or the points outlined in the memorandum of appeal which merits the consideration of this Court.6. Merely because the claim is large the judgment need not be long and, although the appellant tried to spread the canvas wide, we regard the points deserving of consideration as falling within a narrow compass. The burden of the song has been that Hyderabad has, for historical reason, become a great city and that the land acquired has precious potential value which has not entered the judicial computation at the lesser levels. (By way of aside one may say that socio-economic development of a City may enhance the value of space without any the littlest contribution by its owner and it is, in one sense, unfair that society should pay to an individual a higher price not because he has earned it but because of other development factors. Of course, we are concerned with the Land Acquisition Act as it is and this thought therefore need not be pursued). Counsel has also urged that the land and the building taken together had personality of its own and therefore a special value, missed by the courts below, should be ascribed and the methodology of breaking up the totality into building and lands separately and sub-dividing the land into two portions on the principle of belting was all wrong. It was also urged before us that the multiple of 27 for purposes of capitalisation, adopted by the High Court was inadequate and that the owner was entitled to capitalisation by multiplication 33 1/3 times.7. We find that the High Court has carefully considered all available points, indeed stretching them in favour of the appellant, where that was warranted by the facts. The potential value of the land was quite within the ken of the Judge who heard the appeal and weighed with the Court in the assessment made. However, the High Court noted that no evidence whatever was placed on record in substantiation of any big potential value based on the unique feature of the land.It is true that the Court has adopted a higher value for a strip 50 feet wide adjoing the road, based on the principle of belting. There is no doubt that when we deal with value of an extensive plot of land in a City the strip that adjoins an important road will have a higher value than what is in the rear, for obvious reasons of potential user or commercial exploitation. While no general principle can be laid down in these matters, local circumstances guide the Courts.Shri Pillai argued in vain for an augmentation of the value on the potential user of the plot for a Cinema House. This story has been factually disbelieved by the Courts below and we cannot reopen the matter. We must also remember that the Court below has been indulgent enough to adopt a multiple of 27 despite the fact that the buildings acquired are over 30 years old. Nor does it come with grace from the appellant to contend against the belting method since he himself had asked for its application before the Collector and the trial Court.11. We are thus satisfied that there is no law, no fact, which comes to the rescue of the appellant and his appeal, virtually against concurrent findings of fact, therefore, deserves to be, and is hereby, dismissed with costs. | 0 | 1,587 | 692 | ### 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:
with his appeal under a certificate which he secured under Art. 133 (1) (a) before the recent amendment. We mention this because we are unable to discern any substantial question of law of general importance in counsels submission or the points outlined in the memorandum of appeal which merits the consideration of this Court.6. Merely because the claim is large the judgment need not be long and, although the appellant tried to spread the canvas wide, we regard the points deserving of consideration as falling within a narrow compass. The burden of the song has been that Hyderabad has, for historical reason, become a great city and that the land acquired has precious potential value which has not entered the judicial computation at the lesser levels. (By way of aside one may say that socio-economic development of a City may enhance the value of space without any the littlest contribution by its owner and it is, in one sense, unfair that society should pay to an individual a higher price not because he has earned it but because of other development factors. Of course, we are concerned with the Land Acquisition Act as it is and this thought therefore need not be pursued). Counsel has also urged that the land and the building taken together had personality of its own and therefore a special value, missed by the courts below, should be ascribed and the methodology of breaking up the totality into building and lands separately and sub-dividing the land into two portions on the principle of belting was all wrong. It was also urged before us that the multiple of 27 for purposes of capitalisation, adopted by the High Court was inadequate and that the owner was entitled to capitalisation by multiplication 33 1/3 times.7. We find that the High Court has carefully considered all available points, indeed stretching them in favour of the appellant, where that was warranted by the facts. The potential value of the land was quite within the ken of the Judge who heard the appeal and weighed with the Court in the assessment made. However, the High Court noted that no evidence whatever was placed on record in substantiation of any big potential value based on the unique feature of the land. On the other than, the totality of factors was duly considered by the High Court when it observed:"Having regard to the physical features of the property, its situation in an important locality and the price paid for a small extent of level ground acquired for the Telephone Exchange which is at a distance of about half a mile from the property acquired, we hold that the compensation awarded by the Court below at Rs. 20/- per square yard for the 2042 square yards constituting the 50 wide belt and at Rs. 10/- per square yard for the rest is fair and reasonable.We see no error in this evaluation.8. It is true that the Court has adopted a higher value for a strip 50 feet wide adjoing the road, based on the principle of belting. There is no doubt that when we deal with value of an extensive plot of land in a City the strip that adjoins an important road will have a higher value than what is in the rear, for obvious reasons of potential user or commercial exploitation. While no general principle can be laid down in these matters, local circumstances guide the Courts. The ruling in Mohini Mohan v. Province of Bengal, AIR 1951 Cal 246 and the principle, with its limitations set out in Kunjukrishna v. State, AIR 1953 Trav-Co 177 are suficient to bring out our point. Indeed, the objection to divide the plot for purposes of differential valuation has not been taken at the proper level. On the contrary, it has been adopted originally at the instance of the appellant himself, before the Collector, and we are satisfied that such an approach has operted to his benefit and not detriment. The Court has taken note of the well-established distinction between the value of a tiny plot as being no measure when a large area is acquired. The terrain, in this case, appears to have been uneven with difference in levels to the extent of 27 feet and boulders here and there making building operations expensive in the initial preparation of the site. We conclude by saying that practically every relevant factor placed on record has received fair consideration before the High Court.9. The next question is whether the multiple adopted for capitalisation has been prejudicially low. Exhibit A-7, the notification produced by the appellant, itself shows that around the middle of 1957 the rate of interest allowed on Government Securities at the relevant time ranged between 3 1/4% and 4 %. The Court accepted 3 1/4% as interest on giltedged securities instead of 4%, thus giving some advantage to the appellant and there is no warrant for the contention that the interest on Government bonds was 3% at the relevant time. The appellant apparently has sought to mis-read Ex. A-7. We are satisfied with the valuation of the rented portion of the house adopted by the High Court as correct.10. Shri Pillai argued in vain for an augmentation of the value on the potential user of the plot for a Cinema House. This story has been factually disbelieved by the Courts below and we cannot reopen the matter. We must also remember that the Court below has been indulgent enough to adopt a multiple of 27 despite the fact that the buildings acquired are over 30 years old. Nor does it come with grace from the appellant to contend against the belting method since he himself had asked for its application before the Collector and the trial Court.11. We are thus satisfied that there is no law, no fact, which comes to the rescue of the appellant and his appeal, virtually against concurrent findings of fact, therefore, deserves to be, and is hereby, dismissed with costs.12.
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0
### Explanation:
5. It is thus clear that from the Collector to the Civil Court and on to the High Court, there has been an escalation in the amount of compensation and hopefully, the owner has reached this Court with his appeal under a certificate which he secured under Art. 133 (1) (a) before the recent amendment. We mention this because we are unable to discern any substantial question of law of general importance in counsels submission or the points outlined in the memorandum of appeal which merits the consideration of this Court.6. Merely because the claim is large the judgment need not be long and, although the appellant tried to spread the canvas wide, we regard the points deserving of consideration as falling within a narrow compass. The burden of the song has been that Hyderabad has, for historical reason, become a great city and that the land acquired has precious potential value which has not entered the judicial computation at the lesser levels. (By way of aside one may say that socio-economic development of a City may enhance the value of space without any the littlest contribution by its owner and it is, in one sense, unfair that society should pay to an individual a higher price not because he has earned it but because of other development factors. Of course, we are concerned with the Land Acquisition Act as it is and this thought therefore need not be pursued). Counsel has also urged that the land and the building taken together had personality of its own and therefore a special value, missed by the courts below, should be ascribed and the methodology of breaking up the totality into building and lands separately and sub-dividing the land into two portions on the principle of belting was all wrong. It was also urged before us that the multiple of 27 for purposes of capitalisation, adopted by the High Court was inadequate and that the owner was entitled to capitalisation by multiplication 33 1/3 times.7. We find that the High Court has carefully considered all available points, indeed stretching them in favour of the appellant, where that was warranted by the facts. The potential value of the land was quite within the ken of the Judge who heard the appeal and weighed with the Court in the assessment made. However, the High Court noted that no evidence whatever was placed on record in substantiation of any big potential value based on the unique feature of the land.It is true that the Court has adopted a higher value for a strip 50 feet wide adjoing the road, based on the principle of belting. There is no doubt that when we deal with value of an extensive plot of land in a City the strip that adjoins an important road will have a higher value than what is in the rear, for obvious reasons of potential user or commercial exploitation. While no general principle can be laid down in these matters, local circumstances guide the Courts.Shri Pillai argued in vain for an augmentation of the value on the potential user of the plot for a Cinema House. This story has been factually disbelieved by the Courts below and we cannot reopen the matter. We must also remember that the Court below has been indulgent enough to adopt a multiple of 27 despite the fact that the buildings acquired are over 30 years old. Nor does it come with grace from the appellant to contend against the belting method since he himself had asked for its application before the Collector and the trial Court.11. We are thus satisfied that there is no law, no fact, which comes to the rescue of the appellant and his appeal, virtually against concurrent findings of fact, therefore, deserves to be, and is hereby, dismissed with costs.
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Ram Bilas Ojha and Others Vs. Bishwa Muni and Others | KAILASAM, J.1. The unsuccessful defendants (defendants 2 to 7) in all the courts below in a suit for specific performance are the appellants by special leave before us.2. The first defendant (4th respondent) on receipt of a sum of Rs. 1, 300/- executed a sarllat in favour of the first plaintiff with condition that the first plaintiff would enter into possession of the said plot in lieu of the interest of the debt, After some time the fourth respondent gave up his residence and moved to a different place and while so doing expressed the desire that he wanted to dispose of the plot aforesaid and made a request to the plaintiff that he should purchase the same. The first plaintiff had already entered into possession and occupied the land. After sometime the 4th respondent settled with the plaintiff for the transaction of sale in respect of that plot for a sum of Rs. 1, 700/- On 2-6-1964 he received a sum of Rs. 100/- as earnest money from the plaintiffs. On 3-6-1964 the 4th respondent executed an agreement for sale also in favour of the plaintiffs. As plaintiffs had to pay an additional sum of Rs. 300/- and as plaintiffs did not have that amount plaintiffs stated that they will get the sale deed executed after payment. According to the plaintiffs, the defendants 2 to 7 who are appellants before us because of grievance against the plaintiffs, by a sale deed dated 4th June 1964 purchased the properties for a sum of Rs. 2000/-. The plaintiffs who are respondents 1 to 3 in this Court filed the suit for specific performance of their agreement for sale alleging that the sale in favour of defendants 2 to 7 appellants herein, was not bona fide and was with notice. The trial court raised certain issues. The issue relating to this question is issue No. 7 which is in the following terms :"Whether the defendants Nos. 2 to 7 are bona fide purchasers for value without notice? If so its effect?3. The trial court answered the issue in the negative holding that as respondents 1 to 3 were in possession from 1960 it must be held that they were in possession on 4-6-64 when the sale deed in favour of the appellants was executed. The respondents possession would have put the appellants on enquiry which if prosecuted would have disclosed a previous agreement and hence they cannot be called as transferees without notice.4. In the result the suit was decreed by the trial court with costs with a direction for performance of the contract to sell the disputed properties. An appeal was taken by the appellants to the Court of Civil Judge, Gorakhpur. The learned Judge also agreed with the reasoning of the trial court and dismissed the appeal. The second appeal to the High Court also failed and hence this appeal by special leave.5. In this appeal, Mr. Raju Ramachandran, counsel for the appellants, submitted that the courts below proceeded on an entirely different basis than the pleadings in coming to the conclusion that the defendants-appellants purchased the property without bona fides and with notice. He referred to paragraph 10 in the plaint where according to plaintiff the agreement dated 3-6-1964 was executed in the presence of defendants 2 to 7 and they fully knew it. The plea was reiterated in paragraph 14 where the plaintiff stated :"As the defendants had full knowledge of the agreement for sale dated 3-6-1964 they should not have got the sale deed executed. Having deceived the plaintiffs, in order to cause loss to the plaintiffs, they intentionally and maliciously got the sale deed executed on 4-6-1964 and that has no. binding upon the plaintiffs."6. On the pleadings the learned counsel submitted that the plaintiffs having failed in that plea that the defendants were present at the time of the agreement, they cannot rely on any constructive notice to them. The learned counsel further submitted that taking the facts of the case the agreement by the respondent 4 in favour of respondent 1 to 3 was between 5 and 6 P.M. on 3rd June 1964 while the sale deed in favour of the appellants was executed on the next day, there was no. opportunity for the appellants to have had knowledge of the transaction which took place on the previous evening that is a few hours before the sale. The contention as presented to us ably by the learned counsel appeared quite attractive, but unfortunately, for the appellants the case set up at the trial and spoken to in his evidence was that after the execution of the sale deed in their favour the contesting respondents had never been in possession of the property, and that after the execution of the sale deed the appellants entered possession of the property in dispute. This plea is obviously false because the evidence discloses that there was a registered usufructuary mortgage executed by the 4th respondent in favour of the respondents 1 to 3 which was in existence on the day of sale in favour of the appellants. This registered usufructuray mortgage should have put the appellants in notice of the possession of the respondents. It was sought to be contended by the learned counsel that even if they had notice of the possession, it would only mean that they were in possession in pursuance of a usufructuary mortgage and not in pursuance of an agreement of sale. This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts therefore, we have no. hesitation in coming to the conclusion that all the courts below were right it holding that the appellants were not bona fide purchasers without notice.7. | 0[ds]This registered usufructuray mortgage should have put the appellants in notice of the possession of the respondents. It was sought to be contended by the learned counsel that even if they had notice of the possession, it would only mean that they were in possession in pursuance of a usufructuary mortgage and not in pursuance of an agreement of sale. This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts therefore, we have no. hesitation in coming to the conclusion that all the courts below were right it holding that the appellants were not bona fide purchasers without notice. | 0 | 1,070 | 158 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
KAILASAM, J.1. The unsuccessful defendants (defendants 2 to 7) in all the courts below in a suit for specific performance are the appellants by special leave before us.2. The first defendant (4th respondent) on receipt of a sum of Rs. 1, 300/- executed a sarllat in favour of the first plaintiff with condition that the first plaintiff would enter into possession of the said plot in lieu of the interest of the debt, After some time the fourth respondent gave up his residence and moved to a different place and while so doing expressed the desire that he wanted to dispose of the plot aforesaid and made a request to the plaintiff that he should purchase the same. The first plaintiff had already entered into possession and occupied the land. After sometime the 4th respondent settled with the plaintiff for the transaction of sale in respect of that plot for a sum of Rs. 1, 700/- On 2-6-1964 he received a sum of Rs. 100/- as earnest money from the plaintiffs. On 3-6-1964 the 4th respondent executed an agreement for sale also in favour of the plaintiffs. As plaintiffs had to pay an additional sum of Rs. 300/- and as plaintiffs did not have that amount plaintiffs stated that they will get the sale deed executed after payment. According to the plaintiffs, the defendants 2 to 7 who are appellants before us because of grievance against the plaintiffs, by a sale deed dated 4th June 1964 purchased the properties for a sum of Rs. 2000/-. The plaintiffs who are respondents 1 to 3 in this Court filed the suit for specific performance of their agreement for sale alleging that the sale in favour of defendants 2 to 7 appellants herein, was not bona fide and was with notice. The trial court raised certain issues. The issue relating to this question is issue No. 7 which is in the following terms :"Whether the defendants Nos. 2 to 7 are bona fide purchasers for value without notice? If so its effect?3. The trial court answered the issue in the negative holding that as respondents 1 to 3 were in possession from 1960 it must be held that they were in possession on 4-6-64 when the sale deed in favour of the appellants was executed. The respondents possession would have put the appellants on enquiry which if prosecuted would have disclosed a previous agreement and hence they cannot be called as transferees without notice.4. In the result the suit was decreed by the trial court with costs with a direction for performance of the contract to sell the disputed properties. An appeal was taken by the appellants to the Court of Civil Judge, Gorakhpur. The learned Judge also agreed with the reasoning of the trial court and dismissed the appeal. The second appeal to the High Court also failed and hence this appeal by special leave.5. In this appeal, Mr. Raju Ramachandran, counsel for the appellants, submitted that the courts below proceeded on an entirely different basis than the pleadings in coming to the conclusion that the defendants-appellants purchased the property without bona fides and with notice. He referred to paragraph 10 in the plaint where according to plaintiff the agreement dated 3-6-1964 was executed in the presence of defendants 2 to 7 and they fully knew it. The plea was reiterated in paragraph 14 where the plaintiff stated :"As the defendants had full knowledge of the agreement for sale dated 3-6-1964 they should not have got the sale deed executed. Having deceived the plaintiffs, in order to cause loss to the plaintiffs, they intentionally and maliciously got the sale deed executed on 4-6-1964 and that has no. binding upon the plaintiffs."6. On the pleadings the learned counsel submitted that the plaintiffs having failed in that plea that the defendants were present at the time of the agreement, they cannot rely on any constructive notice to them. The learned counsel further submitted that taking the facts of the case the agreement by the respondent 4 in favour of respondent 1 to 3 was between 5 and 6 P.M. on 3rd June 1964 while the sale deed in favour of the appellants was executed on the next day, there was no. opportunity for the appellants to have had knowledge of the transaction which took place on the previous evening that is a few hours before the sale. The contention as presented to us ably by the learned counsel appeared quite attractive, but unfortunately, for the appellants the case set up at the trial and spoken to in his evidence was that after the execution of the sale deed in their favour the contesting respondents had never been in possession of the property, and that after the execution of the sale deed the appellants entered possession of the property in dispute. This plea is obviously false because the evidence discloses that there was a registered usufructuary mortgage executed by the 4th respondent in favour of the respondents 1 to 3 which was in existence on the day of sale in favour of the appellants. This registered usufructuray mortgage should have put the appellants in notice of the possession of the respondents. It was sought to be contended by the learned counsel that even if they had notice of the possession, it would only mean that they were in possession in pursuance of a usufructuary mortgage and not in pursuance of an agreement of sale. This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts therefore, we have no. hesitation in coming to the conclusion that all the courts below were right it holding that the appellants were not bona fide purchasers without notice.7.
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0
### Explanation:
This registered usufructuray mortgage should have put the appellants in notice of the possession of the respondents. It was sought to be contended by the learned counsel that even if they had notice of the possession, it would only mean that they were in possession in pursuance of a usufructuary mortgage and not in pursuance of an agreement of sale. This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts therefore, we have no. hesitation in coming to the conclusion that all the courts below were right it holding that the appellants were not bona fide purchasers without notice.
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Ganpat Singh Vs. The State Of Madhya Pradesh | based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”. (See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 ; Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh, (2006) 10 SCC 172 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ; Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456 ; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SCC 733 ; Madhu v. State of Kerala, (2012) 2 SCC 399 ; Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of Andhra Pradesh, (2012) 6 SCC 174 ; Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439.”) 10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows : “The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”. (See Bodh Raj @ Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45 ; Jaswant Gir v. State of Punjab (2005) 12 SCC 438 ; Tipparam Prabhakar v. State of Andhra Pradesh, (2009) 13 SCC 534 ; Rishi Pal v. State of Uttarakhand, (2013) 12 SCC 551 ; Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279 ; Kiriti Pal v. State of West Bengal, (2015) 11 SCC 178 ; State of Karnataka v. Chand Basha, (2016) 1 SCC 501 ; Rambraksh v. State of Chhattisgarh, (2016) 12 SCC 251 ; Anjan Kumar Sharma v. State of Assam, 2017 (6) SCALE 556.”) 11. The case of the prosecution is riddled with unexplained contradictions, PW1-Kamlabai and PW2-Dhankunwarbai were crucial to the case of the prosecution for establishing that the deceased had visited them and that they had lent her silver ornaments ostensibly because she intended to arrange the engagement of her son Rakesh-PW4. Admittedly, neither PW1 nor PW2 were called upon to identify the jewellery alleged to have been recovered from the house of the Appellant. PW1 stated that the jewellery which she had lent weighed more than half a kg. PW2 deposed that the ornaments which she had lent weighed about 1.25 kgs. In the course of her cross-examination, PW1 stated that it was true that the ornaments which she had lent were commonly worn by women in the villages. PW2 also admitted that there were no identification marks on the ornaments and they were of a nature that is commonly used. PW5-Rekha, the daughter of the deceased, had (as the High Court observed) no opportunity to observe the ornaments on the person of the deceased. The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.12. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.13. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant. | 1[ds]The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.12. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.13. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant. | 1 | 2,367 | 365 | ### Instruction:
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based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”. (See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 ; Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh, (2006) 10 SCC 172 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ; Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456 ; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SCC 733 ; Madhu v. State of Kerala, (2012) 2 SCC 399 ; Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of Andhra Pradesh, (2012) 6 SCC 174 ; Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439.”) 10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows : “The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”. (See Bodh Raj @ Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45 ; Jaswant Gir v. State of Punjab (2005) 12 SCC 438 ; Tipparam Prabhakar v. State of Andhra Pradesh, (2009) 13 SCC 534 ; Rishi Pal v. State of Uttarakhand, (2013) 12 SCC 551 ; Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279 ; Kiriti Pal v. State of West Bengal, (2015) 11 SCC 178 ; State of Karnataka v. Chand Basha, (2016) 1 SCC 501 ; Rambraksh v. State of Chhattisgarh, (2016) 12 SCC 251 ; Anjan Kumar Sharma v. State of Assam, 2017 (6) SCALE 556.”) 11. The case of the prosecution is riddled with unexplained contradictions, PW1-Kamlabai and PW2-Dhankunwarbai were crucial to the case of the prosecution for establishing that the deceased had visited them and that they had lent her silver ornaments ostensibly because she intended to arrange the engagement of her son Rakesh-PW4. Admittedly, neither PW1 nor PW2 were called upon to identify the jewellery alleged to have been recovered from the house of the Appellant. PW1 stated that the jewellery which she had lent weighed more than half a kg. PW2 deposed that the ornaments which she had lent weighed about 1.25 kgs. In the course of her cross-examination, PW1 stated that it was true that the ornaments which she had lent were commonly worn by women in the villages. PW2 also admitted that there were no identification marks on the ornaments and they were of a nature that is commonly used. PW5-Rekha, the daughter of the deceased, had (as the High Court observed) no opportunity to observe the ornaments on the person of the deceased. The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.12. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.13. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant.
### Response:
1
### Explanation:
The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.12. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.13. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant.
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Tata Iron And Steel Co. Ltd Vs. S. N. Modak | finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted. 12. There is another aspect of this matter to which reference must be made. Section 33-A makes a special provisions for adjudication as to whether any employer has contravened the provisions of S. 33. This Section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of S. 33. Section 33-A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of S. 33 (2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under S. 10 of the Act. In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. 13. Now, take the present case and see how the acceptance of the appellants argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellants prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded. If the appellants argument is accepted and it is held that as soon as the main industrial disputes were finally determined, the application made by the appellant under Section 33 (2) automatically came to an end, the respondent would not be able to get any relief against the appellant for the wrongfully termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in case like the present, S. 33-A would be rendered nugatory, because the employer having duly applied under S. 33 (2) (b), the employee cannot complain that there has been a contravention of S. 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under S. 33 (2) (b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined. 14. It is of course true that under S. 33 the authority to grant permission or to accord approval in cases falling under S. 33 (1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because S. 33-B (2) seems to permit transfers of application before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is in an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under S. 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided. 15. This question has been considered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal West Bengal, 1964-2 Lab LJ 568: (AIR 1966 Cal 114 ); Mettur Industries Ltd. v. Sundara Naidu, 1963-2 Lab LJ 303 (Mad); and T. A. Shah v. State of Mysore, 1964-1 Lab LJ 237: (AIR 1963 Mys 241), respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Co. Ltd., Munnar v. Miss Alevamma Varughese, 1962-2 Lab LJ 158: (AIR 1963 Kerala 44); Om Prakash Sharma v. Industrial Tribunal, Punjab, 1962-2 Lab LJ 272 (Punj); and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal, 1964-2 lab LJ 53 (All), respectively. In our opinion, the former view does not, while the latter does, correctly represent the true legal position under Section 33 (2) (b). 16. That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point, because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of the evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appeals. | 0[ds]13. Now, take the present case and see how the acceptance of the appellants argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellants prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded. If the appellants argument is accepted and it is held that as soon as the main industrial disputes were finally determined, the application made by the appellant under Section 33 (2) automatically came to an end, the respondent would not be able to get any relief against the appellant for the wrongfully termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in case like the present, S. 33-A would be rendered nugatory, because the employer having duly applied under S. 33 (2) (b), the employee cannot complain that there has been a contravention of S. 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under S. 33 (2) (b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined14. It is of course true that under S. 33 the authority to grant permission or to accord approval in cases falling under S. 33 (1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because S. 33-B (2) seems to permit transfers of application before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is in an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under S. 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided15. This question has been considered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal West Bengal, 1964-2 Lab LJ 568: (AIR 1966 Cal 114 ); Mettur Industries Ltd. v. Sundara Naidu, 1963-2 Lab LJ 303 (Mad); and T. A. Shah v. State of Mysore, 1964-1 Lab LJ 237: (AIR 1963 Mys 241), respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Co. Ltd., Munnar v. Miss Alevamma Varughese, 1962-2 Lab LJ 158: (AIR 1963 Kerala 44); Om Prakash Sharma v. Industrial Tribunal, Punjab, 1962-2 Lab LJ 272 (Punj); and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal, 1964-2 lab LJ 53 (All), respectively. In our opinion, the former view does not, while the latter does, correctly represent the true legal position under Section 33 (2) (b)16. That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point, because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of the evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appealsThis argument in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employers right to terminate the services of the respondent according to the terms of services revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted12. There is another aspect of this matter to which reference must be made. SectionA makes a special provisions for adjudication as to whether any employer has contravened the provisions of S. 33. This Section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of S. 33. SectionA provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of S. 33 (2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under S. 10 of the Act. In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. | 0 | 4,632 | 1,291 | ### Instruction:
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finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted. 12. There is another aspect of this matter to which reference must be made. Section 33-A makes a special provisions for adjudication as to whether any employer has contravened the provisions of S. 33. This Section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of S. 33. Section 33-A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of S. 33 (2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under S. 10 of the Act. In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. 13. Now, take the present case and see how the acceptance of the appellants argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellants prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded. If the appellants argument is accepted and it is held that as soon as the main industrial disputes were finally determined, the application made by the appellant under Section 33 (2) automatically came to an end, the respondent would not be able to get any relief against the appellant for the wrongfully termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in case like the present, S. 33-A would be rendered nugatory, because the employer having duly applied under S. 33 (2) (b), the employee cannot complain that there has been a contravention of S. 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under S. 33 (2) (b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined. 14. It is of course true that under S. 33 the authority to grant permission or to accord approval in cases falling under S. 33 (1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because S. 33-B (2) seems to permit transfers of application before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is in an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under S. 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided. 15. This question has been considered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal West Bengal, 1964-2 Lab LJ 568: (AIR 1966 Cal 114 ); Mettur Industries Ltd. v. Sundara Naidu, 1963-2 Lab LJ 303 (Mad); and T. A. Shah v. State of Mysore, 1964-1 Lab LJ 237: (AIR 1963 Mys 241), respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Co. Ltd., Munnar v. Miss Alevamma Varughese, 1962-2 Lab LJ 158: (AIR 1963 Kerala 44); Om Prakash Sharma v. Industrial Tribunal, Punjab, 1962-2 Lab LJ 272 (Punj); and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal, 1964-2 lab LJ 53 (All), respectively. In our opinion, the former view does not, while the latter does, correctly represent the true legal position under Section 33 (2) (b). 16. That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point, because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of the evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appeals.
### Response:
0
### Explanation:
would mean that in case like the present, S. 33-A would be rendered nugatory, because the employer having duly applied under S. 33 (2) (b), the employee cannot complain that there has been a contravention of S. 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under S. 33 (2) (b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined14. It is of course true that under S. 33 the authority to grant permission or to accord approval in cases falling under S. 33 (1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because S. 33-B (2) seems to permit transfers of application before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is in an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under S. 33 (2) (b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided15. This question has been considered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal West Bengal, 1964-2 Lab LJ 568: (AIR 1966 Cal 114 ); Mettur Industries Ltd. v. Sundara Naidu, 1963-2 Lab LJ 303 (Mad); and T. A. Shah v. State of Mysore, 1964-1 Lab LJ 237: (AIR 1963 Mys 241), respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Co. Ltd., Munnar v. Miss Alevamma Varughese, 1962-2 Lab LJ 158: (AIR 1963 Kerala 44); Om Prakash Sharma v. Industrial Tribunal, Punjab, 1962-2 Lab LJ 272 (Punj); and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal, 1964-2 lab LJ 53 (All), respectively. In our opinion, the former view does not, while the latter does, correctly represent the true legal position under Section 33 (2) (b)16. That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the action proposed to be taken by the appellant against the respondent. We have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point, because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of the evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appealsThis argument in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employers right to terminate the services of the respondent according to the terms of services revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted12. There is another aspect of this matter to which reference must be made. SectionA makes a special provisions for adjudication as to whether any employer has contravened the provisions of S. 33. This Section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of S. 33. SectionA provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of S. 33 (2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under S. 10 of the Act. In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned.
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The Management Of U.B. Dutt & Co Vs. Workmen Of U.B. Dutt & Co | it was clearly a colourable exercise of the power under that rule inasmuch as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to the employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have gone wrong.4. Learned counsel for the appellant however urges that the employer was empowered to take action under R. 18(a) of the Standing Orders and having taken action under that rule there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relied on the decision of this Court in Parshotam Lal Dhingra v. Union of India 1958 SCR 828 : (AIR 1958 SC 36 ). That was however a case of a pub1ic servant and the considerations that apply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the observations at p. 862 (of SCR d): (at R. 49 of AIR), where it was observe as follows :-"It is true that the misconduct negligence, inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is as Chagla C. J. has said in Srinivas Ganesh v. Union of India (S) AIR 1956 Bom 455 wholly irrelevant."It is urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10. | 0[ds]3. We are of opinion that this claim of the appellant cannot be accepted, and it is too late in the day for an employer to raise such a claim for it amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication for over a long period of time now. As far back as 1952, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning anyreason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have goneis urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10. | 0 | 2,303 | 860 | ### Instruction:
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it was clearly a colourable exercise of the power under that rule inasmuch as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to the employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have gone wrong.4. Learned counsel for the appellant however urges that the employer was empowered to take action under R. 18(a) of the Standing Orders and having taken action under that rule there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relied on the decision of this Court in Parshotam Lal Dhingra v. Union of India 1958 SCR 828 : (AIR 1958 SC 36 ). That was however a case of a pub1ic servant and the considerations that apply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the observations at p. 862 (of SCR d): (at R. 49 of AIR), where it was observe as follows :-"It is true that the misconduct negligence, inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is as Chagla C. J. has said in Srinivas Ganesh v. Union of India (S) AIR 1956 Bom 455 wholly irrelevant."It is urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10.
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3. We are of opinion that this claim of the appellant cannot be accepted, and it is too late in the day for an employer to raise such a claim for it amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication for over a long period of time now. As far back as 1952, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning anyreason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have goneis urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10.
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Rukmani & Others Vs. New India Assurance Company & Others | 1. Leave granted.2. The Insurance Company has been absolved from liability in respect of the claim for compensation by the High Court on the ground that the driver had no valid licence. The High Court has noted that under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939, if the Insurance Company contends that the driver of the vehicle had no valid driving licence, the burden is on the Insurance Company to establish it. The High Court, however, came to the conclusion that this burden had been discharged by the Insurance Company 3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it." * In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. | 1[ds]on he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. | 1 | 350 | 153 | ### Instruction:
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1. Leave granted.2. The Insurance Company has been absolved from liability in respect of the claim for compensation by the High Court on the ground that the driver had no valid licence. The High Court has noted that under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939, if the Insurance Company contends that the driver of the vehicle had no valid driving licence, the burden is on the Insurance Company to establish it. The High Court, however, came to the conclusion that this burden had been discharged by the Insurance Company 3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it." * In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored.
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on he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored.
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Cantonment Board, Mhow, Saugor and Another Vs. M.P State Road Transport Corpn, Rewa Transport Services, Rewa | India Act. 1935 was under consideration. The Entry in question was to the effect:- "taxes on luxury or entertainment or amusement" It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs.100 per a nnum as provided under Section 142A of the Government of India Act 1935 and Rs.250 per a nnum under Article 276(2) of the Constitution. The Court repelling the argument held:- "The entry contemplates luxuries, entertainment, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded , as we think they must, there can be no reason to differentiate between the given and the receiver of the luxuries, entertainments or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regards an entertainment, it does become a tax on expenditure, entertainments or amusements . The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling." * 14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use under section 3(2) of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127(1) (iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127(1)(iii) of the Madhya Pradesh Municipality Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. 15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the Proviso will not be entitled to receive the said grant unless it agrees not to recover any tax, toll or licence in respect of th e Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the commencement of the Taxation Act and t he said provision has no connection with the imposition of tax on Motor Vehicle Which is governed by section 3 (2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of section 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use notwithstanding the bar under Section 6.Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in asmuchas we are not concerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on Motor Vehicles under Section 3(2) of the Taxation Act. it is nobodys case that no tax was being levied on Motor Vehicles which is used or kep t for use under Section 3(2) of the Madhya Pradesh Motor Vehicle Taxation Act , 1947. That apart to apply the principle of desuetude it is necessary to establish that the state in question has been in disuse for long and the contrary practic e of some duration gas evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand. 16. | 1[ds]As has been stated earlier under the Taxation Act, Tax could be imposed on the Motor Vehicles which is used or Kept for use as provided in Section 3(2) of the said Act and there is no provision for imposition of tax on vehicles which is neither used nor kept for use but for mere entry into any municipal limits . When the legislatures imposed a ban on levy of tax by any local authority under section 6 of the Taxation Act what is prohibited is levy of tax which is leviable under section 3(2) of the Taxation Act. When the same legislature enacted the Municipalities to impose tax on vehicles entering the limits of the Municipality under Section 127 (1)(iii) they must be presumed to be aware of the pro visions of the Taxation Act and leviability of the tax thereunder in respect of Motor Vehicles used or kept for use. The expression `vehicle having been defined in Section 2(38) to include a bicycle, a tricycle, motor car and ever wheel conveyance which is used or capable of being used on a public street, it is not possible for us to accept the contention of Mr. Agrawal, learned counsel appearing for the respondents to interpret the same expression to mean vehicles other than the `motor vehicles. Since the Taxation Act does not provide for any imposition of tax on entry of the Motor vehicles within Municipal limits whereas the municipal Act authorises for such levy under Section 127(1)(iii) we do not find any inconsistency or repugnancy between the two provisions. In other words while under the Motor Vehicle Taxation Act a tax could be imposed on Motor Vehicles used or kept for use by the registering authority including the Municipalities under section 127(1)(iii) of the Municipalities Act. But so far as the imposition of tax motor Vehicle entering into the Municipal limits is concerned, which is provided under section 127(1)(iii), of the Municipalities Act the said provisions cannot be said to be repugnant to the special statute in respect of Motor Vehicles, namely the Motor Vehicles Taxation Act. It has been stated by this court in the case of Ashoka Marketing ltd. And another etc. etc. vs, Punjab National Bank and others etc. etc. that the principal of statutory interpretation, namely, later laws abrogate earlier contrary laws is subject to exception that a general provision does not derogate from a special one. This would mean that where a literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it is presumed that the situation was intended to be continued to be dealt with by the specific provision rather than the later general one. in other words if the Taxation Act would have contained a provision authorising imposition of Entry Tax on Motor Vehicle than certainly the later general Act, namely the municipalities Act even if by making a provision of imposition of entry tax on Vehicles entering in to the Municipal limits would not have operated. But since the special law, namely, the Taxation Act does not have any provision authorising imposition of tax on entry of Motor Vehicles. The said provision would remain valid and would be applicable and there would be no bar for the municipality to impose entry tax on all vehicles including Motor Vehicles including Motor Vehicles for entering in to the limits of the Municipalities. This Construction being the only harmonious construction by which both the provisions remain operative it is the duty of the court adopt such construction. There is no dispute with the proposition advanced by Mr . Lekhi, learned senior counsel with regard to theory of implied repeal.This theory the learned the senior counsel advanced since the Municipalities Act did not repeal the provisions of the Motor Vehicles Taxation ActBut in view of our conclusion that there is no repugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127(1)(iii) of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have no application. In the connection it would be appropriate for us to notice one decision of this court in the Case of The Western India Theatres Ltd. vs. The Cantonment Board, Poona, Cantonment, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of the Government of India Act. 1935 was under considerationThus considered, the tax leviable on Motor Vehicles when used or kept for use under section 3(2) of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127(1) (iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127(1)(iii) of the Madhya Pradesh Municipality Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation ActSo far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the Proviso will not be entitled to receive the said grant unless it agrees not to recover any tax, toll or licence in respect of th e Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the commencement of the Taxation Act and t he said provision has no connection with the imposition of tax on Motor Vehicle Which is governed by section 3 (2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of section 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use notwithstanding the bar under Section 6.Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in asmuchas we are not concerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on Motor Vehicles under Section 3(2) of the Taxation Act. it is nobodys case that no tax was being levied on Motor Vehicles which is used or kep t for use under Section 3(2) of the Madhya Pradesh Motor Vehicle Taxation Act , 1947. That apart to apply the principle of desuetude it is necessary to establish that the state in question has been in disuse for long and the contrary practic e of some duration gas evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand. | 1 | 4,663 | 1,647 | ### 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:
India Act. 1935 was under consideration. The Entry in question was to the effect:- "taxes on luxury or entertainment or amusement" It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs.100 per a nnum as provided under Section 142A of the Government of India Act 1935 and Rs.250 per a nnum under Article 276(2) of the Constitution. The Court repelling the argument held:- "The entry contemplates luxuries, entertainment, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded , as we think they must, there can be no reason to differentiate between the given and the receiver of the luxuries, entertainments or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regards an entertainment, it does become a tax on expenditure, entertainments or amusements . The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling." * 14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use under section 3(2) of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127(1) (iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127(1)(iii) of the Madhya Pradesh Municipality Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. 15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the Proviso will not be entitled to receive the said grant unless it agrees not to recover any tax, toll or licence in respect of th e Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the commencement of the Taxation Act and t he said provision has no connection with the imposition of tax on Motor Vehicle Which is governed by section 3 (2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of section 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use notwithstanding the bar under Section 6.Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in asmuchas we are not concerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on Motor Vehicles under Section 3(2) of the Taxation Act. it is nobodys case that no tax was being levied on Motor Vehicles which is used or kep t for use under Section 3(2) of the Madhya Pradesh Motor Vehicle Taxation Act , 1947. That apart to apply the principle of desuetude it is necessary to establish that the state in question has been in disuse for long and the contrary practic e of some duration gas evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand. 16.
### Response:
1
### Explanation:
since the special law, namely, the Taxation Act does not have any provision authorising imposition of tax on entry of Motor Vehicles. The said provision would remain valid and would be applicable and there would be no bar for the municipality to impose entry tax on all vehicles including Motor Vehicles including Motor Vehicles for entering in to the limits of the Municipalities. This Construction being the only harmonious construction by which both the provisions remain operative it is the duty of the court adopt such construction. There is no dispute with the proposition advanced by Mr . Lekhi, learned senior counsel with regard to theory of implied repeal.This theory the learned the senior counsel advanced since the Municipalities Act did not repeal the provisions of the Motor Vehicles Taxation ActBut in view of our conclusion that there is no repugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127(1)(iii) of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have no application. In the connection it would be appropriate for us to notice one decision of this court in the Case of The Western India Theatres Ltd. vs. The Cantonment Board, Poona, Cantonment, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of the Government of India Act. 1935 was under considerationThus considered, the tax leviable on Motor Vehicles when used or kept for use under section 3(2) of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127(1) (iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127(1)(iii) of the Madhya Pradesh Municipality Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation ActSo far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the Proviso will not be entitled to receive the said grant unless it agrees not to recover any tax, toll or licence in respect of th e Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the commencement of the Taxation Act and t he said provision has no connection with the imposition of tax on Motor Vehicle Which is governed by section 3 (2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of section 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use notwithstanding the bar under Section 6.Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in asmuchas we are not concerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on Motor Vehicles under Section 3(2) of the Taxation Act. it is nobodys case that no tax was being levied on Motor Vehicles which is used or kep t for use under Section 3(2) of the Madhya Pradesh Motor Vehicle Taxation Act , 1947. That apart to apply the principle of desuetude it is necessary to establish that the state in question has been in disuse for long and the contrary practic e of some duration gas evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand.
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Anil Daggi S/O. Tukaram Mandhare & Others Vs. State of Maharashtra | at about 5.00 PM. The dead body of deceased was found lying by the side of road within no time. It is in such circumstances it was necessary for the appellants to explain whether the deceased left their company and at what point of time. In the present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruled out. 13. In the instant case, the manner in which the omissions were brought in the cross-examination of Chintaman by cross-examining counsel is concerned, we disapprove the same. The question relating to each omission ought to have been separately asked and answer to the said question also should have been recorded separately and each omission ought to have been proved by the investigating officer separately. 14. In the instant case, we want to express that the trial Court while conducting Sessions Trial needs to pay proper attention to the procedural aspects of the trial. It is the duty of the trial Court to record evidence of the witnesses as per the procedure prescribed in this regard, particularly, in respect of omissions and contradictions. In the instant case, Kalakdas (PW 7), a panch witness on memorandum statement and discovery of weapon of offence, has not supported the prosecution. Similarly, Mohd. Shabbir (PW 5), another panch witness examined by the prosecution to prove seizure of full pant of appellant no.1, has also turned hostile. However, discovery of the weapon of offence as well as seizure of the full pant is proved by Dilip Kulkarni (PW 14), investigating officer. Both these articles were stained with blood of A group, which is the blood group of deceased. It is nodoubt true that if the witnesses do not support the prosecution, the Court should be slow in taking resort to the evidence of investigating officer in order to hold that the recovery and discovery stand proved. However, in a given case where the evidence of investigating officer is cogent, convincing and straight-forward, it is not prohibited in law to place reliance on the testimony of such evidence of Investigating Officer. In the instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisite chain: a) On the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PW 8). b) Deceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruled out. 15. In the instant case, discovery of weapon of offence assumes importance because the said weapon had a human blood of A group which was the blood group of deceased, which is an incriminating circumstance. Similarly, the full pant of appellant no. 1 which was seized by the investigating officer also had a human blood of A group which is also an incriminating circumstance. It is well settled that when the conviction is based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established. The circumstances if considered cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. The evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence of the accused. 16. It is well settled that the evidence of the last seen in the normal course may provide for a link in the chain. However, it becomes clinching and conclusive if the time gap between the deceased having been last seen in the company of the accused persons and the murder is proximate. In the instant case, deceased Rahul was not only last seen with the appellants, but he left the house of Chintaman (PW 8) at about 5.00 p.m. along with the appellants. The information about the dead body of deceased with multiple injuries was received at about 7 p.m. The dead body of deceased was lying by the side of the road about 10 kms. From Bhandara city and therefore, it is apparent that the deceased met homicidal death less than two hours from the time he left in the company of the appellants from the house of Chintaman. In the instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code. | 0[ds]We cannot close our eyes to the fact that, after deceased left the house of Chintaman along with appellants, his dead body was found almost immediately and in absence of any explanation from the appellants, in our view, the circumstance of last seen is a decisive circumstance and assumes importance in the presentthe present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruledthe instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisiteOn the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PWDeceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruledthe instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code. | 0 | 4,119 | 447 | ### 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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at about 5.00 PM. The dead body of deceased was found lying by the side of road within no time. It is in such circumstances it was necessary for the appellants to explain whether the deceased left their company and at what point of time. In the present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruled out. 13. In the instant case, the manner in which the omissions were brought in the cross-examination of Chintaman by cross-examining counsel is concerned, we disapprove the same. The question relating to each omission ought to have been separately asked and answer to the said question also should have been recorded separately and each omission ought to have been proved by the investigating officer separately. 14. In the instant case, we want to express that the trial Court while conducting Sessions Trial needs to pay proper attention to the procedural aspects of the trial. It is the duty of the trial Court to record evidence of the witnesses as per the procedure prescribed in this regard, particularly, in respect of omissions and contradictions. In the instant case, Kalakdas (PW 7), a panch witness on memorandum statement and discovery of weapon of offence, has not supported the prosecution. Similarly, Mohd. Shabbir (PW 5), another panch witness examined by the prosecution to prove seizure of full pant of appellant no.1, has also turned hostile. However, discovery of the weapon of offence as well as seizure of the full pant is proved by Dilip Kulkarni (PW 14), investigating officer. Both these articles were stained with blood of A group, which is the blood group of deceased. It is nodoubt true that if the witnesses do not support the prosecution, the Court should be slow in taking resort to the evidence of investigating officer in order to hold that the recovery and discovery stand proved. However, in a given case where the evidence of investigating officer is cogent, convincing and straight-forward, it is not prohibited in law to place reliance on the testimony of such evidence of Investigating Officer. In the instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisite chain: a) On the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PW 8). b) Deceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruled out. 15. In the instant case, discovery of weapon of offence assumes importance because the said weapon had a human blood of A group which was the blood group of deceased, which is an incriminating circumstance. Similarly, the full pant of appellant no. 1 which was seized by the investigating officer also had a human blood of A group which is also an incriminating circumstance. It is well settled that when the conviction is based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established. The circumstances if considered cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. The evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence of the accused. 16. It is well settled that the evidence of the last seen in the normal course may provide for a link in the chain. However, it becomes clinching and conclusive if the time gap between the deceased having been last seen in the company of the accused persons and the murder is proximate. In the instant case, deceased Rahul was not only last seen with the appellants, but he left the house of Chintaman (PW 8) at about 5.00 p.m. along with the appellants. The information about the dead body of deceased with multiple injuries was received at about 7 p.m. The dead body of deceased was lying by the side of the road about 10 kms. From Bhandara city and therefore, it is apparent that the deceased met homicidal death less than two hours from the time he left in the company of the appellants from the house of Chintaman. In the instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code.
### Response:
0
### Explanation:
We cannot close our eyes to the fact that, after deceased left the house of Chintaman along with appellants, his dead body was found almost immediately and in absence of any explanation from the appellants, in our view, the circumstance of last seen is a decisive circumstance and assumes importance in the presentthe present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruledthe instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisiteOn the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PWDeceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruledthe instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code.
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Gujarat Urja Vikas Nigam Limited Vs. Tarini Infrastructure Ltd | the power to enhance the rate of dead rent cannot be so exercised as to affect subsisting leases and that unless this construction were placed upon sub-section (1), the power conferred by that sub-section would be bad in law as being an arbitrary power. It was submitted that a mining lease is the result of a contract entered into between two parties and dead rent is part of the consideration for the grant of the lease, and just as in the case of a contract of sale of goods, it cannot be left to the sweet will of the seller to charge what price he liked, in the same way in the case of leases and concessions granted under Section 15(1), it cannot be left to the State Governments to amend the rules so as to charge whatever dead rent they like and whenever they like during the subsistence of the lease. We find no substance in either of these submissions. A quarry lease, mining lease or other mineral concession in respect of a minor mineral does not stand on the same footing as an ordinary contract. These leases and concessions are granted by the State Governments pursuant to rules made under the statutory power conferred upon them by a regulatory Act. Minerals are part of the material resources which constitute a nations natural wealth and if the nation is to advance industrially and if its economy is to be benefited by the proper development and exploitation of these resources, they cannot be permitted to be frittered away and exhausted within a few years by indiscriminate exploitation without any regard to public and national interest. The same view was expressed by the Court in State of Tamil Nadu v. Hind Stone. ............ ............ ............ The presumption is that an authority clothed with a statutory power will exercise such power reasonably, and if in the public interest and for the efficacious regulation of mines and quarries of minor minerals and the proper development of such minerals, a State Government as the delegate of the Union Government thinks fit to amend the rules so as to enhance the rate of dead rent, it cannot be said that it is prevented from doing so by the principles of the ordinary law of contracts. It may be that in certain cases by enhancing the rate of dead rent the holders of leases in respect of certain types of minor minerals may be adversely affected but private interest cannot be permitted to override public interest. Conservation of minerals and their proper exploitation result in securing the maximum benefit to the community and it is open to the State Governments to enhance the rate of dead rent so as to ensure the proper conservation and development of minor minerals even though it may affect a lessees liability under a subsisting lease." 17. A similar view expressed in Shree Sidhbali Steels Ltd. and Others v. State of Uttar Pradesh and Others, (2011) 3 SCC 193 may also be noticed. "41.By virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision in the Electricity (Supply) Act, 1948 is subject to the State Governments power to issue notification under Section 49 of the Act granting rebate, the State Government, in view of Section 21 of the General Clauses Act, can always withdraw, rescind, add to or modify an exemption notification. No industry can claim as of right that the Government should exercise its power under Section 49 and offer rebate and it is for the Government to decide whether the conditions are such that rebate should be granted or not." 18. Before parting, a word about the recent pronouncements of this Court in Gujarat Urja Vikas Nigam Limited v. EMCO Ltd. & Anr. (supra) and Bangalore Electricity Supply Co. v. Konark Power Projects Ltd. (supra), relied upon by the appellant. All that would be necessary to note in this regard is the context in which the bar of a review of the terms of a PPA was found by this Court in the above cases. In Gujarat Urja Vikas Nigam Limited v. EMCO Ltd. & Anr. (supra) the power purchaser sought the benefit of a second tariff order made effective to projects commissioned after 29.01.2012 (the power purchaser had commissioned its project on 02.03.2012) though under the PPA it was to be governed by the first tariff order of January, 2010. Under the first tariff order for such projects which were not commissioned on or before the date fixed under the said order, namely, 31.11.2011 the tariff payable was to be determined by the Gujarat Electricity Regulatory Commission. The power producer in the above case did not seek determination of a separate tariff but what was sought was a declaration that the second tariff order dated 27.01.2012 applicable to PPA(s) after 29.01.2012 would be applicable. It is in this context that this Court had taken the view that the power producer would not be relieved of its contractual obligations under the PPA. In the case of Bangalore Electricity Supply Co. v. Konark Power Projects Ltd. (supra), this Court held that it was beyond the power of State Commission to vary the tariff fixed under the approved PPA in view of the specific provisions in Regulations 5.1 and 9 of the KERC(Power Procurement from Renewable Sources by Distribution Licensee) Regulations, 2004 and 2011 respectively as the same specifically excluded a PPA concluded prior to the date of notification of the Regulations in question. 19. In view of the above, the | 0[ds]In view ofSection 86(1) (b) the Court must lean in favour of flexibility and not read inviolability in terms of the PPA insofar as the tariff stipulated therein as approved by the Commission is concerned. It would be a sound principle of interpretation to confer such a power if public interest dictated by the surrounding events and circumstances require a review of the tariff. The facts of the present case, as elaborately noted at the threshold of the present opinion, would suggest that the Court must lean in favour of such a view also having due regard to the provisions of Sections 14 and 21 of the General Clauses Act, 1898.the first tariff order for such projects which were not commissioned on or before the date fixed under the said order, namely, 31.11.2011 the tariff payable was to be determined by the Gujarat Electricity Regulatory Commission. The power producer in the above case did not seek determination of a separate tariff but what was sought was a declaration that the second tariff order dated 27.01.2012 applicable to PPA(s) after 29.01.2012 would be applicable. It is in this context that this Court had taken the view that the power producer would not be relieved of its contractual obligations under the PPA. | 0 | 7,831 | 232 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the power to enhance the rate of dead rent cannot be so exercised as to affect subsisting leases and that unless this construction were placed upon sub-section (1), the power conferred by that sub-section would be bad in law as being an arbitrary power. It was submitted that a mining lease is the result of a contract entered into between two parties and dead rent is part of the consideration for the grant of the lease, and just as in the case of a contract of sale of goods, it cannot be left to the sweet will of the seller to charge what price he liked, in the same way in the case of leases and concessions granted under Section 15(1), it cannot be left to the State Governments to amend the rules so as to charge whatever dead rent they like and whenever they like during the subsistence of the lease. We find no substance in either of these submissions. A quarry lease, mining lease or other mineral concession in respect of a minor mineral does not stand on the same footing as an ordinary contract. These leases and concessions are granted by the State Governments pursuant to rules made under the statutory power conferred upon them by a regulatory Act. Minerals are part of the material resources which constitute a nations natural wealth and if the nation is to advance industrially and if its economy is to be benefited by the proper development and exploitation of these resources, they cannot be permitted to be frittered away and exhausted within a few years by indiscriminate exploitation without any regard to public and national interest. The same view was expressed by the Court in State of Tamil Nadu v. Hind Stone. ............ ............ ............ The presumption is that an authority clothed with a statutory power will exercise such power reasonably, and if in the public interest and for the efficacious regulation of mines and quarries of minor minerals and the proper development of such minerals, a State Government as the delegate of the Union Government thinks fit to amend the rules so as to enhance the rate of dead rent, it cannot be said that it is prevented from doing so by the principles of the ordinary law of contracts. It may be that in certain cases by enhancing the rate of dead rent the holders of leases in respect of certain types of minor minerals may be adversely affected but private interest cannot be permitted to override public interest. Conservation of minerals and their proper exploitation result in securing the maximum benefit to the community and it is open to the State Governments to enhance the rate of dead rent so as to ensure the proper conservation and development of minor minerals even though it may affect a lessees liability under a subsisting lease." 17. A similar view expressed in Shree Sidhbali Steels Ltd. and Others v. State of Uttar Pradesh and Others, (2011) 3 SCC 193 may also be noticed. "41.By virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision in the Electricity (Supply) Act, 1948 is subject to the State Governments power to issue notification under Section 49 of the Act granting rebate, the State Government, in view of Section 21 of the General Clauses Act, can always withdraw, rescind, add to or modify an exemption notification. No industry can claim as of right that the Government should exercise its power under Section 49 and offer rebate and it is for the Government to decide whether the conditions are such that rebate should be granted or not." 18. Before parting, a word about the recent pronouncements of this Court in Gujarat Urja Vikas Nigam Limited v. EMCO Ltd. & Anr. (supra) and Bangalore Electricity Supply Co. v. Konark Power Projects Ltd. (supra), relied upon by the appellant. All that would be necessary to note in this regard is the context in which the bar of a review of the terms of a PPA was found by this Court in the above cases. In Gujarat Urja Vikas Nigam Limited v. EMCO Ltd. & Anr. (supra) the power purchaser sought the benefit of a second tariff order made effective to projects commissioned after 29.01.2012 (the power purchaser had commissioned its project on 02.03.2012) though under the PPA it was to be governed by the first tariff order of January, 2010. Under the first tariff order for such projects which were not commissioned on or before the date fixed under the said order, namely, 31.11.2011 the tariff payable was to be determined by the Gujarat Electricity Regulatory Commission. The power producer in the above case did not seek determination of a separate tariff but what was sought was a declaration that the second tariff order dated 27.01.2012 applicable to PPA(s) after 29.01.2012 would be applicable. It is in this context that this Court had taken the view that the power producer would not be relieved of its contractual obligations under the PPA. In the case of Bangalore Electricity Supply Co. v. Konark Power Projects Ltd. (supra), this Court held that it was beyond the power of State Commission to vary the tariff fixed under the approved PPA in view of the specific provisions in Regulations 5.1 and 9 of the KERC(Power Procurement from Renewable Sources by Distribution Licensee) Regulations, 2004 and 2011 respectively as the same specifically excluded a PPA concluded prior to the date of notification of the Regulations in question. 19. In view of the above, the
### Response:
0
### Explanation:
In view ofSection 86(1) (b) the Court must lean in favour of flexibility and not read inviolability in terms of the PPA insofar as the tariff stipulated therein as approved by the Commission is concerned. It would be a sound principle of interpretation to confer such a power if public interest dictated by the surrounding events and circumstances require a review of the tariff. The facts of the present case, as elaborately noted at the threshold of the present opinion, would suggest that the Court must lean in favour of such a view also having due regard to the provisions of Sections 14 and 21 of the General Clauses Act, 1898.the first tariff order for such projects which were not commissioned on or before the date fixed under the said order, namely, 31.11.2011 the tariff payable was to be determined by the Gujarat Electricity Regulatory Commission. The power producer in the above case did not seek determination of a separate tariff but what was sought was a declaration that the second tariff order dated 27.01.2012 applicable to PPA(s) after 29.01.2012 would be applicable. It is in this context that this Court had taken the view that the power producer would not be relieved of its contractual obligations under the PPA.
|
Lakshmana Nadar And Others Vs. R. Ramier | should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4, 000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow." It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testators death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry.Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur [(1874-75) 2 I.A. 256.]. This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms :-"the remaining milkiut and minhai estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son)."13. The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows :-"Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husbands estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be.Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning."14. These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiut estates and the slaves.Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan [(1898) I.L.R. 22 Bom. 409.]. The will there ran as follows :-"When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wifes death, my daughter Mahalaxmi is owner of the said property after that."15. It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs.16. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testators intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widows estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a Hindu widows estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widows estate "till your lifetime" and of the omission from therein of words such as malik etc., while describing the widows estate. Mr. Krishnaswami Iyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughters estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widows estate. | 0[ds]At one time it was a moot point whether a Hindu widows estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The courts primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.Considering the will in the light of these principles, it seems to us that Lakshminarayana Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation by way of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his minds eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widows estate on her the daughter will, only have a mere spas successions under the Hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left undisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy the entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widows estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of thewas held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to herconsidering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testators intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widows estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a Hindu widows estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widows estate "till your lifetime" and of the omission from therein of words such as malik etc., while describing the widows estate. Mr. Krishnaswami Iyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughters estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widows estate. | 0 | 5,816 | 931 | ### 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:
should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4, 000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow." It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testators death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry.Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur [(1874-75) 2 I.A. 256.]. This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms :-"the remaining milkiut and minhai estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son)."13. The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows :-"Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husbands estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be.Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning."14. These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiut estates and the slaves.Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan [(1898) I.L.R. 22 Bom. 409.]. The will there ran as follows :-"When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wifes death, my daughter Mahalaxmi is owner of the said property after that."15. It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs.16. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testators intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widows estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a Hindu widows estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widows estate "till your lifetime" and of the omission from therein of words such as malik etc., while describing the widows estate. Mr. Krishnaswami Iyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughters estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widows estate.
### Response:
0
### Explanation:
At one time it was a moot point whether a Hindu widows estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The courts primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.Considering the will in the light of these principles, it seems to us that Lakshminarayana Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation by way of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his minds eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widows estate on her the daughter will, only have a mere spas successions under the Hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left undisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy the entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widows estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of thewas held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to herconsidering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testators intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widows estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a Hindu widows estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widows estate "till your lifetime" and of the omission from therein of words such as malik etc., while describing the widows estate. Mr. Krishnaswami Iyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughters estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widows estate.
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National Insurance Co. Ltd Vs. Tejinder Singh Gujral & Another | 1. In these appeals the only common question that arises for consideration is whether the liability of the Insurance Company is limited or unlimited.2. No doubt the Motor Accident Claims Tribunal in its order has referred that the policy finds a place on the file of the Court, but that has not been marked as an exhibit nor has anybody spoken about it. Still the Tribunal has held that the liability was limited purporting to rely on the policy.3. The claimants and the insured preferred appeals against the Tribunals order in the Punjab and Haryana High Court. One of the challenges was regarding the extent of liability of the Insurance Company, whether it is limited or unlimited. Before the learned Single Judge, no attempt was made by the Insurance Company to mark/exhibit the insurance policy. On the other hand, it appears that the appellant filed an application seeking permission of the Court to take over all the defence of the insured. That application was dismissed by a learned Single Judge of the High Court and against that order, LP appeal was filed to the Division Bench. It is seen from the order of the Division Bench that there were two applications filed by the Insurance Company: one for taking over all the defence of the insured and the other for amending the written statement presumably to plead that the liability was limited which was not there earlier. When the application for amendment of the written statement was taken up, the appellant withdrew the same. After all this, for the first time before the Division Bench when the appeal against interim order was taken up for hearing, the appellant seems to have attempted to file the insurance policy to sustain its plea that the liability was limited. However, that was not allowed by the High Court. The LPA was dismissed. Thereafter the learned Single Judge had enhanced the compensation on the appeal filed by the claimants and directed the Insurance Company to pay the entire amount of the compensation.4. Against that the Insurance Company preferred appeals to the Division Bench, which were also dismissed. 5. This Court also gave one opportunity by order dated 14-3-1988 permitting the Insurance Company to file additional documents within four weeks. We presume that it was at the request of the counsel appearing for the Insurance Company to produce the policy and other documents as additional evidence, that order came to be passed. Even this opportunity was not availed of by the Insurance Company. Till date no application was filed to produce the insurance policy. Under these circumstances and in the absence of the document (insurance policy), we do not think that the question of extent of liability as fixed by the High Court can be challenged. | 0[ds]5. This Court also gave one opportunity by order datedpermitting the Insurance Company to file additional documents within four weeks. We presume that it was at the request of the counsel appearing for the Insurance Company to produce the policy and other documents as additional evidence, that order came to be passed. Even this opportunity was not availed of by the Insurance Company. Till date no application was filed to produce the insurance policy. Under these circumstances and in the absence of the document (insurance policy), we do not think that the question of extent of liability as fixed by the High Court can be challenged. | 0 | 498 | 120 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
1. In these appeals the only common question that arises for consideration is whether the liability of the Insurance Company is limited or unlimited.2. No doubt the Motor Accident Claims Tribunal in its order has referred that the policy finds a place on the file of the Court, but that has not been marked as an exhibit nor has anybody spoken about it. Still the Tribunal has held that the liability was limited purporting to rely on the policy.3. The claimants and the insured preferred appeals against the Tribunals order in the Punjab and Haryana High Court. One of the challenges was regarding the extent of liability of the Insurance Company, whether it is limited or unlimited. Before the learned Single Judge, no attempt was made by the Insurance Company to mark/exhibit the insurance policy. On the other hand, it appears that the appellant filed an application seeking permission of the Court to take over all the defence of the insured. That application was dismissed by a learned Single Judge of the High Court and against that order, LP appeal was filed to the Division Bench. It is seen from the order of the Division Bench that there were two applications filed by the Insurance Company: one for taking over all the defence of the insured and the other for amending the written statement presumably to plead that the liability was limited which was not there earlier. When the application for amendment of the written statement was taken up, the appellant withdrew the same. After all this, for the first time before the Division Bench when the appeal against interim order was taken up for hearing, the appellant seems to have attempted to file the insurance policy to sustain its plea that the liability was limited. However, that was not allowed by the High Court. The LPA was dismissed. Thereafter the learned Single Judge had enhanced the compensation on the appeal filed by the claimants and directed the Insurance Company to pay the entire amount of the compensation.4. Against that the Insurance Company preferred appeals to the Division Bench, which were also dismissed. 5. This Court also gave one opportunity by order dated 14-3-1988 permitting the Insurance Company to file additional documents within four weeks. We presume that it was at the request of the counsel appearing for the Insurance Company to produce the policy and other documents as additional evidence, that order came to be passed. Even this opportunity was not availed of by the Insurance Company. Till date no application was filed to produce the insurance policy. Under these circumstances and in the absence of the document (insurance policy), we do not think that the question of extent of liability as fixed by the High Court can be challenged.
### Response:
0
### Explanation:
5. This Court also gave one opportunity by order datedpermitting the Insurance Company to file additional documents within four weeks. We presume that it was at the request of the counsel appearing for the Insurance Company to produce the policy and other documents as additional evidence, that order came to be passed. Even this opportunity was not availed of by the Insurance Company. Till date no application was filed to produce the insurance policy. Under these circumstances and in the absence of the document (insurance policy), we do not think that the question of extent of liability as fixed by the High Court can be challenged.
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State Of U.P Vs. Dyer Meakin Breweries Ltd | years. The validity of those assessments have not been questioned at any stage. The registration of the assessee was transferred from Ghaziabad to Lucknow only on March 28, 1960. Till that date, the assessee continued to be registered as a dealer in the office of the Sales Tax Officer, Ghaziabad. The penalty proceedings had been initiated on January 8, 1960 i.e. long before the assessees registration was transferred from the Sales Tax Officer, Ghaziabad, to the Sales Tax Officer, Lucknow.4. The High Court came to the conclusion that when the penalty was actually imposed on the assessee, the Sales Tax Officer, Ghaziabad, had no jurisdiction over the assessee and hence the levy made was invalid. We shall presently examine the correctness of that conclusion. But, before doing so, it would be convenient to dispose of a new contention advanced by Mr. Singh, the learned counsel for the assessee. Mr. Singh contended that the registration of the assessee as a dealer before the Sales Tax Officer, Ghaziabad, was an invalid registration as the U. P. Sales Tax Act as well as the Central Sales Tax Act did not permit double registration of the same assessee. According to him, the assessees head office was at all times at Lucknow. This is an entirely a new contention. No such contention appears to have been taken either before the authorities under the Act or before the High Court. On the basis of the material on record it is not possible to come to a firm conclusion that the same assessee had been registered at two places. Further, there is no material before us to show that during the relevant assessment years the assessees head office was at Lucknow. These are essentially questions of fact. We cannot go into those questions at this stage. Hence, we do not propose to go into the contention that the assessees registration at Ghaziabad was invalid. We have to proceed on the basis that the assessee was properly registered as a dealer at Ghaziabad. If that was not so, the assessee would not have applied to the Sales Tax Officer, Ghaziabad, for registration; nor would it have submitted its sales tax returns to that officer. As mentioned earlier, the sales tax assessments for the years 1958-59 and 1959-60 were not challenged as being unauthorised.5. This takes us to the question whether under Section 10-A of the Act, the Sales Tax Officer, Ghaziabad, had competence to levy penalty on the assessee. We shall first read Section 10 of the Act to the extent it is material for our present purpose. That section says:"10 If any person-(a) ............(b) being a registered dealer falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or(c) ............(d) ............(e) ............(f) ............he shall be punishable with simple imprisonment which may extend to six months, or with fine, or with both, and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues."6. Section 10-A (1) says:If any person purchasing goods is guilty of an offence under cl. (b) or clause (c) or clause (d) of S. 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale to him of the goods if the offence had not been committed;Provided that no prosecution for an offence under Section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section."(emphasis supplied).7. There is no dispute that the authority who granted the certificate of registration was the Sales Tax Officer, Ghaziabad. Therefore, prima facie, he was competent to levy penalty on the assessee. But it was contended on behalf of the assessee that on March 28, 1960, the registration before the Sales Tax Officer, Ghaziabad, stood cancelled and thereafter the assessee was registered before the Sales Tax Officer, Lucknow. That being so, the Sales Tax Officer, Ghaziabad, had no jurisdiction to levy penalty on the assessee. This contention overlooks the language of Section 10-A. That section definitely says that the authority who granted the certificate of registration to an assessee is one of the authorities competent to levy penalty. Undoubtedly, the Sales Tax Officer, Ghaziabad, was the authority who granted the the certificate of registration to the assessee and that certificate was in force during the assessment years 1958-50 and 1959-60. Even though after March 28, 1960, he ceased to be the authority competent to grant certificate of registration to the assessee, he still had the competence to levy penalty on the assessee in view of the fact that it was he who had granted the certificate of registration to the assessee. In this case, we are dealing with the penalty relating to offences committed during the assessment years 1958-59 and 1959-60. In fact the levy of penalty is one form of levying tax. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not properly appreciate the legal position in this case. The High Court was wrong in thinking that the proceedings initiated on January 8, 1960, stood terminated as a result of the subsequent notices issued by the Sales Tax Officer. The notices issued by him are not statutory notices. Under Section 10-A of the Act, the Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him.8. | 1[ds]No such contention appears to have been taken either before the authorities under the Act or before the High Court. On the basis of the material on record it is not possible to come to a firm conclusion that the same assessee had been registered at two places. Further, there is no material before us to show that during the relevant assessment years the assessees head office was at Lucknow. These are essentially questions of fact. We cannot go into those questions at this stage. Hence, we do not propose to go into the contention that the assessees registration at Ghaziabad was invalid. We have to proceed on the basis that the assessee was properly registered as a dealer at Ghaziabad. If that was not so, the assessee would not have applied to the Sales Tax Officer, Ghaziabad, for registration; nor would it have submitted its sales tax returns to that officer. As mentioned earlier, the sales tax assessments for the years 1958-59 and 1959-60 were not challenged as beingis no dispute that the authority who granted the certificate of registration was the Sales Tax Officer, Ghaziabad. Therefore, prima facie, he was competent to levy penalty on thebeing so, the Sales Tax Officer, Ghaziabad, had no jurisdiction to levy penalty on the assessee. This contention overlooks the language of Section 10-A. That section definitely says that the authority who granted the certificate of registration to an assessee is one of the authorities competent to levy penalty. Undoubtedly, the Sales Tax Officer, Ghaziabad, was the authority who granted the the certificate of registration to the assessee and that certificate was in force during the assessment years 1958-50 and 1959-60. Even though after March 28, 1960, he ceased to be the authority competent to grant certificate of registration to the assessee, he still had the competence to levy penalty on the assessee in view of the fact that it was he who had granted the certificate of registration to the assessee. In this case, we are dealing with the penalty relating to offences committed during the assessment years 1958-59 and 1959-60. In fact the levy of penalty is one form of levying tax. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not properly appreciate the legal position in this case. The High Court was wrong in thinking that the proceedings initiated on January 8, 1960, stood terminated as a result of the subsequent notices issued by the Sales Tax Officer. The notices issued by him are not statutory notices. Under Section 10-A of the Act, the Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him. | 1 | 2,012 | 537 | ### 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:
years. The validity of those assessments have not been questioned at any stage. The registration of the assessee was transferred from Ghaziabad to Lucknow only on March 28, 1960. Till that date, the assessee continued to be registered as a dealer in the office of the Sales Tax Officer, Ghaziabad. The penalty proceedings had been initiated on January 8, 1960 i.e. long before the assessees registration was transferred from the Sales Tax Officer, Ghaziabad, to the Sales Tax Officer, Lucknow.4. The High Court came to the conclusion that when the penalty was actually imposed on the assessee, the Sales Tax Officer, Ghaziabad, had no jurisdiction over the assessee and hence the levy made was invalid. We shall presently examine the correctness of that conclusion. But, before doing so, it would be convenient to dispose of a new contention advanced by Mr. Singh, the learned counsel for the assessee. Mr. Singh contended that the registration of the assessee as a dealer before the Sales Tax Officer, Ghaziabad, was an invalid registration as the U. P. Sales Tax Act as well as the Central Sales Tax Act did not permit double registration of the same assessee. According to him, the assessees head office was at all times at Lucknow. This is an entirely a new contention. No such contention appears to have been taken either before the authorities under the Act or before the High Court. On the basis of the material on record it is not possible to come to a firm conclusion that the same assessee had been registered at two places. Further, there is no material before us to show that during the relevant assessment years the assessees head office was at Lucknow. These are essentially questions of fact. We cannot go into those questions at this stage. Hence, we do not propose to go into the contention that the assessees registration at Ghaziabad was invalid. We have to proceed on the basis that the assessee was properly registered as a dealer at Ghaziabad. If that was not so, the assessee would not have applied to the Sales Tax Officer, Ghaziabad, for registration; nor would it have submitted its sales tax returns to that officer. As mentioned earlier, the sales tax assessments for the years 1958-59 and 1959-60 were not challenged as being unauthorised.5. This takes us to the question whether under Section 10-A of the Act, the Sales Tax Officer, Ghaziabad, had competence to levy penalty on the assessee. We shall first read Section 10 of the Act to the extent it is material for our present purpose. That section says:"10 If any person-(a) ............(b) being a registered dealer falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or(c) ............(d) ............(e) ............(f) ............he shall be punishable with simple imprisonment which may extend to six months, or with fine, or with both, and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues."6. Section 10-A (1) says:If any person purchasing goods is guilty of an offence under cl. (b) or clause (c) or clause (d) of S. 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale to him of the goods if the offence had not been committed;Provided that no prosecution for an offence under Section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section."(emphasis supplied).7. There is no dispute that the authority who granted the certificate of registration was the Sales Tax Officer, Ghaziabad. Therefore, prima facie, he was competent to levy penalty on the assessee. But it was contended on behalf of the assessee that on March 28, 1960, the registration before the Sales Tax Officer, Ghaziabad, stood cancelled and thereafter the assessee was registered before the Sales Tax Officer, Lucknow. That being so, the Sales Tax Officer, Ghaziabad, had no jurisdiction to levy penalty on the assessee. This contention overlooks the language of Section 10-A. That section definitely says that the authority who granted the certificate of registration to an assessee is one of the authorities competent to levy penalty. Undoubtedly, the Sales Tax Officer, Ghaziabad, was the authority who granted the the certificate of registration to the assessee and that certificate was in force during the assessment years 1958-50 and 1959-60. Even though after March 28, 1960, he ceased to be the authority competent to grant certificate of registration to the assessee, he still had the competence to levy penalty on the assessee in view of the fact that it was he who had granted the certificate of registration to the assessee. In this case, we are dealing with the penalty relating to offences committed during the assessment years 1958-59 and 1959-60. In fact the levy of penalty is one form of levying tax. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not properly appreciate the legal position in this case. The High Court was wrong in thinking that the proceedings initiated on January 8, 1960, stood terminated as a result of the subsequent notices issued by the Sales Tax Officer. The notices issued by him are not statutory notices. Under Section 10-A of the Act, the Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him.8.
### Response:
1
### Explanation:
No such contention appears to have been taken either before the authorities under the Act or before the High Court. On the basis of the material on record it is not possible to come to a firm conclusion that the same assessee had been registered at two places. Further, there is no material before us to show that during the relevant assessment years the assessees head office was at Lucknow. These are essentially questions of fact. We cannot go into those questions at this stage. Hence, we do not propose to go into the contention that the assessees registration at Ghaziabad was invalid. We have to proceed on the basis that the assessee was properly registered as a dealer at Ghaziabad. If that was not so, the assessee would not have applied to the Sales Tax Officer, Ghaziabad, for registration; nor would it have submitted its sales tax returns to that officer. As mentioned earlier, the sales tax assessments for the years 1958-59 and 1959-60 were not challenged as beingis no dispute that the authority who granted the certificate of registration was the Sales Tax Officer, Ghaziabad. Therefore, prima facie, he was competent to levy penalty on thebeing so, the Sales Tax Officer, Ghaziabad, had no jurisdiction to levy penalty on the assessee. This contention overlooks the language of Section 10-A. That section definitely says that the authority who granted the certificate of registration to an assessee is one of the authorities competent to levy penalty. Undoubtedly, the Sales Tax Officer, Ghaziabad, was the authority who granted the the certificate of registration to the assessee and that certificate was in force during the assessment years 1958-50 and 1959-60. Even though after March 28, 1960, he ceased to be the authority competent to grant certificate of registration to the assessee, he still had the competence to levy penalty on the assessee in view of the fact that it was he who had granted the certificate of registration to the assessee. In this case, we are dealing with the penalty relating to offences committed during the assessment years 1958-59 and 1959-60. In fact the levy of penalty is one form of levying tax. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not properly appreciate the legal position in this case. The High Court was wrong in thinking that the proceedings initiated on January 8, 1960, stood terminated as a result of the subsequent notices issued by the Sales Tax Officer. The notices issued by him are not statutory notices. Under Section 10-A of the Act, the Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him.
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State Of Madhya Pradesh Vs. Ranojirao Shinde & Anr | and is not protected by Art. 31 (2).From the above decisions it follows that choses in action and money could not be acquired under Art. 31 (2). If it is held that, , State by the exercise of its power of eminent domain can acquire choses in action and money belonging to its citizens, by paying a fraction of the money taken as compensation, the fundamentals. right guaranteed under Art. 19(1)(f) would be deprived of all its contents and that Article will cease to have any meaningful purpose. The power conferred under Art. 31 (2) is not a taxing power. That power cannot be utilised for enriching the coffers of the State. It is true that the abolition of the cash grants would argument the resources of the State but that cannot be considered as a public purpose under Art. 31 (2). If it is otherwise it would be permissible for the legislatures to enact laws acquiring the public debts due from the State, the annuity deposits returnable by it and provident fund payable by it by providing for the payment of some nominal compensation, to the persons whose rights are acquired as the acquisitions in question would augment the resources of the State. But nothing so bad can be said to be within contemplation of Art. 31(2). That Article must be construed harmoniously with Art. 19(1)(f). If so construed, it is obviously that the public purpose contemplated by that Article does not include enrichment of the coffers of the State. Further the compensation referred to in Art. 31(2) is, as held by this Court in various decisions, is the just equivalent of the value of the property taken. If for every rupee acquired fifty paisas or less is made payable as compensation the violation of -Art. 31 (2) would be patent and in those circumstances the exercise of the powers by the legislature would be considered as a fraud on its powers and consequently the legislation will be struck down as a colourable piece of legislation.It is true that in State of Bihar v. Kameshwar Singh([1952] S.C.R. 889) and in Bombay Dyeing and Manufacturing Co Limited v. State of Bombay ([1958] S.C.R. 1122), this Court was considering the question of taking of money by the State that was in the hands of others, but in this case we are concerned with the abrogation of the liability of the Government But we fail to see any difference in principle in these two sets of cases. In the former case the Government was compulsorily taking others property and in the latter it seeks to appropriate to itself the property of others which is in its hands.12. It was next urged that the impugned Act, even if it is held not to be protected by Art. 31(2) is still valid under Art. 31(1). The said Article says that no person shall be deprived of his property save by authority of law. A law Which authorises the State to, deprive a person of his property must be a valid law. It must not violate Art. 19(1) (f) which means that it must satisfy the requirements of Art. 19(5). In Kavalaopara Kottarathi Kochuni v. State of Madras([1960] 3 S.C.R. 887) this Court laid down that the word "law" used by Art. 31(1) indicates its limitations and refers back to Art. 19 and any law made under Art. 31 (1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public, The Act which empowers the State to, appropriate some one elses property for itself solely with a view to augment the resources of the State, cannot be considered as a reasonable restriction in the interest of the general public. That conclusion of ours receives support from the ratio of the decisions of this Court in State of Bihar v. Kameshwar Singh([1952] S.C.R. 889) and in Bombay Dyeing and Manufacturing Co. Limited v. State of Bombay([1958] S.C.R. 1122) wherein Venkatarama Aiyar, J. speaking for the Court, observed:"Assuming that the correct position is what the respondents contend it is that the case falls within Art. 19(1)(f), the question that has still to be determined is whether the impugned Act could be supported under Art. 19(5). There was some discussion before us as to the scope of this provision, the point of the debate being whether the words imposing reasonable restriction would cover a legislation, which not merely regulated the exercise of the rights guaranteed by Art. 19(1)(f) but totally extinguished them, and whether a law like the present one which deprived the owner of his properties could be held to fall within that provision. It was argued that a law authorising the State to seize and destroy diseased cattle, noxious drugs and the like, could not be brought within Art. 19(5) if the word restriction was to be narrowly construed, and that accordingly the power to restrict must be held to include, in appropriate cases, the power to prohibit the exercise of the right. That view does find support in the observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales([1950] A.C. 235): but the present legislation cannot be sustained even on the above interpretation of the word "restriction " as s. 3 ( 1 ) of the Act deals with moneys and money cannot be likened to diseased cattle or noxious drugs so as to attract the exercise of police power under Art. 19 (5). It appears to us that whether we apply under Art. 31(2) or Art. 19(5), the impugned Act cannot be upheld and it must be struck down."13. If Article 19(5) is interpreted to mean that State can take by authority of law anyones property for the. purpose of increasing its assets or revenues, the guarantee given by Art. 19(1)(f) would become illusory, a proposition to which this Court cannot subscribe.For the reasons mentioned above we are unable to uphold the validity of Madhya Pradesh Abolition of Cash Grants Act.14. | 0[ds]n of a cash grant is wide enough to include cash grants sanctioned by ex-Rulers in lieu of Jagirs or other properties resumed or even, en payments agreed to be made in lieu of loans given to the Rulers. Different considerations may arise if the grants abolished are Gratuitous payments, grants in lieu of services to be rendered or other resumable grants. But as mentioned earlier, the definition of cash grants in s. 2(1) does not make, any distinction between the various types of cash grants. Hence, the said definition will have to stand or fall as a whole, there being no basis for severing some out of the several grants included therein. It is impermissible for this Court to rewrite that clause and confine the definition only to such of the cash grants which the legislature might be competent todoctrine of severability is applicable only if it is possible to separate the legal from the unconstitutional portion of the Provision. If it is not possible to do so, the entire provision has to be struck down as unconstitutional. see Kameshivar Prasad v. State of Bihar( A.I.R. 1962 S.C.High Court has come to the conclusion that a "cash grants is property within the meaning of that expression in Articles 19(1)(f) and 31. This conclusion was not challenged before us. It is obvious that a right to a sum of money isArticle 19(5) is interpreted to mean that State can take by authority of law anyones property for the. purpose of increasing its assets or revenues, the guarantee given by Art. 19(1)(f) would become illusory, a proposition to which this Court cannot subscribe.For the reasons mentioned above we are unable to uphold the validity of Madhya Pradesh Abolition of Cash Grants Act. | 0 | 4,122 | 337 | ### 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:
and is not protected by Art. 31 (2).From the above decisions it follows that choses in action and money could not be acquired under Art. 31 (2). If it is held that, , State by the exercise of its power of eminent domain can acquire choses in action and money belonging to its citizens, by paying a fraction of the money taken as compensation, the fundamentals. right guaranteed under Art. 19(1)(f) would be deprived of all its contents and that Article will cease to have any meaningful purpose. The power conferred under Art. 31 (2) is not a taxing power. That power cannot be utilised for enriching the coffers of the State. It is true that the abolition of the cash grants would argument the resources of the State but that cannot be considered as a public purpose under Art. 31 (2). If it is otherwise it would be permissible for the legislatures to enact laws acquiring the public debts due from the State, the annuity deposits returnable by it and provident fund payable by it by providing for the payment of some nominal compensation, to the persons whose rights are acquired as the acquisitions in question would augment the resources of the State. But nothing so bad can be said to be within contemplation of Art. 31(2). That Article must be construed harmoniously with Art. 19(1)(f). If so construed, it is obviously that the public purpose contemplated by that Article does not include enrichment of the coffers of the State. Further the compensation referred to in Art. 31(2) is, as held by this Court in various decisions, is the just equivalent of the value of the property taken. If for every rupee acquired fifty paisas or less is made payable as compensation the violation of -Art. 31 (2) would be patent and in those circumstances the exercise of the powers by the legislature would be considered as a fraud on its powers and consequently the legislation will be struck down as a colourable piece of legislation.It is true that in State of Bihar v. Kameshwar Singh([1952] S.C.R. 889) and in Bombay Dyeing and Manufacturing Co Limited v. State of Bombay ([1958] S.C.R. 1122), this Court was considering the question of taking of money by the State that was in the hands of others, but in this case we are concerned with the abrogation of the liability of the Government But we fail to see any difference in principle in these two sets of cases. In the former case the Government was compulsorily taking others property and in the latter it seeks to appropriate to itself the property of others which is in its hands.12. It was next urged that the impugned Act, even if it is held not to be protected by Art. 31(2) is still valid under Art. 31(1). The said Article says that no person shall be deprived of his property save by authority of law. A law Which authorises the State to, deprive a person of his property must be a valid law. It must not violate Art. 19(1) (f) which means that it must satisfy the requirements of Art. 19(5). In Kavalaopara Kottarathi Kochuni v. State of Madras([1960] 3 S.C.R. 887) this Court laid down that the word "law" used by Art. 31(1) indicates its limitations and refers back to Art. 19 and any law made under Art. 31 (1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public, The Act which empowers the State to, appropriate some one elses property for itself solely with a view to augment the resources of the State, cannot be considered as a reasonable restriction in the interest of the general public. That conclusion of ours receives support from the ratio of the decisions of this Court in State of Bihar v. Kameshwar Singh([1952] S.C.R. 889) and in Bombay Dyeing and Manufacturing Co. Limited v. State of Bombay([1958] S.C.R. 1122) wherein Venkatarama Aiyar, J. speaking for the Court, observed:"Assuming that the correct position is what the respondents contend it is that the case falls within Art. 19(1)(f), the question that has still to be determined is whether the impugned Act could be supported under Art. 19(5). There was some discussion before us as to the scope of this provision, the point of the debate being whether the words imposing reasonable restriction would cover a legislation, which not merely regulated the exercise of the rights guaranteed by Art. 19(1)(f) but totally extinguished them, and whether a law like the present one which deprived the owner of his properties could be held to fall within that provision. It was argued that a law authorising the State to seize and destroy diseased cattle, noxious drugs and the like, could not be brought within Art. 19(5) if the word restriction was to be narrowly construed, and that accordingly the power to restrict must be held to include, in appropriate cases, the power to prohibit the exercise of the right. That view does find support in the observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales([1950] A.C. 235): but the present legislation cannot be sustained even on the above interpretation of the word "restriction " as s. 3 ( 1 ) of the Act deals with moneys and money cannot be likened to diseased cattle or noxious drugs so as to attract the exercise of police power under Art. 19 (5). It appears to us that whether we apply under Art. 31(2) or Art. 19(5), the impugned Act cannot be upheld and it must be struck down."13. If Article 19(5) is interpreted to mean that State can take by authority of law anyones property for the. purpose of increasing its assets or revenues, the guarantee given by Art. 19(1)(f) would become illusory, a proposition to which this Court cannot subscribe.For the reasons mentioned above we are unable to uphold the validity of Madhya Pradesh Abolition of Cash Grants Act.14.
### Response:
0
### Explanation:
n of a cash grant is wide enough to include cash grants sanctioned by ex-Rulers in lieu of Jagirs or other properties resumed or even, en payments agreed to be made in lieu of loans given to the Rulers. Different considerations may arise if the grants abolished are Gratuitous payments, grants in lieu of services to be rendered or other resumable grants. But as mentioned earlier, the definition of cash grants in s. 2(1) does not make, any distinction between the various types of cash grants. Hence, the said definition will have to stand or fall as a whole, there being no basis for severing some out of the several grants included therein. It is impermissible for this Court to rewrite that clause and confine the definition only to such of the cash grants which the legislature might be competent todoctrine of severability is applicable only if it is possible to separate the legal from the unconstitutional portion of the Provision. If it is not possible to do so, the entire provision has to be struck down as unconstitutional. see Kameshivar Prasad v. State of Bihar( A.I.R. 1962 S.C.High Court has come to the conclusion that a "cash grants is property within the meaning of that expression in Articles 19(1)(f) and 31. This conclusion was not challenged before us. It is obvious that a right to a sum of money isArticle 19(5) is interpreted to mean that State can take by authority of law anyones property for the. purpose of increasing its assets or revenues, the guarantee given by Art. 19(1)(f) would become illusory, a proposition to which this Court cannot subscribe.For the reasons mentioned above we are unable to uphold the validity of Madhya Pradesh Abolition of Cash Grants Act.
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Indian Card Clothing Company Limited Vs. Union of India | in our judgment, clearly supports the submission of Mr. Setalvad that foundation cloth is a separate identifiable article and cotton fabric which is used as one of the ingredients loses its identity when foundation cloth comes into existence.( 7 ) MR. Desai strenuously relied upon Tariff Item No. 19-I (b) to urge that when cotton fabrics is subjected to the process of rubberisation, it would still retain the identity of cotton fabric and is liable to payment of excise duty under Tariff Item No. 19-I (b ). It was urged that the manufacture of foundation cloth is nothing but coating layer after layer of rubber on cotton fabric. The submission is not correct and it is not accurate to suggest that the process undertaken for manufacture of foundation cloth is nothing but putting layers after layers of rubber on cotton fabric. As pointed out hereinabove, the process is a complicated one and foundation cloth comes into existence after several steps are taken. Tariff Item No. 19-I (b) comes into play when cotton fabric is subjected to process of bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink-proofing, organdie processing or any other process or any two or more of these processes. What is crucial to be understood is that in spite of these modes of processing, cotton fabric does not lose its identity. The processes set out under tariff item like bleaching, mercerising, dyeing, printing, etc. are only to increase the value and utility of cotton fabric. By process of bleaching, mercerising, dyeing, or printing the cotton fabrics which are referred to under Tariff Item No. 19 like duties, sarees, chadders, bedsheets, etc. are made marketable. The process is undertaken merely with a view to increase the utility and to refine the cotton fabric and in spite of all these processings, the identity of the cotton fabric is never lost. The process undertaken is for improvement of the cotton fabric and for commercial sale of the fabrics and by these processings, another article different and distinct from cotton fabric does not come into existence. Once this aspect is understood, then it is obvious that foundation cloth which is manufactured by petitioner No. 2 can by no stretch of imagination be treated as cotton fabrics. The foundation cloth, as mentioned hereinabove, even according to the department, is a different, distinct and identifiable article and, therefore, it is not permissible to equate foundation cloth with cotton fabrics to attract levy of excise duty under Tariff Item No. 19-I (b). In our judgment, the Collector was clearly in error in disturbing the conclusion reached by the Assistant Collector and holding that foundation cloth should be classified under Tariff Item No. 19-I (b ).( 8 ) THE reliance placed by Mr. Setalvad on Order No. 1169-1171 of 1980 passed by the government of India in revision application on October 28, 1980 and copy of which is annexed as exhibit c to the petition is also appropriate. In that case, the goods manufactured were P. V. C. conveyor belting. The Excise authorities had held that the goods should be classified as cotton fabric under Tariff Item No. 19-III and rejected the claim of the manufacturer that conveyer belting is not known in the trade or in commercial parlance as cotton fabrics. The government in revision held that the goods which are not marketed as cotton fabrics in commercial parlance did not attract levy of duty under Tariff Item No. 19 of the First Schedule. The Government further held that even if one goes by the extended meaning of cotton fabrics, the end product, viz. , P. V. C. belting which is produced by fusion of various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot be said to fall within the expression of cotton fabrics under Tariff Item No. 19. In our judgment, in the present case also, the final product, viz., foundation cloth which is produced by fusion various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot fall within the expression of cotton fabrics under Item No. 19-I (b). The collector in the impugned order bypassed the decision of the Government on a specious ground that the decision was in relation to Tariff Item No. 19-III and, therefore, has no application. The collector should have realised that the decision is relied upon to establish as to how Tariff Item no. 19 is not attracted when cotton fabric loses its identify after undergoing complicated process. In our judgment, the order of the Collector in these circumstances cannot be sustained as the conclusion reached by the Collector is almost perverse. The entire approach of the Collector proceeds on the misconception that the burden was upon the assessee to establish that duty is not payable under Tariff Item No. 19-I (b). Once it is found that the manufacture of foundation cloth is not liable to payment of duty under Tariff Item 19-I (b), then the liability to pay duty arises only under residuary Item No. 68. In our judgment, the conclusion reached by the Assistant collector initially on November 29, 1980 and subsequently on March 20, 1981 was accurate and was not required to be disturbed by the Collector. As we are holding in favour of the petitioners on this aspect, it is not necessary to examine other contentions raised by Mr. Setalvad like (a) the Assistant Collector had no jurisdiction to reopen the approval granted to classification on November 29, 1980; and (b) the weight of cotton in foundation cloth being less than 50 per cent. The product cannot be liable to duty under Tariff item No. 19-I (b ). As the manufacture of foundation cloth is liable to payment of duty under tariff Item No. 68, the demand notices dated September 8, 1981 and October 6, 1981 issued by the Superintendent of Central Excise, Pune, for payment of differential duty are required to be struck down. | 1[ds]( 6 ) BEFORE examining the issue as to whether foundation cloth is liable to payment of excise duty under Tariff Item No.(b), it would be appropriate to set out the method by which foundation cloth is manufactured by petitioner No. 2 company. The natural rubber is plasticised on two roll mills. Then zinc oxide and stearic acid are added. The fillers and plasticisers are also added and finally, sulphur and accelerators are added to get the compound. This compound is applied to cotton fabrics and according to the requirements, 4 and 9 such rubber coated fabrics are laminated and bonded by natural rubber. The product is thus obtained by lamination of several layers of rubber coated cotton fabrics and assembled/pressed by rubber compound and natural rubber. There is no dispute about the process undertaken by petitioner No. 2 company for manufacture of foundation cloth. The Collector in the impugned order has set out the process undertaken. The order of the Collector indicates that the twill side of the special cotton fabric is coated with mix B by spreading on the spreading machine and the reverse side of the fabric is coated with mix B by spreading on the spreading machine and the reverse side of the fabric is coated with mix A by frictioning on a calendar machine. Bottom ply of the foundation cloth is coated on one side only and since in friction coating the compound penetrates and comes out of the other side and likely to spoil the appearance and finish, the bottom ply is again coated with mix A after dissolving in solvent. The fabrics are then bonded together on the doubling machine starting from the bottom ply. After bonding, mix is applied on one side and curing effect or the valcanising effect is achieved by bringing mix in contact with both the sides. The Collector, after setting out this process, held that in manufacture of foundation cloth, identity of cotton fabrics is not lost and this conclusion was arrived at only on the basis of visual inspection. Mr. Setalvad very rightly submitted that the question as to whether the cotton fabric which is used for the purpose of manufacture of foundation cloth loses its identity cannot be made dependent upon visual inspection of the Collector. It is undoubtedly true that in manufacture of foundation cloth, cotton fabric is one of the ingredients, but it is a far cry to suggest that cotton fabric retains its identity even after the foundation cloth comes into existence. To determine as to whether the foundation cloth retains its identity and known as cotton fabrics the petitioners relied upon letter dated February 23, 1982 addressed by M/s. B. Maganlal Goolabchand and Sons of Pune. This letter was written in answer to the enquiry made by petitioner No. 1 company by communication dated February 12, 1982. M/s. B. Maganlal Goolabchand and Sons are dealers in textile fabrics of various types, including cotton fabrics, for over 50 years as agents of M/s. Binny Ltd., amanufacturing company of cotton fabrics. Petitioner No. 1 company forwarded samples of foundation cloth and enquired whether M/s. B. Mangal Goolabchand and Sons could supply such foundation cloth. M/s. B. Maganlal Goolabchand and Sons were also requested to furnish names and addresses of traders who could supply foundation cloth. In answer to the request, M/s. B. Maganlal Goolabchand and Sons addressed letter dated February 23, 1982 and expressed their inability to supply foundation cloth. The letter recites that M/s. B. Maganlal goolabchand and Sons had never dealt in foundation cloth nor M/s. Binny Ltd. , because foundation cloth is a specified material. The letter expresses inability to supply the names of suppliers of foundation cloth is a specialised material. The letter expresses inability to supply the names of suppliers of foundation cloth. Mr. Setalvad submitted, and in our judgment with considerable merit, that the dealer in cotton fabrics for over 50 years does not deal in foundation cloth which is a specialised material and, therefore, it is obvious that in trade parlance, foundation cloth is not considered as cotton fabric. The Collector brushed aside this evidence by observing that the dealer deals only in cotton fabrics as are commonly used and, therefore, would not store other varieties of cotton fabrics. This is an easy way of avoiding evidence which is not palatable to the conclusion reached by the Collector. It must be noted that the department did not produce any evidence or material to indicate that foundation cloth is known or understood in trade as cotton fabric. In our judgment, the Collector was clearly in error in ignoring the evidence led by the petitioners as to how the foundation cloth understood by the traders. It is also required to be stated that the Collector in the impugned order observed that the fact that cotton fabric is not a predominant part of foundation cloth is not relevant while determining the classification of foundation cloth. In our judgment, the observation is not accurate. Merely because cotton fabric is one of the ingredients in the manufacture of foundation cloth, it cannot be concluded that foundation cloth which is a separate article still retains its identity as cotton fabric. In this connection, it would be appropriate to make reference to return filed by B. S. Pawar, Assistant Collector of Central Excise and Customs, Pune. In para 8 of the return, it is claimed that foundation cloth by itself is a distinct, separate and identifiable product. This admission in the return, in our judgment, clearly supports the submission of Mr. Setalvad that foundation cloth is a separate identifiable article and cotton fabric which is used as one of the ingredients loses its identity when foundation cloth comes intosubmission is not correct and it is not accurate to suggest that the process undertaken for manufacture of foundation cloth is nothing but putting layers after layers of rubber on cotton fabric. As pointed out hereinabove, the process is a complicated one and foundation cloth comes into existence after several steps are taken. Tariff Item No.(b) comes into play when cotton fabric is subjected to process of bleaching, mercerising, dyeing, printing,g, organdie processing or any other process or any two or more of these processes. What is crucial to be understood is that in spite of these modes of processing, cotton fabric does not lose its identity. The processes set out under tariff item like bleaching, mercerising, dyeing, printing, etc. are only to increase the value and utility of cotton fabric. By process of bleaching, mercerising, dyeing, or printing the cotton fabrics which are referred to under Tariff Item No. 19 like duties, sarees, chadders, bedsheets, etc. are made marketable. The process is undertaken merely with a view to increase the utility and to refine the cotton fabric and in spite of all these processings, the identity of the cotton fabric is never lost. The process undertaken is for improvement of the cotton fabric and for commercial sale of the fabrics and by these processings, another article different and distinct from cotton fabric does not come into existence. Once this aspect is understood, then it is obvious that foundation cloth which is manufactured by petitioner No. 2 can by no stretch of imagination be treated as cotton fabrics. The foundation cloth, as mentioned hereinabove, even according to the department, is a different, distinct and identifiable article and, therefore, it is not permissible to equate foundation cloth with cotton fabrics to attract levy of excise duty under Tariff Item No.(b). In our judgment, the Collector was clearly in error in disturbing the conclusion reached by the Assistant Collector and holding that foundation cloth should be classified under Tariff Item No.(b ).( 8 ) THE reliance placed by Mr. Setalvad on Order No.of 1980 passed by the government of India in revision application on October 28, 1980 and copy of which is annexed as exhibit c to the petition is also appropriate. In that case, the goods manufactured were P. V. C. conveyor belting. The Excise authorities had held that the goods should be classified as cotton fabric under Tariff Item No.and rejected the claim of the manufacturer that conveyer belting is not known in the trade or in commercial parlance as cotton fabrics. The government in revision held that the goods which are not marketed as cotton fabrics in commercial parlance did not attract levy of duty under Tariff Item No. 19 of the First Schedule. The Government further held that even if one goes by the extended meaning of cotton fabrics, the end product, viz. , P. V. C. belting which is produced by fusion of various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot be said to fall within the expression of cotton fabrics under Tariff Item No. 19. In our judgment, in the present case also, the final product, viz., foundation cloth which is produced by fusion various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot fall within the expression of cotton fabrics under Item No.(b). The collector in the impugned order bypassed the decision of the Government on a specious ground that the decision was in relation to Tariff Item No.and, therefore, has no application. The collector should have realised that the decision is relied upon to establish as to how Tariff Item no. 19 is not attracted when cotton fabric loses its identify after undergoing complicated process. In our judgment, the order of the Collector in these circumstances cannot be sustained as the conclusion reached by the Collector is almost perverse. The entire approach of the Collector proceeds on the misconception that the burden was upon the assessee to establish that duty is not payable under Tariff Item No.(b). Once it is found that the manufacture of foundation cloth is not liable to payment of duty under Tariff Item(b), then the liability to pay duty arises only under residuary Item No. 68. In our judgment, the conclusion reached by the Assistant collector initially on November 29, 1980 and subsequently on March 20, 1981 was accurate and was not required to be disturbed by the Collector. As we are holding in favour of the petitioners on this aspect, it is not necessary to examine other contentions raised by Mr. Setalvad like (a) the Assistant Collector had no jurisdiction to reopen the approval granted to classification on November 29, 1980; and (b) the weight of cotton in foundation cloth being less than 50 per cent. The product cannot be liable to duty under Tariff item No.(b ). As the manufacture of foundation cloth is liable to payment of duty under tariff Item No. 68, the demand notices dated September 8, 1981 and October 6, 1981 issued by the Superintendent of Central Excise, Pune, for payment of differential duty are required to be struck down. | 1 | 3,896 | 2,035 | ### 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:
in our judgment, clearly supports the submission of Mr. Setalvad that foundation cloth is a separate identifiable article and cotton fabric which is used as one of the ingredients loses its identity when foundation cloth comes into existence.( 7 ) MR. Desai strenuously relied upon Tariff Item No. 19-I (b) to urge that when cotton fabrics is subjected to the process of rubberisation, it would still retain the identity of cotton fabric and is liable to payment of excise duty under Tariff Item No. 19-I (b ). It was urged that the manufacture of foundation cloth is nothing but coating layer after layer of rubber on cotton fabric. The submission is not correct and it is not accurate to suggest that the process undertaken for manufacture of foundation cloth is nothing but putting layers after layers of rubber on cotton fabric. As pointed out hereinabove, the process is a complicated one and foundation cloth comes into existence after several steps are taken. Tariff Item No. 19-I (b) comes into play when cotton fabric is subjected to process of bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink-proofing, organdie processing or any other process or any two or more of these processes. What is crucial to be understood is that in spite of these modes of processing, cotton fabric does not lose its identity. The processes set out under tariff item like bleaching, mercerising, dyeing, printing, etc. are only to increase the value and utility of cotton fabric. By process of bleaching, mercerising, dyeing, or printing the cotton fabrics which are referred to under Tariff Item No. 19 like duties, sarees, chadders, bedsheets, etc. are made marketable. The process is undertaken merely with a view to increase the utility and to refine the cotton fabric and in spite of all these processings, the identity of the cotton fabric is never lost. The process undertaken is for improvement of the cotton fabric and for commercial sale of the fabrics and by these processings, another article different and distinct from cotton fabric does not come into existence. Once this aspect is understood, then it is obvious that foundation cloth which is manufactured by petitioner No. 2 can by no stretch of imagination be treated as cotton fabrics. The foundation cloth, as mentioned hereinabove, even according to the department, is a different, distinct and identifiable article and, therefore, it is not permissible to equate foundation cloth with cotton fabrics to attract levy of excise duty under Tariff Item No. 19-I (b). In our judgment, the Collector was clearly in error in disturbing the conclusion reached by the Assistant Collector and holding that foundation cloth should be classified under Tariff Item No. 19-I (b ).( 8 ) THE reliance placed by Mr. Setalvad on Order No. 1169-1171 of 1980 passed by the government of India in revision application on October 28, 1980 and copy of which is annexed as exhibit c to the petition is also appropriate. In that case, the goods manufactured were P. V. C. conveyor belting. The Excise authorities had held that the goods should be classified as cotton fabric under Tariff Item No. 19-III and rejected the claim of the manufacturer that conveyer belting is not known in the trade or in commercial parlance as cotton fabrics. The government in revision held that the goods which are not marketed as cotton fabrics in commercial parlance did not attract levy of duty under Tariff Item No. 19 of the First Schedule. The Government further held that even if one goes by the extended meaning of cotton fabrics, the end product, viz. , P. V. C. belting which is produced by fusion of various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot be said to fall within the expression of cotton fabrics under Tariff Item No. 19. In our judgment, in the present case also, the final product, viz., foundation cloth which is produced by fusion various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot fall within the expression of cotton fabrics under Item No. 19-I (b). The collector in the impugned order bypassed the decision of the Government on a specious ground that the decision was in relation to Tariff Item No. 19-III and, therefore, has no application. The collector should have realised that the decision is relied upon to establish as to how Tariff Item no. 19 is not attracted when cotton fabric loses its identify after undergoing complicated process. In our judgment, the order of the Collector in these circumstances cannot be sustained as the conclusion reached by the Collector is almost perverse. The entire approach of the Collector proceeds on the misconception that the burden was upon the assessee to establish that duty is not payable under Tariff Item No. 19-I (b). Once it is found that the manufacture of foundation cloth is not liable to payment of duty under Tariff Item 19-I (b), then the liability to pay duty arises only under residuary Item No. 68. In our judgment, the conclusion reached by the Assistant collector initially on November 29, 1980 and subsequently on March 20, 1981 was accurate and was not required to be disturbed by the Collector. As we are holding in favour of the petitioners on this aspect, it is not necessary to examine other contentions raised by Mr. Setalvad like (a) the Assistant Collector had no jurisdiction to reopen the approval granted to classification on November 29, 1980; and (b) the weight of cotton in foundation cloth being less than 50 per cent. The product cannot be liable to duty under Tariff item No. 19-I (b ). As the manufacture of foundation cloth is liable to payment of duty under tariff Item No. 68, the demand notices dated September 8, 1981 and October 6, 1981 issued by the Superintendent of Central Excise, Pune, for payment of differential duty are required to be struck down.
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1
### Explanation:
of foundation cloth. In our judgment, the observation is not accurate. Merely because cotton fabric is one of the ingredients in the manufacture of foundation cloth, it cannot be concluded that foundation cloth which is a separate article still retains its identity as cotton fabric. In this connection, it would be appropriate to make reference to return filed by B. S. Pawar, Assistant Collector of Central Excise and Customs, Pune. In para 8 of the return, it is claimed that foundation cloth by itself is a distinct, separate and identifiable product. This admission in the return, in our judgment, clearly supports the submission of Mr. Setalvad that foundation cloth is a separate identifiable article and cotton fabric which is used as one of the ingredients loses its identity when foundation cloth comes intosubmission is not correct and it is not accurate to suggest that the process undertaken for manufacture of foundation cloth is nothing but putting layers after layers of rubber on cotton fabric. As pointed out hereinabove, the process is a complicated one and foundation cloth comes into existence after several steps are taken. Tariff Item No.(b) comes into play when cotton fabric is subjected to process of bleaching, mercerising, dyeing, printing,g, organdie processing or any other process or any two or more of these processes. What is crucial to be understood is that in spite of these modes of processing, cotton fabric does not lose its identity. The processes set out under tariff item like bleaching, mercerising, dyeing, printing, etc. are only to increase the value and utility of cotton fabric. By process of bleaching, mercerising, dyeing, or printing the cotton fabrics which are referred to under Tariff Item No. 19 like duties, sarees, chadders, bedsheets, etc. are made marketable. The process is undertaken merely with a view to increase the utility and to refine the cotton fabric and in spite of all these processings, the identity of the cotton fabric is never lost. The process undertaken is for improvement of the cotton fabric and for commercial sale of the fabrics and by these processings, another article different and distinct from cotton fabric does not come into existence. Once this aspect is understood, then it is obvious that foundation cloth which is manufactured by petitioner No. 2 can by no stretch of imagination be treated as cotton fabrics. The foundation cloth, as mentioned hereinabove, even according to the department, is a different, distinct and identifiable article and, therefore, it is not permissible to equate foundation cloth with cotton fabrics to attract levy of excise duty under Tariff Item No.(b). In our judgment, the Collector was clearly in error in disturbing the conclusion reached by the Assistant Collector and holding that foundation cloth should be classified under Tariff Item No.(b ).( 8 ) THE reliance placed by Mr. Setalvad on Order No.of 1980 passed by the government of India in revision application on October 28, 1980 and copy of which is annexed as exhibit c to the petition is also appropriate. In that case, the goods manufactured were P. V. C. conveyor belting. The Excise authorities had held that the goods should be classified as cotton fabric under Tariff Item No.and rejected the claim of the manufacturer that conveyer belting is not known in the trade or in commercial parlance as cotton fabrics. The government in revision held that the goods which are not marketed as cotton fabrics in commercial parlance did not attract levy of duty under Tariff Item No. 19 of the First Schedule. The Government further held that even if one goes by the extended meaning of cotton fabrics, the end product, viz. , P. V. C. belting which is produced by fusion of various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot be said to fall within the expression of cotton fabrics under Tariff Item No. 19. In our judgment, in the present case also, the final product, viz., foundation cloth which is produced by fusion various layers with fabrics dipped in a special type of solution loses its identity as cotton fabric and, therefore, cannot fall within the expression of cotton fabrics under Item No.(b). The collector in the impugned order bypassed the decision of the Government on a specious ground that the decision was in relation to Tariff Item No.and, therefore, has no application. The collector should have realised that the decision is relied upon to establish as to how Tariff Item no. 19 is not attracted when cotton fabric loses its identify after undergoing complicated process. In our judgment, the order of the Collector in these circumstances cannot be sustained as the conclusion reached by the Collector is almost perverse. The entire approach of the Collector proceeds on the misconception that the burden was upon the assessee to establish that duty is not payable under Tariff Item No.(b). Once it is found that the manufacture of foundation cloth is not liable to payment of duty under Tariff Item(b), then the liability to pay duty arises only under residuary Item No. 68. In our judgment, the conclusion reached by the Assistant collector initially on November 29, 1980 and subsequently on March 20, 1981 was accurate and was not required to be disturbed by the Collector. As we are holding in favour of the petitioners on this aspect, it is not necessary to examine other contentions raised by Mr. Setalvad like (a) the Assistant Collector had no jurisdiction to reopen the approval granted to classification on November 29, 1980; and (b) the weight of cotton in foundation cloth being less than 50 per cent. The product cannot be liable to duty under Tariff item No.(b ). As the manufacture of foundation cloth is liable to payment of duty under tariff Item No. 68, the demand notices dated September 8, 1981 and October 6, 1981 issued by the Superintendent of Central Excise, Pune, for payment of differential duty are required to be struck down.
|
Depot. Superintendent H.P. Corp. Ltd&Anr Vs. Kolhapur Agri. Market Commtt. Kolhapur | Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court dismissing the Second appeal filed by the appellant. While issuing notice on 11.4.2005 it was indicated that the appellant has to indicate whether he is willing to accept the suggestions given by the High Court about vacating the premises by 2009. 3. Background facts in a nutshell are as follows:Appellant is running a retail outlet Petrol Pump in the suit premises in Kolhapur for which a lease was executed on 28.12.1959 between the predecessor in interest of the appellant and the respondent for a period of 20 years with an option of renewal for a further period of ten years. The period expired in December, 1989. On 18.3.1989 i.e. prior to the expiry of the lease period, the appellant purportedly exercised the right of renewal of the lease deed for a period of 30 years in terms of Section 7 read with Section 9 of the Caltex (Acquisition of shares of Caltex) Oil Refining (I) Ltd. and of undertaking in India of Caltex (I) Ltd. Act, 1977 (hereinafter referred to as "the Acquisition Act").According to the appellant, the respondent by its conduct agreed to extend the lease by accepting rent on 2nd December, 1997. On 22nd October, 1997 respondents have been noticed by the appellant-Corporation calling upon the Corporation to vacate the suit land and hand over the possession to the respondent. Respondent filed Civil Suit No. 399 of 1998 with the Court of Civil Judge, Junior Division Kolhapur on 18.4.1998 inter alia praying for possession of the suit land and mesne profit on the ground that though the respondent served upon the appellant the notice of surrender of possession of land, the appellant avoided giving back the possession.Learned Civil Judge decreed the suit and directed the appellants to hand over vacant possession. Appellants filed Regular Civil Appeal (Regular Civil Appeal No. 375 of 2000) before the learned District Judge Kolhapur. During pendency of the Civil Appeal appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (in short the CPC) seeking inter alia the following amendment:(i) By virtue of the Acquisition Act, and the provisions made thereunder, Caltex India Ltd. was converted into Hindustan Petroleum Corporation Ltd.(ii) As per Section 7 of the Acquisition Act, the Corporation has legal right to renew the lease on the same terms and conditions after its expiry.(iii) The Corporation by its letter dated 18.3.1989 had intimated to the plaintiff regarding its desire to renew the lease for a further period of 30 years. So automatically the lease period has been extended for 30 years.(iv) The suit filed on the basis of the said notice has no legal force. 4. By order dated 2.11.2002 the amendment was allowed. 5. By order dated 4.10.2004 the Civil appeal was dismissed. Second appeal was filed by the appellant before the Bombay High Court. By the impugned order the High Court dismissed the second appeal. 6. During the hearing of the appeal to avoid litigation between two public bodies the High Court suggested that the appellants may be granted time to vacate the suit plot subject to filing of undertaking but the appellant refused to accept the situation. Under Section 7(3) as noted by the High Court there is no automatic renewal and there can be renewal if it is so desired by the Central Government. In the instant case the other crucial question was whether the company was entitled to second renewal. The High Court held that option of renewal was exercised in the year 1978 at that time the provisions of the Act of 1977 were already enforced. 7. During the pendency of the appeal the appellants contended that they are entitled to benefit of Section 7(3). That plea is unacceptable as no reply was sent to the notice of termination and/or by referring to such right in the written statement filed in the trial court. If in the year 1979 i.e. on the expiry of the lease period, even if lease was to be renewed in terms of Section 7(3), extension could have been granted in terms of original lease for a period of 20 years from the year 1979. It is to be noted that the appellants are not entitled to the protection of Maharashtra Rent Control Act, 1999. Accordingly, the High Court held that there was no merit in the appeal which was dismissed. 8. Stands before the High Court were reiterated in this appeal. 9. Section 7(3) reads as follows: "7(3) On expiry of the term of any lease, tenancy or arrangement referred to in sub section (1) or sub section (2), such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued, so far as may be, on the same terms and conditions on which the lease or tenancy or arrangement was originally granted or entered into." 10. As rightly observed by the High Court that there is no automatic renewal and there can be renewal only if it is so desired by the Central Government. There is no material placed before the courts below that there was any desire in that regard by the Central Government. | 0[ds]As rightly observed by the High Court that there is no automatic renewal and there can be renewal only if it is so desired by the Central Government. There is no material placed before the courts below that there was any desire in that regard by the Central Government. | 0 | 1,006 | 55 | ### 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:
Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court dismissing the Second appeal filed by the appellant. While issuing notice on 11.4.2005 it was indicated that the appellant has to indicate whether he is willing to accept the suggestions given by the High Court about vacating the premises by 2009. 3. Background facts in a nutshell are as follows:Appellant is running a retail outlet Petrol Pump in the suit premises in Kolhapur for which a lease was executed on 28.12.1959 between the predecessor in interest of the appellant and the respondent for a period of 20 years with an option of renewal for a further period of ten years. The period expired in December, 1989. On 18.3.1989 i.e. prior to the expiry of the lease period, the appellant purportedly exercised the right of renewal of the lease deed for a period of 30 years in terms of Section 7 read with Section 9 of the Caltex (Acquisition of shares of Caltex) Oil Refining (I) Ltd. and of undertaking in India of Caltex (I) Ltd. Act, 1977 (hereinafter referred to as "the Acquisition Act").According to the appellant, the respondent by its conduct agreed to extend the lease by accepting rent on 2nd December, 1997. On 22nd October, 1997 respondents have been noticed by the appellant-Corporation calling upon the Corporation to vacate the suit land and hand over the possession to the respondent. Respondent filed Civil Suit No. 399 of 1998 with the Court of Civil Judge, Junior Division Kolhapur on 18.4.1998 inter alia praying for possession of the suit land and mesne profit on the ground that though the respondent served upon the appellant the notice of surrender of possession of land, the appellant avoided giving back the possession.Learned Civil Judge decreed the suit and directed the appellants to hand over vacant possession. Appellants filed Regular Civil Appeal (Regular Civil Appeal No. 375 of 2000) before the learned District Judge Kolhapur. During pendency of the Civil Appeal appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (in short the CPC) seeking inter alia the following amendment:(i) By virtue of the Acquisition Act, and the provisions made thereunder, Caltex India Ltd. was converted into Hindustan Petroleum Corporation Ltd.(ii) As per Section 7 of the Acquisition Act, the Corporation has legal right to renew the lease on the same terms and conditions after its expiry.(iii) The Corporation by its letter dated 18.3.1989 had intimated to the plaintiff regarding its desire to renew the lease for a further period of 30 years. So automatically the lease period has been extended for 30 years.(iv) The suit filed on the basis of the said notice has no legal force. 4. By order dated 2.11.2002 the amendment was allowed. 5. By order dated 4.10.2004 the Civil appeal was dismissed. Second appeal was filed by the appellant before the Bombay High Court. By the impugned order the High Court dismissed the second appeal. 6. During the hearing of the appeal to avoid litigation between two public bodies the High Court suggested that the appellants may be granted time to vacate the suit plot subject to filing of undertaking but the appellant refused to accept the situation. Under Section 7(3) as noted by the High Court there is no automatic renewal and there can be renewal if it is so desired by the Central Government. In the instant case the other crucial question was whether the company was entitled to second renewal. The High Court held that option of renewal was exercised in the year 1978 at that time the provisions of the Act of 1977 were already enforced. 7. During the pendency of the appeal the appellants contended that they are entitled to benefit of Section 7(3). That plea is unacceptable as no reply was sent to the notice of termination and/or by referring to such right in the written statement filed in the trial court. If in the year 1979 i.e. on the expiry of the lease period, even if lease was to be renewed in terms of Section 7(3), extension could have been granted in terms of original lease for a period of 20 years from the year 1979. It is to be noted that the appellants are not entitled to the protection of Maharashtra Rent Control Act, 1999. Accordingly, the High Court held that there was no merit in the appeal which was dismissed. 8. Stands before the High Court were reiterated in this appeal. 9. Section 7(3) reads as follows: "7(3) On expiry of the term of any lease, tenancy or arrangement referred to in sub section (1) or sub section (2), such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued, so far as may be, on the same terms and conditions on which the lease or tenancy or arrangement was originally granted or entered into." 10. As rightly observed by the High Court that there is no automatic renewal and there can be renewal only if it is so desired by the Central Government. There is no material placed before the courts below that there was any desire in that regard by the Central Government.
### Response:
0
### Explanation:
As rightly observed by the High Court that there is no automatic renewal and there can be renewal only if it is so desired by the Central Government. There is no material placed before the courts below that there was any desire in that regard by the Central Government.
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Muthangi Ayyanna Vs. Muthangi Jaggarao & Others | Challagalla Nagayyas lands) be paid by defendants 6 and 7 to plaintiff and defendants 2 to 5 with interest thereon at 12 per cent per annum from the dates of the sale deeds.(iii) That an account be taken of the outstanding due to the family as on 6-12-1925 and the plaintiff and defendants 6 and 7 do furnish accounts in respect of the collections or loans etc., on and after that date.(iv) That plaintiff and defendants 6 and 7 do file accounts before the Commissioner in respect of the net income derived from the lands in plaint A and A-1 schedules which fell to their share prior to 1-7-1929 as mentioned in Exhibit XI, the account to be from 6-12-1925 till 1-7-1929.(v) That defendants 6 and 7 do render accounts for first defendants management of all the properties subsequent to December 6, 1925.(vi) That defendants 6 and 7 do deliver item 51 of the plaint B schedule to the plaintiff, (the other items having been divided between the parties with their consent in Court on November 30, 1942, as per memo filed by them on that date.(vii) That Mr. N. Venkat Rao, Vakil, be hereby appointed Commissioner for the purpose of taking account and submitting a report as expenditiously as possible after taking of such accounts (the outstandings as stated by the arbitrator in Exhibit 113 may be taken by him as showing prima facie a correct list of the outstandings and the account books produced and filed by the parties may be taken as prima facie correct accounts. The Commissioner will take into account the memo, dated 30-12-1942, filed by both parties into Court. He may take the direction of the Court as and when necessary.4. On appeal, the High Court modified that preliminary decree and substituted it by the following decree :1. That for the words and figures occurring in Clause 3 of the first paragraph of the decree of the lower court namely "on 6-12-1925", the following words and figures namely "on 30-9-1922" be and hereby the are substituted;2. That the finding of the lower court regarding the properties mentioned in Schedule A of the plaint viz. that it forms part of the joint family properties be and hereby is set aside partitioned amongst the parties to the suit;3. That for the words and figures in the decree of the lower court viz. "Plaint A and A(1) schedules", the following words and figures viz. "item 1 of the plaint A(1) schedule" be and hereby are substituted;4. That item 2 of the plaint A(1) schedule and items 2 and 3 mentioned in the A schedule attached to the written statement of defendants 6 and 7 be considered to have been items of joint family property and that they be taken to have been already allotted and that the plaintiff do keep the said item 2 of the plaint A(1) schedule and that defendants 6 and 7 do keep the items 2 and 3 of the said A schedule attached to the written statement of defendants 6 and 7 and that there be no part of any one of the parties to pay interest to the other;5. That for Clause 5 of the first paragraph of the decree of the lower court, the following paragraph viz. "that the plaintiff, the 2nd, 6th and the 7th defendants and other parties to the suit do equally render accounts for their respective management including the receipt of income, of all the properties subsequent to December 6, 1925"; be and hereby is substituted;6. That the Commissioner do follow the observations and directions contained in the judgment herein in respect of the income in particular of the estates of Prakkilanka and Annadevara;7. That Clause 6 of the first paragraph of the decree of the lower court be and hereby is deleted;8. That the finding of the lower court regarding the emerald listed as item 51 of the plaint B schedule, that it is the exclusive property of the plaintiff be and hereby is set aside and that the said item of property be and hereby is declared to belong to the joint family and is divisible; and9. That each party do bear their respective costs both in the appeal and in the memorandum of cross objections.5. Our attention has been invited to the pleadings of the parties and following statement of the claim mentioned in the judgment of the trial Court when passing the preliminary decree :First defendant in his written statement claims account of the management of the plaintiff and second defendant of the joint family properties and he values the claim tentatively at Rupees 3100 and paid a court fee of Rs. 269-15-9 thereon.6. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned for the appellant-defendant 4 submits, accounting to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendant 4, if the terms of the preliminary decree are binding. The contention is based on the well recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.7. Clause 5 of the decree of the High Court, on the appeal from the preliminary decree, had modified the decree passed by the trial Court, and had extended accounting to all parties to the suit who were impleaded both in their individual capacities and as representatives of their branches. Hence, we do not think that the Commissioner or the High Court had erred in interpreting the preliminary decree, as modified by the High Court on appeal, as embracing there relief granted by the final decree. As this is the only question, which is devoid of substance, argued before us, we need not consider any other question.8. Considering that this is a partition suit, we think that the costs throughout should be borne by the estate. | 0[ds]7. Clause 5 of the decree of the High Court, on the appeal from the preliminary decree, had modified the decree passed by the trial Court, and had extended accounting to all parties to the suit who were impleaded both in their individual capacities and as representatives of their branches. Hence, we do not think that the Commissioner or the High Court had erred in interpreting the preliminary decree, as modified by the High Court on appeal, as embracing there relief granted by the final decree. As this is the only question, which is devoid of substance, argued before us, we need not consider any other question.8. Considering that this is a partition suit, we think that the costs throughout should be borne by the estate. | 0 | 1,576 | 145 | ### 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:
Challagalla Nagayyas lands) be paid by defendants 6 and 7 to plaintiff and defendants 2 to 5 with interest thereon at 12 per cent per annum from the dates of the sale deeds.(iii) That an account be taken of the outstanding due to the family as on 6-12-1925 and the plaintiff and defendants 6 and 7 do furnish accounts in respect of the collections or loans etc., on and after that date.(iv) That plaintiff and defendants 6 and 7 do file accounts before the Commissioner in respect of the net income derived from the lands in plaint A and A-1 schedules which fell to their share prior to 1-7-1929 as mentioned in Exhibit XI, the account to be from 6-12-1925 till 1-7-1929.(v) That defendants 6 and 7 do render accounts for first defendants management of all the properties subsequent to December 6, 1925.(vi) That defendants 6 and 7 do deliver item 51 of the plaint B schedule to the plaintiff, (the other items having been divided between the parties with their consent in Court on November 30, 1942, as per memo filed by them on that date.(vii) That Mr. N. Venkat Rao, Vakil, be hereby appointed Commissioner for the purpose of taking account and submitting a report as expenditiously as possible after taking of such accounts (the outstandings as stated by the arbitrator in Exhibit 113 may be taken by him as showing prima facie a correct list of the outstandings and the account books produced and filed by the parties may be taken as prima facie correct accounts. The Commissioner will take into account the memo, dated 30-12-1942, filed by both parties into Court. He may take the direction of the Court as and when necessary.4. On appeal, the High Court modified that preliminary decree and substituted it by the following decree :1. That for the words and figures occurring in Clause 3 of the first paragraph of the decree of the lower court namely "on 6-12-1925", the following words and figures namely "on 30-9-1922" be and hereby the are substituted;2. That the finding of the lower court regarding the properties mentioned in Schedule A of the plaint viz. that it forms part of the joint family properties be and hereby is set aside partitioned amongst the parties to the suit;3. That for the words and figures in the decree of the lower court viz. "Plaint A and A(1) schedules", the following words and figures viz. "item 1 of the plaint A(1) schedule" be and hereby are substituted;4. That item 2 of the plaint A(1) schedule and items 2 and 3 mentioned in the A schedule attached to the written statement of defendants 6 and 7 be considered to have been items of joint family property and that they be taken to have been already allotted and that the plaintiff do keep the said item 2 of the plaint A(1) schedule and that defendants 6 and 7 do keep the items 2 and 3 of the said A schedule attached to the written statement of defendants 6 and 7 and that there be no part of any one of the parties to pay interest to the other;5. That for Clause 5 of the first paragraph of the decree of the lower court, the following paragraph viz. "that the plaintiff, the 2nd, 6th and the 7th defendants and other parties to the suit do equally render accounts for their respective management including the receipt of income, of all the properties subsequent to December 6, 1925"; be and hereby is substituted;6. That the Commissioner do follow the observations and directions contained in the judgment herein in respect of the income in particular of the estates of Prakkilanka and Annadevara;7. That Clause 6 of the first paragraph of the decree of the lower court be and hereby is deleted;8. That the finding of the lower court regarding the emerald listed as item 51 of the plaint B schedule, that it is the exclusive property of the plaintiff be and hereby is set aside and that the said item of property be and hereby is declared to belong to the joint family and is divisible; and9. That each party do bear their respective costs both in the appeal and in the memorandum of cross objections.5. Our attention has been invited to the pleadings of the parties and following statement of the claim mentioned in the judgment of the trial Court when passing the preliminary decree :First defendant in his written statement claims account of the management of the plaintiff and second defendant of the joint family properties and he values the claim tentatively at Rupees 3100 and paid a court fee of Rs. 269-15-9 thereon.6. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned for the appellant-defendant 4 submits, accounting to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendant 4, if the terms of the preliminary decree are binding. The contention is based on the well recognised proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.7. Clause 5 of the decree of the High Court, on the appeal from the preliminary decree, had modified the decree passed by the trial Court, and had extended accounting to all parties to the suit who were impleaded both in their individual capacities and as representatives of their branches. Hence, we do not think that the Commissioner or the High Court had erred in interpreting the preliminary decree, as modified by the High Court on appeal, as embracing there relief granted by the final decree. As this is the only question, which is devoid of substance, argued before us, we need not consider any other question.8. Considering that this is a partition suit, we think that the costs throughout should be borne by the estate.
### Response:
0
### Explanation:
7. Clause 5 of the decree of the High Court, on the appeal from the preliminary decree, had modified the decree passed by the trial Court, and had extended accounting to all parties to the suit who were impleaded both in their individual capacities and as representatives of their branches. Hence, we do not think that the Commissioner or the High Court had erred in interpreting the preliminary decree, as modified by the High Court on appeal, as embracing there relief granted by the final decree. As this is the only question, which is devoid of substance, argued before us, we need not consider any other question.8. Considering that this is a partition suit, we think that the costs throughout should be borne by the estate.
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Rakesh Malhotra Through Attorney Holder Vs. Rajinder Kumar Malhotra & Others | Kurian, J.1. Delay condoned.2. Leave granted.3. The appellant approached this Court aggrieved by the impugned orders dated 01.08.2016, 18.07.2016 and 17.06.2016 passed by the High Court of Judicature at Bombay in Appeal No.400 of 2016 in Contempt Petition NO.2 of 2015. As per the said order(s), on account of the alleged non-cooperation on the part of the appellant, the interim protection granted by the High Court against the order passed by the learned Single Judge in Contempt Petition was withdrawn and the appeal was dismissed.4. When the matter came up before this Court, on 28.10.2016 this Court passed the following order:-"The petitioner is directed to appear before the Division Bench of the High Court on 15.11.2016. On the petitioner thus appearing before the High Court, we request the High Court to consider Appeal No.400 of 2016 on merits ignoring the order of dismissal already passed, for non-appearance of the petitioner.It is made clear that till the appeal is thus disposed of by the High Court on merits, the petitioner shall not be arrested pursuant to the order dated 09.02.2016 passed by the learned Single Judge of the High Court.Post on 28.11.2016."5. Mr. V.K. Gupta, learned senior counsel appearing for the appellant has brought to the notice of this Court that the High Court has thereafter admitted the appeal by order dated 20.02.2017.6. In the above circumstances, there is no point in keeping these appeals any more pending before this Court. | 1[ds]6. In the above circumstances, there is no point in keeping these appeals any more pending before this Court. | 1 | 269 | 26 | ### 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:
Kurian, J.1. Delay condoned.2. Leave granted.3. The appellant approached this Court aggrieved by the impugned orders dated 01.08.2016, 18.07.2016 and 17.06.2016 passed by the High Court of Judicature at Bombay in Appeal No.400 of 2016 in Contempt Petition NO.2 of 2015. As per the said order(s), on account of the alleged non-cooperation on the part of the appellant, the interim protection granted by the High Court against the order passed by the learned Single Judge in Contempt Petition was withdrawn and the appeal was dismissed.4. When the matter came up before this Court, on 28.10.2016 this Court passed the following order:-"The petitioner is directed to appear before the Division Bench of the High Court on 15.11.2016. On the petitioner thus appearing before the High Court, we request the High Court to consider Appeal No.400 of 2016 on merits ignoring the order of dismissal already passed, for non-appearance of the petitioner.It is made clear that till the appeal is thus disposed of by the High Court on merits, the petitioner shall not be arrested pursuant to the order dated 09.02.2016 passed by the learned Single Judge of the High Court.Post on 28.11.2016."5. Mr. V.K. Gupta, learned senior counsel appearing for the appellant has brought to the notice of this Court that the High Court has thereafter admitted the appeal by order dated 20.02.2017.6. In the above circumstances, there is no point in keeping these appeals any more pending before this Court.
### Response:
1
### Explanation:
6. In the above circumstances, there is no point in keeping these appeals any more pending before this Court.
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Commr.Of Central Excise, Goa Vs. M/S Cosme Farma Laboratories Ltd | be considered and not the market value at which the respondent was selling the medicaments. 14. It had been further submitted by the learned counsel appearing for the respondent that the respondent-company was a loan licensee as per the provisions of the Drugs and Cosmetics Act, 1940 and the Rules made thereunder. He had submitted that the manufacturer of drugs/medicaments is having certain responsibilities with regard to quality of the drugs manufactured. Even if a manufacturer gets the drugs/medicaments manufactured by another person and sells the same under his brand name, the manufacturer, who has been given license to manufacture the drugs/medicaments, is responsible and is liable under the provisions of the Drugs and Cosmetics Act, 1940. A manufacturer, under the aforestated Act, has nothing to do with payment of duty under the provisions of the Central Excise Act, 1944 and therefore, the revenue authorities should not have looked into the provisions of the Drugs and Cosmetics Act, 1940 for the purpose of determining duty payable under the provisions of the Central Excise Act, 1944. 15. In view of the aforestated legal position, the learned counsel appearing for the respondent had submitted that the appeals should be dismissed as the Tribunal has rightly decided all the relevant issues. 16. We have heard the learned senior counsel for the parties at length and have also considered the order passed by the Tribunal as well as the judgments referred to by the learned counsel. 17. In our opinion, the submissions made on behalf of the respondent are correct and the appeals deserve to be dismissed for the reason that the manufacturing activity was done only by the job workers in their premises and with the help of their labour force and machinery. Simply because the job workers had to adhere to the quality control or the specification with regard to the quality prescribed by the respondent, it would not mean that the respondent is the manufacturer. 18. At the outset, we would like to clarify that the term ‘manufacturer? or the loan licensee used under the provisions of the Drugs and Cosmetics Act, 1940 has nothing to do with the manufacturing activity or term ‘manufacture? under the provisions of the Central Excise Act, 1944. Both the Acts referred to hereinabove have been enacted for different purposes. The provisions of the Drugs and Cosmetics Act, 1940 pertain to manufacture of drugs and quality of the drugs etc. The manufacturer of the drugs has to see that the quality of the drugs manufactured by him is as per certain standards and if there is any defect in the drugs manufactured by him or someone working under him, he becomes responsible or liable under the said Act. There is also a provision in the said Act with regard to getting the drugs manufactured by someone else. So a manufacturer, who is having a license to manufacture, can get the drugs/medicaments manufactured by another person under his supervision and he would be liable if the drugs manufactured by someone else are not as per the prescribed quality. Though the drugs/medicaments might not have been manufactured by the one who is a licensee and the actual manufacturer is guilty of manufacturing substandard drugs, the licensee becomes responsible and liable under the provisions in the said Act. 19. On the other hand, the provisions of the Central Excise Act, 1944 are for the purpose of imposing duty on the goods manufactured. The manufacturer becomes liable to pay certain duty as per the provisions of the said Act. 20. Thus, the term ‘loan licensee? used by the learned counsel appearing for the appellant is not much relevant as we are not concerned with the quality or standard of the drugs/medicaments manufactured by the loan licensee or anybody else manufacturing medicaments for him. 21. The learned counsel appearing for the respondent had also drawn our attention to a copy of one of the agreements entered into between the respondent and the job workers. Upon going through the said agreement, we find that the said agreement shows that the job workers were not assigned the work as agents of the respondent. The said agreement shows that the relationship between the parties is that of the principal and the principal and not that of the principal and the agent. Thus, it is clear that the job workers were not manufacturing the drugs as agents of the respondent or on behalf of the respondent, but they were carrying out the manufacturing activity independently and therefore, they were manufacturers of the drugs as per the provisions of the Central Excise Act, 1944. 22. In the light of the above factual position, it is also pertinent to find out whether the respondent is a manufacturer under the provisions of the Central Excise Act, 1944. Whether a person has manufactured a particular item or whether a person is a manufacturer is a question of fact. Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent – the loan licensee, was not the manufacturer, we see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse. We are, therefore, in agreement with the findings arrived at by the Tribunal that the job workers are the manufacturers. 23. Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 and the law laid down by this Court in the case of Pawan Biscuits (supra) and other cases. In such a case, the price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold. | 0[ds]17. In our opinion, the submissions made on behalf of the respondent are correct and the appeals deserve to be dismissed for the reason that the manufacturing activity was done only by the job workers in their premises and with the help of their labour force and machinery. Simply because the job workers had to adhere to the quality control or the specification with regard to the quality prescribed by the respondent, it would not mean that the respondent is the manufacturer22. In the light of the above factual position, it is also pertinent to find out whether the respondent is a manufacturer under the provisions of the Central Excise Act, 1944. Whether a person has manufactured a particular item or whether a person is a manufacturer is a question of fact. Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent – the loan licensee, was not the manufacturer, we see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse. We are, therefore, in agreement with the findings arrived at by the Tribunal that the job workers are the manufacturers23. Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 and the law laid down by this Court in the case of Pawan Biscuits (supra) and other cases. In such a case, the price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold. | 0 | 2,672 | 343 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
be considered and not the market value at which the respondent was selling the medicaments. 14. It had been further submitted by the learned counsel appearing for the respondent that the respondent-company was a loan licensee as per the provisions of the Drugs and Cosmetics Act, 1940 and the Rules made thereunder. He had submitted that the manufacturer of drugs/medicaments is having certain responsibilities with regard to quality of the drugs manufactured. Even if a manufacturer gets the drugs/medicaments manufactured by another person and sells the same under his brand name, the manufacturer, who has been given license to manufacture the drugs/medicaments, is responsible and is liable under the provisions of the Drugs and Cosmetics Act, 1940. A manufacturer, under the aforestated Act, has nothing to do with payment of duty under the provisions of the Central Excise Act, 1944 and therefore, the revenue authorities should not have looked into the provisions of the Drugs and Cosmetics Act, 1940 for the purpose of determining duty payable under the provisions of the Central Excise Act, 1944. 15. In view of the aforestated legal position, the learned counsel appearing for the respondent had submitted that the appeals should be dismissed as the Tribunal has rightly decided all the relevant issues. 16. We have heard the learned senior counsel for the parties at length and have also considered the order passed by the Tribunal as well as the judgments referred to by the learned counsel. 17. In our opinion, the submissions made on behalf of the respondent are correct and the appeals deserve to be dismissed for the reason that the manufacturing activity was done only by the job workers in their premises and with the help of their labour force and machinery. Simply because the job workers had to adhere to the quality control or the specification with regard to the quality prescribed by the respondent, it would not mean that the respondent is the manufacturer. 18. At the outset, we would like to clarify that the term ‘manufacturer? or the loan licensee used under the provisions of the Drugs and Cosmetics Act, 1940 has nothing to do with the manufacturing activity or term ‘manufacture? under the provisions of the Central Excise Act, 1944. Both the Acts referred to hereinabove have been enacted for different purposes. The provisions of the Drugs and Cosmetics Act, 1940 pertain to manufacture of drugs and quality of the drugs etc. The manufacturer of the drugs has to see that the quality of the drugs manufactured by him is as per certain standards and if there is any defect in the drugs manufactured by him or someone working under him, he becomes responsible or liable under the said Act. There is also a provision in the said Act with regard to getting the drugs manufactured by someone else. So a manufacturer, who is having a license to manufacture, can get the drugs/medicaments manufactured by another person under his supervision and he would be liable if the drugs manufactured by someone else are not as per the prescribed quality. Though the drugs/medicaments might not have been manufactured by the one who is a licensee and the actual manufacturer is guilty of manufacturing substandard drugs, the licensee becomes responsible and liable under the provisions in the said Act. 19. On the other hand, the provisions of the Central Excise Act, 1944 are for the purpose of imposing duty on the goods manufactured. The manufacturer becomes liable to pay certain duty as per the provisions of the said Act. 20. Thus, the term ‘loan licensee? used by the learned counsel appearing for the appellant is not much relevant as we are not concerned with the quality or standard of the drugs/medicaments manufactured by the loan licensee or anybody else manufacturing medicaments for him. 21. The learned counsel appearing for the respondent had also drawn our attention to a copy of one of the agreements entered into between the respondent and the job workers. Upon going through the said agreement, we find that the said agreement shows that the job workers were not assigned the work as agents of the respondent. The said agreement shows that the relationship between the parties is that of the principal and the principal and not that of the principal and the agent. Thus, it is clear that the job workers were not manufacturing the drugs as agents of the respondent or on behalf of the respondent, but they were carrying out the manufacturing activity independently and therefore, they were manufacturers of the drugs as per the provisions of the Central Excise Act, 1944. 22. In the light of the above factual position, it is also pertinent to find out whether the respondent is a manufacturer under the provisions of the Central Excise Act, 1944. Whether a person has manufactured a particular item or whether a person is a manufacturer is a question of fact. Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent – the loan licensee, was not the manufacturer, we see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse. We are, therefore, in agreement with the findings arrived at by the Tribunal that the job workers are the manufacturers. 23. Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 and the law laid down by this Court in the case of Pawan Biscuits (supra) and other cases. In such a case, the price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold.
### Response:
0
### Explanation:
17. In our opinion, the submissions made on behalf of the respondent are correct and the appeals deserve to be dismissed for the reason that the manufacturing activity was done only by the job workers in their premises and with the help of their labour force and machinery. Simply because the job workers had to adhere to the quality control or the specification with regard to the quality prescribed by the respondent, it would not mean that the respondent is the manufacturer22. In the light of the above factual position, it is also pertinent to find out whether the respondent is a manufacturer under the provisions of the Central Excise Act, 1944. Whether a person has manufactured a particular item or whether a person is a manufacturer is a question of fact. Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent – the loan licensee, was not the manufacturer, we see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse. We are, therefore, in agreement with the findings arrived at by the Tribunal that the job workers are the manufacturers23. Once it has been determined that the job workers are the manufacturers, the assessable value of the goods would be a sum total of cost of raw material, labour charges and profit of the job workers, as per circular No.619/10/2002-CX dated 19th February, 2002 and the law laid down by this Court in the case of Pawan Biscuits (supra) and other cases. In such a case, the price at which the respondent brand owner sells its goods would not be the assessable value because the duty is to be paid at the stage at which the goods are manufactured and not at the stage when the goods are sold.
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VINOD RAVJIBHAI RAJPUT Vs. STATE OF GUJARAT & ORS | 7. A candidate appointed by direct selection shall have to undergo such training according to his job and to pass such examination as may be prescribed by the Government from time to time. 26. On behalf of the Respondents, it was also argued that, the conditions for regularization of Class IV employees have been laid down in a Government Resolution dated 1 st May 2007. For regularization, the employees needed to fulfill the following conditions: (i) On 10 th February, 2006, the employees should have completed ten years of service, putting in atleast 6 hours of work per day. The ten year period should not be on the strength of any order of the Court or the Tribunal; (ii) The employees who had completed ten years of service should have been appointed in accordance with recruitment procedure prevailing at the relevant point of time. In other words, their names should have been recommended by the Employment Exchange, Social Welfare Authority etc.; (iii) At the time of temporary appointment, the employee should have had the requisite eligibility for being appointed to the particular post of Class IV and; (iv) the appointment should have been sanctioned by a competent authority and the appointment should have been against a vacant post. 27. The Respondent Authorities have been contending that the Appellant had not fulfilled condition No.(i) of the Government Resolution dated 1 st May 2007, as he had not completed ten years of service as a temporary employee on 10 th February 2006, but put in nine years and four months of service. His continuance thereafter, was on the strength of the order passed by the High Court. 28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked. 29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 . 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation. 31. In Letters Patent Appeal No. 635 of 2013, the Division Bench held that the view taken by the Respondent Authorities was unreasonable for the following reasons:- (i) It was not in dispute that the appellant was appointed as a part-time Gallery Attendant on 14 th March, 1995; (ii) at that time post of full-time Gallery Attendant was vacant; (iii) the name of the appellant had been forwarded by the Employment Exchange and he had been interviewed; (iv) the appellant held a certificate of the Museum certifying his sincerity and honesty as Gallery Attendant; (v) on 25 th July, 2002, the appellant had been appointed as a full-time Gallery Attendant with the prior permission and sanction of the Director, Sangrahalaya Department, State of Gujarat. (vi) The order of termination dated 1 st July, 2004 was issued after permitting the appellant to work as full-time regular Gallery Attendant for almost a period of two years. (vii) By the time the order of termination had been issued, the appellant had put in nine years and four months of combined service as part-time employee and as full-time Gallery Attendant. (viii) The learned Single Judge had passed an interim order on being prima facie satisfied of the merits of the case of the appellant. 32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench. 33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013. | 1[ds]23. May be, as argued by learned Counsel on behalf of the Respondent Authorities, the order of appointment i.e. 14 th October 2013 does not bear any reference to the judgment and order of the Division Bench, dated 22 nd August 2013 in Letters Patent Appeal No.635 of 2013. However, the aforesaid judgment and order, against which there was no appeal, has assumed finality and is binding on the Respondents28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013. | 1 | 3,059 | 646 | ### Instruction:
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7. A candidate appointed by direct selection shall have to undergo such training according to his job and to pass such examination as may be prescribed by the Government from time to time. 26. On behalf of the Respondents, it was also argued that, the conditions for regularization of Class IV employees have been laid down in a Government Resolution dated 1 st May 2007. For regularization, the employees needed to fulfill the following conditions: (i) On 10 th February, 2006, the employees should have completed ten years of service, putting in atleast 6 hours of work per day. The ten year period should not be on the strength of any order of the Court or the Tribunal; (ii) The employees who had completed ten years of service should have been appointed in accordance with recruitment procedure prevailing at the relevant point of time. In other words, their names should have been recommended by the Employment Exchange, Social Welfare Authority etc.; (iii) At the time of temporary appointment, the employee should have had the requisite eligibility for being appointed to the particular post of Class IV and; (iv) the appointment should have been sanctioned by a competent authority and the appointment should have been against a vacant post. 27. The Respondent Authorities have been contending that the Appellant had not fulfilled condition No.(i) of the Government Resolution dated 1 st May 2007, as he had not completed ten years of service as a temporary employee on 10 th February 2006, but put in nine years and four months of service. His continuance thereafter, was on the strength of the order passed by the High Court. 28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked. 29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 . 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation. 31. In Letters Patent Appeal No. 635 of 2013, the Division Bench held that the view taken by the Respondent Authorities was unreasonable for the following reasons:- (i) It was not in dispute that the appellant was appointed as a part-time Gallery Attendant on 14 th March, 1995; (ii) at that time post of full-time Gallery Attendant was vacant; (iii) the name of the appellant had been forwarded by the Employment Exchange and he had been interviewed; (iv) the appellant held a certificate of the Museum certifying his sincerity and honesty as Gallery Attendant; (v) on 25 th July, 2002, the appellant had been appointed as a full-time Gallery Attendant with the prior permission and sanction of the Director, Sangrahalaya Department, State of Gujarat. (vi) The order of termination dated 1 st July, 2004 was issued after permitting the appellant to work as full-time regular Gallery Attendant for almost a period of two years. (vii) By the time the order of termination had been issued, the appellant had put in nine years and four months of combined service as part-time employee and as full-time Gallery Attendant. (viii) The learned Single Judge had passed an interim order on being prima facie satisfied of the merits of the case of the appellant. 32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench. 33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013.
### Response:
1
### Explanation:
23. May be, as argued by learned Counsel on behalf of the Respondent Authorities, the order of appointment i.e. 14 th October 2013 does not bear any reference to the judgment and order of the Division Bench, dated 22 nd August 2013 in Letters Patent Appeal No.635 of 2013. However, the aforesaid judgment and order, against which there was no appeal, has assumed finality and is binding on the Respondents28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013.
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C. MANJAMMA & ANR Vs. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD | the said insurance policy and on examining thoroughly and considering the factors addressed during arguments of the learned counsel for both the parties with regard to payment of compensation due to the first and second petitioner under law towards the death of the deceased, it is decided that, the second respondent is liable to pay compensation of Rs. 4,15,960-00 to the first and second petitioners under statute with regard to the death of the deceased. 7. In the insurers appeal against the judgment and award aforesaid, the High Court took note of the facts and circumstances of the case and the findings of the Commissioner and then, with reference to the decision of this Court in Shakuntala Chandrakant Shreshti vs Prabhakar Maruti Garvali & Anr.: (2007) 11 SCC 668, particularly paragraph 38 to 42 thereof, found the judgment and award made by the Commissioner unsustainable for the following reasons: - 21. As noticed hereinabove, there is no oral evidence with regard to admission of the workman into the hospital. Further, the cause of death is not forthcoming in the records. Therefore, in my considered view, the conclusion arrived at by the W.C. Commissioner that there exists a nexus between the cause of death and the occupation of workman is not supported by any evidence and therefore, the W.C. Commissioner does not get jurisdiction to award compensation. 8. Assailing the judgment and order so passed by the High Court, learned counsel for the appellant has strenuously argued that in this case, the fundamental facts stand duly established by evidence produced on record that the deceased was 30 years of age; he was engaged as a driver on the auto-rickshaw; and he expired while on duty because of cardiac arrest, which he suffered due to the strain and stress of his job. Learned counsel would submit that on the basis of relevant material, the Commissioner had recorded cogent findings of fact and there had not been any perversity in such findings so as to call for interference by the High Court. Learned counsel would further submit that the decision in the case of Shakuntala Chandrakant Shreshti(supra) is clearly distinguishable because the deceased therein was engaged on the job of a cleaner on the vehicle and this Court consciously took note of the fact that nature of his duty, being of helper, was not such that it would cause stress or strain. Learned counsel has further drawn our attention to the observations made in paragraph 38 of the said decision and has submitted that in the present case, the basic and foundational facts have been established by the claimants that it had been a case of death during the course of employment and having been caused due to the reasons attributable to the employment. Learned counsel has also submitted that there was no such substantial question of law involved in the matter so as to call for interference by the High Court. 9. Per contra, learned counsel for the respondent-insurer has duly supported the judgment and order passed by the High Court and has emphasised on the contentions that the appellants have failed to establish that the death occurred due to employment or due to reasons attributable to the employment. Learned counsel would rely upon the decision in Shakuntala Chandrakant Shreshti (supra). According to the learned counsel, since the claimants failed to prove the basic jurisdictional facts, the High Court has rightly interfered in the matter. 10. Having given anxious consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are clearly of the view that the impugned judgment and order cannot be sustained as there was no substantial question of law involved in the matter for which, the High Court could have interfered with the judgment and award made by the Commissioner. 11. As noticed above, the Commissioner had returned the basic findings of fact with reference to the material placed on record. It is noticed that the claimants i.e., the wife and mother of the deceased, had indeed placed on record the FIR, inquest mahazar, spot mahazar, charge-sheet and post mortem report along with FSL report. The Commissioner, with reference to the said evidence as also after analysing the rebuttal evidence adduced by the respondent-insurer, recorded the findings which cannot be said to be perverse or suffering from any such manifest illegality so as to give rise to a substantial question of law for consideration of the High Court. 12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti(supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933. | 1[ds]10. Having given anxious consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are clearly of the view that the impugned judgment and order cannot be sustained as there was no substantial question of law involved in the matter for which, the High Court could have interfered with the judgment and award made by the Commissioner.11. As noticed above, the Commissioner had returned the basic findings of fact with reference to the material placed on record. It is noticed that the claimants i.e., the wife and mother of the deceased, had indeed placed on record the FIR, inquest mahazar, spot mahazar, charge-sheet and post mortem report along with FSL report. The Commissioner, with reference to the said evidence as also after analysing the rebuttal evidence adduced by the respondent-insurer, recorded the findings which cannot be said to be perverse or suffering from any such manifest illegality so as to give rise to a substantial question of law for consideration of the High Court.12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti(supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933. | 1 | 1,727 | 468 | ### Instruction:
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the said insurance policy and on examining thoroughly and considering the factors addressed during arguments of the learned counsel for both the parties with regard to payment of compensation due to the first and second petitioner under law towards the death of the deceased, it is decided that, the second respondent is liable to pay compensation of Rs. 4,15,960-00 to the first and second petitioners under statute with regard to the death of the deceased. 7. In the insurers appeal against the judgment and award aforesaid, the High Court took note of the facts and circumstances of the case and the findings of the Commissioner and then, with reference to the decision of this Court in Shakuntala Chandrakant Shreshti vs Prabhakar Maruti Garvali & Anr.: (2007) 11 SCC 668, particularly paragraph 38 to 42 thereof, found the judgment and award made by the Commissioner unsustainable for the following reasons: - 21. As noticed hereinabove, there is no oral evidence with regard to admission of the workman into the hospital. Further, the cause of death is not forthcoming in the records. Therefore, in my considered view, the conclusion arrived at by the W.C. Commissioner that there exists a nexus between the cause of death and the occupation of workman is not supported by any evidence and therefore, the W.C. Commissioner does not get jurisdiction to award compensation. 8. Assailing the judgment and order so passed by the High Court, learned counsel for the appellant has strenuously argued that in this case, the fundamental facts stand duly established by evidence produced on record that the deceased was 30 years of age; he was engaged as a driver on the auto-rickshaw; and he expired while on duty because of cardiac arrest, which he suffered due to the strain and stress of his job. Learned counsel would submit that on the basis of relevant material, the Commissioner had recorded cogent findings of fact and there had not been any perversity in such findings so as to call for interference by the High Court. Learned counsel would further submit that the decision in the case of Shakuntala Chandrakant Shreshti(supra) is clearly distinguishable because the deceased therein was engaged on the job of a cleaner on the vehicle and this Court consciously took note of the fact that nature of his duty, being of helper, was not such that it would cause stress or strain. Learned counsel has further drawn our attention to the observations made in paragraph 38 of the said decision and has submitted that in the present case, the basic and foundational facts have been established by the claimants that it had been a case of death during the course of employment and having been caused due to the reasons attributable to the employment. Learned counsel has also submitted that there was no such substantial question of law involved in the matter so as to call for interference by the High Court. 9. Per contra, learned counsel for the respondent-insurer has duly supported the judgment and order passed by the High Court and has emphasised on the contentions that the appellants have failed to establish that the death occurred due to employment or due to reasons attributable to the employment. Learned counsel would rely upon the decision in Shakuntala Chandrakant Shreshti (supra). According to the learned counsel, since the claimants failed to prove the basic jurisdictional facts, the High Court has rightly interfered in the matter. 10. Having given anxious consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are clearly of the view that the impugned judgment and order cannot be sustained as there was no substantial question of law involved in the matter for which, the High Court could have interfered with the judgment and award made by the Commissioner. 11. As noticed above, the Commissioner had returned the basic findings of fact with reference to the material placed on record. It is noticed that the claimants i.e., the wife and mother of the deceased, had indeed placed on record the FIR, inquest mahazar, spot mahazar, charge-sheet and post mortem report along with FSL report. The Commissioner, with reference to the said evidence as also after analysing the rebuttal evidence adduced by the respondent-insurer, recorded the findings which cannot be said to be perverse or suffering from any such manifest illegality so as to give rise to a substantial question of law for consideration of the High Court. 12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti(supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933.
### Response:
1
### Explanation:
10. Having given anxious consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are clearly of the view that the impugned judgment and order cannot be sustained as there was no substantial question of law involved in the matter for which, the High Court could have interfered with the judgment and award made by the Commissioner.11. As noticed above, the Commissioner had returned the basic findings of fact with reference to the material placed on record. It is noticed that the claimants i.e., the wife and mother of the deceased, had indeed placed on record the FIR, inquest mahazar, spot mahazar, charge-sheet and post mortem report along with FSL report. The Commissioner, with reference to the said evidence as also after analysing the rebuttal evidence adduced by the respondent-insurer, recorded the findings which cannot be said to be perverse or suffering from any such manifest illegality so as to give rise to a substantial question of law for consideration of the High Court.12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti(supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933.
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Daji Krishnaji Desai Tambulkar Vs. Ganesh Vishnu Kulkarni And Others | by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property, on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabi was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5 ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent No. 1, purchased the shares of these persons by the sale deeds dated December 14, 1903 and February 13, 1904. On Kulkarnis death, respondent No. 1 became the owner of the property, Respondents Nos. 2 to 4 are the tenants of respondent No. 13. The land in suit is khoti land as defined in Cl. (10) of S. 3 of the Khoti Settlement Act, 1880 (Bom Act I of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to Cl. (2) of S. 3, includes a mortgagee lawfully in possession of Khotki and all co-sharers in a khoti. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecessor-in-interest of respondent No. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer.4. The plaintiff alleged that the sale deed in favour of respondent No. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour.5. Respondent No. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore, the plaintiff obtained no title on the basis of the sale deed in his favour.6. The trial Court held the sale deed of 1892 to be good sale deed and binding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of S. 9 of the Act by S. 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was necessary for executing the sale deed in 1945. Respondent No. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour of the plaintiff too would be hit by the provisions of S. 9 of the Act. It further held that the provisions of S. 9 indicate that there was no absolute prohibition against a transfer of the occupancy right. A transfer by an occupancy tenant without the consent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent No. 1s predecessor-in-interest in 1892 not to be void. It is the correctness of this order that is challenged in this appeal.7. This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to S. 9 of the Act and the section after amendment reads:"The rights of khots and privileged occupants shall be heritable and transferable." Privileged occupant included a permanent tenant under Cl. (5) of S. 3 of the Act. The Bombay Tenancy act received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under sub-sec. (3) of S. 1 of that Act. It is clear therefore that S. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the kbot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of S. 9 of the Act as the sale of the land in suit in favor of the predecessor-in-interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or viodable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent No. 1s predecessor-in-interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct. | 0[ds]7. This appeal has nois clear therefore that S. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the kbot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of S. 9 of the Act as the sale of the land in suit in favor of the predecessor-in-interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or viodable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent No. 1s predecessor-in-interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct. | 0 | 1,168 | 270 | ### Instruction:
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by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property, on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabi was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5 ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent No. 1, purchased the shares of these persons by the sale deeds dated December 14, 1903 and February 13, 1904. On Kulkarnis death, respondent No. 1 became the owner of the property, Respondents Nos. 2 to 4 are the tenants of respondent No. 13. The land in suit is khoti land as defined in Cl. (10) of S. 3 of the Khoti Settlement Act, 1880 (Bom Act I of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to Cl. (2) of S. 3, includes a mortgagee lawfully in possession of Khotki and all co-sharers in a khoti. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecessor-in-interest of respondent No. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer.4. The plaintiff alleged that the sale deed in favour of respondent No. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour.5. Respondent No. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore, the plaintiff obtained no title on the basis of the sale deed in his favour.6. The trial Court held the sale deed of 1892 to be good sale deed and binding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of S. 9 of the Act by S. 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was necessary for executing the sale deed in 1945. Respondent No. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour of the plaintiff too would be hit by the provisions of S. 9 of the Act. It further held that the provisions of S. 9 indicate that there was no absolute prohibition against a transfer of the occupancy right. A transfer by an occupancy tenant without the consent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent No. 1s predecessor-in-interest in 1892 not to be void. It is the correctness of this order that is challenged in this appeal.7. This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to S. 9 of the Act and the section after amendment reads:"The rights of khots and privileged occupants shall be heritable and transferable." Privileged occupant included a permanent tenant under Cl. (5) of S. 3 of the Act. The Bombay Tenancy act received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under sub-sec. (3) of S. 1 of that Act. It is clear therefore that S. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the kbot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of S. 9 of the Act as the sale of the land in suit in favor of the predecessor-in-interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or viodable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent No. 1s predecessor-in-interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct.
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7. This appeal has nois clear therefore that S. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the kbot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of S. 9 of the Act as the sale of the land in suit in favor of the predecessor-in-interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or viodable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent No. 1s predecessor-in-interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct.
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Prem Narayan Singh and Ors Vs. Hon?ble High Court of Madhya Pradesh | their seniority which was settled at the time of their promotion cannot be disturbed. The Petitioners suggested that Rule 11 (4) (b) of 2017 Rules, according to which inter se seniority of the District Judges promoted through LCE should be on the basis of seniority in the lower cadre, is contrary to law. Petitioners referred to a judgment of this Court in Dinesh Kumar Gupta & Ors. v. Honble High Court of Judicature of Rajasthan and Ors. (2020) SCC Online SC 420 to submit that this Court while interpreting a Rule which is in pari materia, held that inter se seniority of District Judges promoted through LCE should be on the basis of merit in the examination. 11. The resolution of the Administrative Committee dated 14.12.2017 which was approved by the Full Court was supported by Mr. Ravindra Shrivastava, learned Senior Counsel by arguing that the view taken by the High Court is a possible view and should not be interfered with by this Court. However, Mr. Shrivastava submitted that dispute relating to the criteria for inter se seniority of LCE candidates has been settled by this Court in Dinesh Kumar Guptas case. 12. Mr. Dushyant Dave, learned Senior Counsel appearing for the impleaded Respondents submitted that the Writ Petition deserves to be dismissed in limine for non-joinder of the parties. None of the District Judges who would be adversely affected have been made parties to the Writ Petition. He argued that introduction of LCE is only for providing a method of recruitment. He submitted that promotion to the Higher Judicial Services is on the basis of seniority-cum-merit to which an exception is carved out by providing a channel of promotion on the basis of merit amongst senior Civil Judges. Merit has to be restricted only for the purpose of selection. This Court in All India Judges Associations case did not hold that the inter se seniority of District Judges promoted through LCE should be on the basis of merit. According to him, if the Petitioners case is accepted, the senior Civil Judges who have already been selected as District Judges through LCE would be seriously affected. The decision of this Court in Dinesh Kumar Guptas case is per incuriam, according to Mr. Dave as it is contrary to the law laid down in All India Judges Association and it needs to be ignored. He further argued that the earlier decisions of the Full Court are contrary to the Rules and the decision of the Administrative Committee in 2017 is in strict conformity with the Rules. 13. Appointment to Higher Judicial Services in accordance with the Rules was initially by direct recruitment and promotion. On the basis of the recommendations by Justice Shetty Commission, this Court directed that 25 per cent of posts in the service filled by promotion should be strictly on the basis of merit through LCE of Civil Judges (Senior Division). The High Courts were directed to frame appropriate rules in conformity with the judgment in All India Judges Association. This channel of promotion on the basis of merit in LCE was introduced to provide an incentive to relatively junior officers to get quicker promotion. 14. In Dinesh Kumar Gupta (supra), this Court considered the issue relating to inter se seniority of District Judges promoted through LCE. Source of recruitment to the Rajasthan Higher Judicial Services in Rule 31 of Rajasthan Higher Judicial Service Rules, 2010 is similar to Rule 5 of the Madhya Pradesh Higher Judicial Service Rules. The decision of the Administrative Committee that the seniority in the lower cadre is to be taken into account for the purpose of inter se seniority of the District Judges promoted through LCE was held not to be justified by this Court. It was observed in Dinesh Kumar Gupta (supra) that LCE will be reduced to a mere qualifying examination if inter se seniority in the lower cadre has to be taken into account for determining the seniority of District Judges promoted through LCE. This Court declared that the inter se placement of candidates selected through LCE must be based on merit and not on the basis of seniority in the erstwhile cadre. 15. We are not in agreement with the learned Senior Counsel appearing for the impleaded Respondents that the judgment of this Court in Dinesh Kumar Gupta (supra) is contrary to the law laid down by this Court in All India Judges Associations case. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE. 16. The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE. 17. Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre. | 1[ds]13. Appointment to Higher Judicial Services in accordance with the Rules was initially by direct recruitment and promotion. On the basis of the recommendations by Justice Shetty Commission, this Court directed that 25 per cent of posts in the service filled by promotion should be strictly on the basis of merit through LCE of Civil Judges (Senior Division). The High Courts were directed to frame appropriate rules in conformity with the judgment in All India Judges Association. This channel of promotion on the basis of merit in LCE was introduced to provide an incentive to relatively junior officers to get quicker promotion.14. In Dinesh Kumar Gupta (supra), this Court considered the issue relating to inter se seniority of District Judges promoted through LCE. Source of recruitment to the Rajasthan Higher Judicial Services in Rule 31 of Rajasthan Higher Judicial Service Rules, 2010 is similar to Rule 5 of the Madhya Pradesh Higher Judicial Service Rules. The decision of the Administrative Committee that the seniority in the lower cadre is to be taken into account for the purpose of inter se seniority of the District Judges promoted through LCE was held not to be justified by this Court. It was observed in Dinesh Kumar Gupta (supra) that LCE will be reduced to a mere qualifying examination if inter se seniority in the lower cadre has to be taken into account for determining the seniority of District Judges promoted through LCE. This Court declared that the inter se placement of candidates selected through LCE must be based on merit and not on the basis of seniority in the erstwhile cadre.15. We are not in agreement with the learned Senior Counsel appearing for the impleaded Respondents that the judgment of this Court in Dinesh Kumar Gupta (supra) is contrary to the law laid down by this Court in All India Judges Associations case. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE.16. The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE.17. Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre. | 1 | 3,398 | 614 | ### Instruction:
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their seniority which was settled at the time of their promotion cannot be disturbed. The Petitioners suggested that Rule 11 (4) (b) of 2017 Rules, according to which inter se seniority of the District Judges promoted through LCE should be on the basis of seniority in the lower cadre, is contrary to law. Petitioners referred to a judgment of this Court in Dinesh Kumar Gupta & Ors. v. Honble High Court of Judicature of Rajasthan and Ors. (2020) SCC Online SC 420 to submit that this Court while interpreting a Rule which is in pari materia, held that inter se seniority of District Judges promoted through LCE should be on the basis of merit in the examination. 11. The resolution of the Administrative Committee dated 14.12.2017 which was approved by the Full Court was supported by Mr. Ravindra Shrivastava, learned Senior Counsel by arguing that the view taken by the High Court is a possible view and should not be interfered with by this Court. However, Mr. Shrivastava submitted that dispute relating to the criteria for inter se seniority of LCE candidates has been settled by this Court in Dinesh Kumar Guptas case. 12. Mr. Dushyant Dave, learned Senior Counsel appearing for the impleaded Respondents submitted that the Writ Petition deserves to be dismissed in limine for non-joinder of the parties. None of the District Judges who would be adversely affected have been made parties to the Writ Petition. He argued that introduction of LCE is only for providing a method of recruitment. He submitted that promotion to the Higher Judicial Services is on the basis of seniority-cum-merit to which an exception is carved out by providing a channel of promotion on the basis of merit amongst senior Civil Judges. Merit has to be restricted only for the purpose of selection. This Court in All India Judges Associations case did not hold that the inter se seniority of District Judges promoted through LCE should be on the basis of merit. According to him, if the Petitioners case is accepted, the senior Civil Judges who have already been selected as District Judges through LCE would be seriously affected. The decision of this Court in Dinesh Kumar Guptas case is per incuriam, according to Mr. Dave as it is contrary to the law laid down in All India Judges Association and it needs to be ignored. He further argued that the earlier decisions of the Full Court are contrary to the Rules and the decision of the Administrative Committee in 2017 is in strict conformity with the Rules. 13. Appointment to Higher Judicial Services in accordance with the Rules was initially by direct recruitment and promotion. On the basis of the recommendations by Justice Shetty Commission, this Court directed that 25 per cent of posts in the service filled by promotion should be strictly on the basis of merit through LCE of Civil Judges (Senior Division). The High Courts were directed to frame appropriate rules in conformity with the judgment in All India Judges Association. This channel of promotion on the basis of merit in LCE was introduced to provide an incentive to relatively junior officers to get quicker promotion. 14. In Dinesh Kumar Gupta (supra), this Court considered the issue relating to inter se seniority of District Judges promoted through LCE. Source of recruitment to the Rajasthan Higher Judicial Services in Rule 31 of Rajasthan Higher Judicial Service Rules, 2010 is similar to Rule 5 of the Madhya Pradesh Higher Judicial Service Rules. The decision of the Administrative Committee that the seniority in the lower cadre is to be taken into account for the purpose of inter se seniority of the District Judges promoted through LCE was held not to be justified by this Court. It was observed in Dinesh Kumar Gupta (supra) that LCE will be reduced to a mere qualifying examination if inter se seniority in the lower cadre has to be taken into account for determining the seniority of District Judges promoted through LCE. This Court declared that the inter se placement of candidates selected through LCE must be based on merit and not on the basis of seniority in the erstwhile cadre. 15. We are not in agreement with the learned Senior Counsel appearing for the impleaded Respondents that the judgment of this Court in Dinesh Kumar Gupta (supra) is contrary to the law laid down by this Court in All India Judges Associations case. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE. 16. The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE. 17. Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre.
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13. Appointment to Higher Judicial Services in accordance with the Rules was initially by direct recruitment and promotion. On the basis of the recommendations by Justice Shetty Commission, this Court directed that 25 per cent of posts in the service filled by promotion should be strictly on the basis of merit through LCE of Civil Judges (Senior Division). The High Courts were directed to frame appropriate rules in conformity with the judgment in All India Judges Association. This channel of promotion on the basis of merit in LCE was introduced to provide an incentive to relatively junior officers to get quicker promotion.14. In Dinesh Kumar Gupta (supra), this Court considered the issue relating to inter se seniority of District Judges promoted through LCE. Source of recruitment to the Rajasthan Higher Judicial Services in Rule 31 of Rajasthan Higher Judicial Service Rules, 2010 is similar to Rule 5 of the Madhya Pradesh Higher Judicial Service Rules. The decision of the Administrative Committee that the seniority in the lower cadre is to be taken into account for the purpose of inter se seniority of the District Judges promoted through LCE was held not to be justified by this Court. It was observed in Dinesh Kumar Gupta (supra) that LCE will be reduced to a mere qualifying examination if inter se seniority in the lower cadre has to be taken into account for determining the seniority of District Judges promoted through LCE. This Court declared that the inter se placement of candidates selected through LCE must be based on merit and not on the basis of seniority in the erstwhile cadre.15. We are not in agreement with the learned Senior Counsel appearing for the impleaded Respondents that the judgment of this Court in Dinesh Kumar Gupta (supra) is contrary to the law laid down by this Court in All India Judges Associations case. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE.16. The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE.17. Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre.
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Commissioner of Income Tax, Assam, Tripura, Manipur and Nagaland Vs. Rameshwarlal Sanwarmal | within time, reliance was placed by the department on the second proviso to section 34(3). That proviso reads" Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment maybe made, shall apply to a reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A." 4. What was contended on behalf of the department is that the reassessment in this case was made under section 27. That contention has been upheld by the Appellate Assistant Commissioner as well as by the Tribunal. But the High Court has come to the conclusion that the reassessment was not made under that section 5. To recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family. The status shown in the return is Hindu undivided family. He filed no return in the status of an individual. The same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability to be taxed as an individual is different from the liability to be taxed on behalf of his Hindu undivided family. The individual and the Hindu undivided family are totally different units of taxation. They are two different assessees. The ex parte order was made on February 29, 1960, against Saharia in the status of an individual. What was set aside under section 27 was the assessment made on him in the status of an individual. There was no assessment against the Hindu undivided family. Hence, there was no question of setting aside any assessment made against the Hindu undivided family. On February 6, 1961, the Hindu undivided family was assessed for the first time though the Income-tax Officer wrongly called it as a fresh assessment. On the facts established, it is not possible to come to the conclusion that the assessment made against the Hindu undivided family was an assessment under section 27. That being so, the assessment made against the Hindu undivided family on February 6, 1961, is clearly barred by time. Hence, the High Court was justified in answering the first question against the departmentNow, coming to the second question, the relevant facts are these 6. In the relevant previous years to the assessment years 1955-56 and 1956-57, certain loans had been advanced to the Hindu undivided family by a company known as M/s. Shyam Sunder Tea Co. (P.) Ltd. The Tribunal has found that Saharia had held certain shares in that company. Its further finding is that he held those shares as the karta of his Hindu undivided family. Therefore, the question that arose for decision was whether those loans can be considered as " dividends " as provided in clause (e) of section 2(6A). There was controversy between the parties whether those shares were held by Saharia in his individual capacity or as the karta of the family. That controversy has not been gone into by the High Court. At present we are proceeding on the basis that he held those shares as the karta of his family. Clause(e) of section 2(6A) says" Dividend includes (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits." 7. It is not disputed that M/s. Shyam Sunder Tea Co. (P.) Ltd. is not a company in which the public are substantially interested. It is a private company. The only question that was in issue was that as the shares in question stood in the name of Saharia, can they in law be considered as the shares of the Hindu undivided family ? The High Court held that, for the purpose of the Act, they must be considered as the shares of Saharia and, therefore, any loan granted by M/s. Shyam Sunder Tea Co. Ltd. to the Hindu undivided family cannot come within the scope of clause (e) to section 2(6A). In arriving at the conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lundasingh Bajaj v. Commissioner of Income-tax , wherein that court held that the provisions of section 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment to income-tax dividend income derived by a benami holder of shares should be treated as his own income and not that of the real owner of the shares which have yielded the dividend income. That decision was affirmed by this court in Kishanchand, Lunidasingh Bajaj v. Commissioner of Income-tax. Therein, this court held that where the shares acquired with the funds of the Hindu undivided family were held in the name of the karta, the Hindu undivided family could be assessed to tax under the Act on the dividend from those shares. In view of that decision we must hold that the High Court erred in its answer to the second question. Hence, that answer is discharged and in its place we answer that question in favour of the department. But, we hasten to, make it clear that in respect of the loan granted in the account year previous to the assessment year 1955-56, the same cannot be brought to tax, as assessment in respect of that year was not made within the time prescribed | 0[ds]3. It is not the case of the department that the assessment in question either falls under clause (c) ofn (1) of section 28 or clause (a) ofn (1) orn (1A) of section 34. Therefore, the department cannot take any assistance from the main section 34(3)5. To recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family. The status shown in the return is Hindu undivided family. He filed no return in the status of an individual. The same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability to be taxed as an individual is different from the liability to be taxed on behalf of his Hindu undivided family. The individual and the Hindu undivided family are totally different units of taxation. They are two different assessees. The ex parte order was made on February 29, 1960, against Saharia in the status of an individual. What was set aside under section 27 was the assessment made on him in the status of an individual. There was no assessment against the Hindu undivided family. Hence, there was no question of setting aside any assessment made against the Hindu undivided family. On February 6, 1961, the Hindu undivided family was assessed for the first time though thex Officer wrongly called it as a fresh assessment. On the facts established, it is not possible to come to the conclusion that the assessment made against the Hindu undivided family was an assessment under section 27. That being so, the assessment made against the Hindu undivided family on February 6, 1961, is clearly barred by time. Hence, the High Court was justified in answering the first question against the departmentNow, coming to the second question, the relevant facts are these7. It is not disputed that M/s. Shyam Sunder Tea Co. (P.) Ltd. is not a company in which the public are substantially interested. It is a private company. The only question that was in issue was that as the shares in question stood in the name of Saharia, can they in law be considered as the shares of the Hindu undivided family ? The High Court held that, for the purpose of the Act, they must be considered as the shares of Saharia and, therefore, any loan granted by M/s. Shyam Sunder Tea Co. Ltd. to the Hindu undivided family cannot come within the scope of clause (e) to section 2(6A). In arriving at the conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lundasingh Bajaj v. Commissioner ofx , wherein that court held that the provisions of section 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment tox dividend income derived by a benami holder of shares should be treated as his own income and not that of the real owner of the shares which have yielded the dividend income. That decision was affirmed by this court in Kishanchand, Lunidasingh Bajaj v. Commissioner of. Therein, this court held that where the shares acquired with the funds of the Hindu undivided family were held in the name of the karta, the Hindu undivided family could be assessed to tax under the Act on the dividend from those shares. In view of that decision we must hold that the High Court erred in its answer to the second question. Hence, that answer is discharged and in its place we answer that question in favour of the department. But, we hasten to, make it clear that in respect of the loan granted in the account year previous to the assessment year, the same cannot be brought to tax, as assessment in respect of that year was not made within the time prescribed | 0 | 2,360 | 750 | ### 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:
within time, reliance was placed by the department on the second proviso to section 34(3). That proviso reads" Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment maybe made, shall apply to a reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A." 4. What was contended on behalf of the department is that the reassessment in this case was made under section 27. That contention has been upheld by the Appellate Assistant Commissioner as well as by the Tribunal. But the High Court has come to the conclusion that the reassessment was not made under that section 5. To recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family. The status shown in the return is Hindu undivided family. He filed no return in the status of an individual. The same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability to be taxed as an individual is different from the liability to be taxed on behalf of his Hindu undivided family. The individual and the Hindu undivided family are totally different units of taxation. They are two different assessees. The ex parte order was made on February 29, 1960, against Saharia in the status of an individual. What was set aside under section 27 was the assessment made on him in the status of an individual. There was no assessment against the Hindu undivided family. Hence, there was no question of setting aside any assessment made against the Hindu undivided family. On February 6, 1961, the Hindu undivided family was assessed for the first time though the Income-tax Officer wrongly called it as a fresh assessment. On the facts established, it is not possible to come to the conclusion that the assessment made against the Hindu undivided family was an assessment under section 27. That being so, the assessment made against the Hindu undivided family on February 6, 1961, is clearly barred by time. Hence, the High Court was justified in answering the first question against the departmentNow, coming to the second question, the relevant facts are these 6. In the relevant previous years to the assessment years 1955-56 and 1956-57, certain loans had been advanced to the Hindu undivided family by a company known as M/s. Shyam Sunder Tea Co. (P.) Ltd. The Tribunal has found that Saharia had held certain shares in that company. Its further finding is that he held those shares as the karta of his Hindu undivided family. Therefore, the question that arose for decision was whether those loans can be considered as " dividends " as provided in clause (e) of section 2(6A). There was controversy between the parties whether those shares were held by Saharia in his individual capacity or as the karta of the family. That controversy has not been gone into by the High Court. At present we are proceeding on the basis that he held those shares as the karta of his family. Clause(e) of section 2(6A) says" Dividend includes (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits." 7. It is not disputed that M/s. Shyam Sunder Tea Co. (P.) Ltd. is not a company in which the public are substantially interested. It is a private company. The only question that was in issue was that as the shares in question stood in the name of Saharia, can they in law be considered as the shares of the Hindu undivided family ? The High Court held that, for the purpose of the Act, they must be considered as the shares of Saharia and, therefore, any loan granted by M/s. Shyam Sunder Tea Co. Ltd. to the Hindu undivided family cannot come within the scope of clause (e) to section 2(6A). In arriving at the conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lundasingh Bajaj v. Commissioner of Income-tax , wherein that court held that the provisions of section 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment to income-tax dividend income derived by a benami holder of shares should be treated as his own income and not that of the real owner of the shares which have yielded the dividend income. That decision was affirmed by this court in Kishanchand, Lunidasingh Bajaj v. Commissioner of Income-tax. Therein, this court held that where the shares acquired with the funds of the Hindu undivided family were held in the name of the karta, the Hindu undivided family could be assessed to tax under the Act on the dividend from those shares. In view of that decision we must hold that the High Court erred in its answer to the second question. Hence, that answer is discharged and in its place we answer that question in favour of the department. But, we hasten to, make it clear that in respect of the loan granted in the account year previous to the assessment year 1955-56, the same cannot be brought to tax, as assessment in respect of that year was not made within the time prescribed
### Response:
0
### Explanation:
3. It is not the case of the department that the assessment in question either falls under clause (c) ofn (1) of section 28 or clause (a) ofn (1) orn (1A) of section 34. Therefore, the department cannot take any assistance from the main section 34(3)5. To recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family. The status shown in the return is Hindu undivided family. He filed no return in the status of an individual. The same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability to be taxed as an individual is different from the liability to be taxed on behalf of his Hindu undivided family. The individual and the Hindu undivided family are totally different units of taxation. They are two different assessees. The ex parte order was made on February 29, 1960, against Saharia in the status of an individual. What was set aside under section 27 was the assessment made on him in the status of an individual. There was no assessment against the Hindu undivided family. Hence, there was no question of setting aside any assessment made against the Hindu undivided family. On February 6, 1961, the Hindu undivided family was assessed for the first time though thex Officer wrongly called it as a fresh assessment. On the facts established, it is not possible to come to the conclusion that the assessment made against the Hindu undivided family was an assessment under section 27. That being so, the assessment made against the Hindu undivided family on February 6, 1961, is clearly barred by time. Hence, the High Court was justified in answering the first question against the departmentNow, coming to the second question, the relevant facts are these7. It is not disputed that M/s. Shyam Sunder Tea Co. (P.) Ltd. is not a company in which the public are substantially interested. It is a private company. The only question that was in issue was that as the shares in question stood in the name of Saharia, can they in law be considered as the shares of the Hindu undivided family ? The High Court held that, for the purpose of the Act, they must be considered as the shares of Saharia and, therefore, any loan granted by M/s. Shyam Sunder Tea Co. Ltd. to the Hindu undivided family cannot come within the scope of clause (e) to section 2(6A). In arriving at the conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lundasingh Bajaj v. Commissioner ofx , wherein that court held that the provisions of section 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment tox dividend income derived by a benami holder of shares should be treated as his own income and not that of the real owner of the shares which have yielded the dividend income. That decision was affirmed by this court in Kishanchand, Lunidasingh Bajaj v. Commissioner of. Therein, this court held that where the shares acquired with the funds of the Hindu undivided family were held in the name of the karta, the Hindu undivided family could be assessed to tax under the Act on the dividend from those shares. In view of that decision we must hold that the High Court erred in its answer to the second question. Hence, that answer is discharged and in its place we answer that question in favour of the department. But, we hasten to, make it clear that in respect of the loan granted in the account year previous to the assessment year, the same cannot be brought to tax, as assessment in respect of that year was not made within the time prescribed
|
Rajbala W/O. Mai Chand Vs. Union of India & Others | which is equal to 50% of the basic wages and the dearness allowance, which the deceased husband was drawing at the time of his death is paid to the petitioner under the settlement reached between the company and the employees union. It is not the case of the respondents that the deceased husband of the petitioner was a civil servant or employee in civil service before the age of superannuation after leaving army. It is therefore difficult to appreciate as to how the pension received by the petitioner under the provisions of the Act of 1952 can be regarded as pension on the civil side. The late husband of the petitioner was working in a Public Limited Company after his retirement from the army and after his death the petitioner is receiving the family pension under the provisions of the Act of 1952 because of the monthly contribution made by the petitioners husband to the Employees Provident Fund and also by equal monthly contribution made by the company to the same fund during the employment of the petitioner s husband with Telco. The monthly pension under the Family Pension Scheme under the Act of 1952 or dependents allowance paid, is payable to the petitioner by virtue of the services rendered by the husband of the petitioner in Telco while the army pension is payable to the petitioner by virtue of the services of 15 years rendered by the husband of the petitioner in army. Thus in our opinion the decision of the respondents in not granting family pension to the petitioner is wholly illegal.5.In Union of India v. Visalakshy, 1998 II CLR 1166, the division bench of Kerala High Court has held that the widow of a ex-Army employee is entitled to family pension from the army side notwithstanding the benefit of the family pension received by her under the family pension scheme under the provisions of the Act of 1952. In that case the husband of the original petitioner served in Indian Army for 28 years. In 1975 he was discharged from the Army and was granted army pension which he drew till his death. In 1976 he joined Food Corporation of India as a watchman and worked there till his death in 1987. The petitioner was granted family pension under the Family Pension Scheme constituted under the provisions of the Act of 1952 but her claim for army pension was declined on the ground that only one family pension was admissible to her. The learned single Judge allowed the petition filed by the petitioner. The relevant portion of the judgment of the learned single Judge reads as under:"In the instant case respondent 1 to 4 have no case that the petitioner is not entitled to pension as per the Army family pension regulations. The only objection is the grant of family pension by the 4th respondent under the family pension scheme. There is no case for the respondents that the deceased husband of the petitioner was a civil servant or employed in any civil service before the age of superannuation after leaving the Army and in the absence of any other objection regarding the claim put forward by the petitioner for family pension under the Army regulations, she cannot be denied the benefit of family pension under the Army regulations.It is made clear that the entitlement of the petitioner to receive family pension under the Army regulations shall not stand in the way of the petitioner receiving any other benefit under the family pension scheme introduced under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, particularly in view of the stand taken by the 4th respondent and the additional 5 respondent that the payment of benefit under the said scheme is in addition to any other benefit for which the employees or claimants under them are entitled to from previous employment including military service. It is to be remembered that it is based on such a definite understanding that deductions were made from the wages of employees including the deceased husband of the petitioner. As such the 4th respondent is estopped in law from denying the petitioner the benefit under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions Act."6.The Union of India carried the matter in appeal before the Division Bench of the Kerala High Court which confirmed the decision of the learned Single Judge. The decision of the division bench was brought to the notice of the respondents by the petitioner vide her representation to the Secretary to the Government of India, Ministry of Defence, New Delhi. However, strangely the respondent no.2. i.e. Controller General of Defence Accounts took a stand that the decision taken by the Kerala High Court in the above case cannot be treated as rule position for all cases. We are constrained to observe that the respondent No.2 brushed aside the ruling of the Kerala High Court in a totally cavalier fashion. The Kerala High Court has clearly laid down that the fact that the widow of ex-army man is receiving benefits under the family pension scheme under the provisions of the Act of 1952 is no ground for denying the family pension under the Army Rules to the widow of ex-army man. The President of India has conveyed his sanction to the implementation of the Kerala High Court order dated 26.5.1998 regarding the grant of family pension to the widow of army employees for the services rendered by him in the Indian Army notwithstanding any other benefits that may be received by her under the family pension scheme constituted under the provisions of the Act of 1952. Surprisingly the respondent no.2 has tried to over-reach the authority of the High Court by holding that the decision of the Kerala High Court cannot be made applicable to the other similar cases. In our opinion the actions of the respondent nos. 2 and 3 denying army pension to the petitioner is wholly illegal and liable to be struck down. | 1[ds]After going through the various impugned letters issued by the respondent Nos.2 and 3 it is seen that the respondents have declined to grant family pension to the petitioner solely on the ground that she is receiving pension under the provisions of the Act of 1952 and monthly dependents allowance from Telco in accordance with the settlement reached between the management of Telco and the employees union. It is clearly seen from the certificate issued by Telco which is annexed at Exhibit IX that the petitioner is receiving family pension under the provisions of the Act of 1952 because of the monthly contributions made by the deceased husband of the petitioner from this monthly wages to the Employees Provident Fund and also by the equal monthly contribution made by the company to the same fund during the period of his employment with the company. As far as the dependents allowance is concerned, which is equal to 50% of the basic wages and the dearness allowance, which the deceased husband was drawing at the time of his death is paid to the petitioner under the settlement reached between the company and the employees union. It is not the case of the respondents that the deceased husband of the petitioner was a civil servant or employee in civil service before the age of superannuation after leaving army. It is therefore difficult to appreciate as to how the pension received by the petitioner under the provisions of the Act of 1952 can be regarded as pension on the civil side. The late husband of the petitioner was working in a Public Limited Company after his retirement from the army and after his death the petitioner is receiving the family pension under the provisions of the Act of 1952 because of the monthly contribution made by the petitioners husband to the Employees Provident Fund and also by equal monthly contribution made by the company to the same fund during the employment of the petitioner s husband with Telco. The monthly pension under the Family Pension Scheme under the Act of 1952 or dependents allowance paid, is payable to the petitioner by virtue of the services rendered by the husband of the petitioner in Telco while the army pension is payable to the petitioner by virtue of the services of 15 years rendered by the husband of the petitioner in army. Thus in our opinion the decision of the respondents in not granting family pension to the petitioner is whollyis made clear that the entitlement of the petitioner to receive family pension under the Army regulations shall not stand in the way of the petitioner receiving any other benefit under the family pension scheme introduced under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, particularly in view of the stand taken by the 4th respondent and the additional 5 respondent that the payment of benefit under the said scheme is in addition to any other benefit for which the employees or claimants under them are entitled to from previous employment including military service. It is to be remembered that it is based on such a definite understanding that deductions were made from the wages of employees including the deceased husband of the petitioner. As such the 4th respondent is estopped in law from denying the petitioner the benefit under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions Act."6.The Union of India carried the matter in appeal before the Division Bench of the Kerala High Court which confirmed the decision of the learned Single Judge. The decision of the division bench was brought to the notice of the respondents by the petitioner vide her representation to the Secretary to the Government of India, Ministry of Defence, New Delhi. However, strangely the respondent no.2. i.e. Controller General of Defence Accounts took a stand that the decision taken by the Kerala High Court in the above case cannot be treated as rule position for all cases. We are constrained to observe that the respondent No.2 brushed aside the ruling of the Kerala High Court in a totally cavalier fashion. The Kerala High Court has clearly laid down that the fact that the widow ofman is receiving benefits under the family pension scheme under the provisions of the Act of 1952 is no ground for denying the family pension under the Army Rules to the widow ofman. The President of India has conveyed his sanction to the implementation of the Kerala High Court order dated 26.5.1998 regarding the grant of family pension to the widow of army employees for the services rendered by him in the Indian Army notwithstanding any other benefits that may be received by her under the family pension scheme constituted under the provisions of the Act of 1952. Surprisingly the respondent no.2 has tried tothe authority of the High Court by holding that the decision of the Kerala High Court cannot be made applicable to the other similar cases. In our opinion the actions of the respondent nos. 2 and 3 denying army pension to the petitioner is wholly illegal and liable to be struck down. | 1 | 2,189 | 894 | ### 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:
which is equal to 50% of the basic wages and the dearness allowance, which the deceased husband was drawing at the time of his death is paid to the petitioner under the settlement reached between the company and the employees union. It is not the case of the respondents that the deceased husband of the petitioner was a civil servant or employee in civil service before the age of superannuation after leaving army. It is therefore difficult to appreciate as to how the pension received by the petitioner under the provisions of the Act of 1952 can be regarded as pension on the civil side. The late husband of the petitioner was working in a Public Limited Company after his retirement from the army and after his death the petitioner is receiving the family pension under the provisions of the Act of 1952 because of the monthly contribution made by the petitioners husband to the Employees Provident Fund and also by equal monthly contribution made by the company to the same fund during the employment of the petitioner s husband with Telco. The monthly pension under the Family Pension Scheme under the Act of 1952 or dependents allowance paid, is payable to the petitioner by virtue of the services rendered by the husband of the petitioner in Telco while the army pension is payable to the petitioner by virtue of the services of 15 years rendered by the husband of the petitioner in army. Thus in our opinion the decision of the respondents in not granting family pension to the petitioner is wholly illegal.5.In Union of India v. Visalakshy, 1998 II CLR 1166, the division bench of Kerala High Court has held that the widow of a ex-Army employee is entitled to family pension from the army side notwithstanding the benefit of the family pension received by her under the family pension scheme under the provisions of the Act of 1952. In that case the husband of the original petitioner served in Indian Army for 28 years. In 1975 he was discharged from the Army and was granted army pension which he drew till his death. In 1976 he joined Food Corporation of India as a watchman and worked there till his death in 1987. The petitioner was granted family pension under the Family Pension Scheme constituted under the provisions of the Act of 1952 but her claim for army pension was declined on the ground that only one family pension was admissible to her. The learned single Judge allowed the petition filed by the petitioner. The relevant portion of the judgment of the learned single Judge reads as under:"In the instant case respondent 1 to 4 have no case that the petitioner is not entitled to pension as per the Army family pension regulations. The only objection is the grant of family pension by the 4th respondent under the family pension scheme. There is no case for the respondents that the deceased husband of the petitioner was a civil servant or employed in any civil service before the age of superannuation after leaving the Army and in the absence of any other objection regarding the claim put forward by the petitioner for family pension under the Army regulations, she cannot be denied the benefit of family pension under the Army regulations.It is made clear that the entitlement of the petitioner to receive family pension under the Army regulations shall not stand in the way of the petitioner receiving any other benefit under the family pension scheme introduced under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, particularly in view of the stand taken by the 4th respondent and the additional 5 respondent that the payment of benefit under the said scheme is in addition to any other benefit for which the employees or claimants under them are entitled to from previous employment including military service. It is to be remembered that it is based on such a definite understanding that deductions were made from the wages of employees including the deceased husband of the petitioner. As such the 4th respondent is estopped in law from denying the petitioner the benefit under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions Act."6.The Union of India carried the matter in appeal before the Division Bench of the Kerala High Court which confirmed the decision of the learned Single Judge. The decision of the division bench was brought to the notice of the respondents by the petitioner vide her representation to the Secretary to the Government of India, Ministry of Defence, New Delhi. However, strangely the respondent no.2. i.e. Controller General of Defence Accounts took a stand that the decision taken by the Kerala High Court in the above case cannot be treated as rule position for all cases. We are constrained to observe that the respondent No.2 brushed aside the ruling of the Kerala High Court in a totally cavalier fashion. The Kerala High Court has clearly laid down that the fact that the widow of ex-army man is receiving benefits under the family pension scheme under the provisions of the Act of 1952 is no ground for denying the family pension under the Army Rules to the widow of ex-army man. The President of India has conveyed his sanction to the implementation of the Kerala High Court order dated 26.5.1998 regarding the grant of family pension to the widow of army employees for the services rendered by him in the Indian Army notwithstanding any other benefits that may be received by her under the family pension scheme constituted under the provisions of the Act of 1952. Surprisingly the respondent no.2 has tried to over-reach the authority of the High Court by holding that the decision of the Kerala High Court cannot be made applicable to the other similar cases. In our opinion the actions of the respondent nos. 2 and 3 denying army pension to the petitioner is wholly illegal and liable to be struck down.
### Response:
1
### Explanation:
After going through the various impugned letters issued by the respondent Nos.2 and 3 it is seen that the respondents have declined to grant family pension to the petitioner solely on the ground that she is receiving pension under the provisions of the Act of 1952 and monthly dependents allowance from Telco in accordance with the settlement reached between the management of Telco and the employees union. It is clearly seen from the certificate issued by Telco which is annexed at Exhibit IX that the petitioner is receiving family pension under the provisions of the Act of 1952 because of the monthly contributions made by the deceased husband of the petitioner from this monthly wages to the Employees Provident Fund and also by the equal monthly contribution made by the company to the same fund during the period of his employment with the company. As far as the dependents allowance is concerned, which is equal to 50% of the basic wages and the dearness allowance, which the deceased husband was drawing at the time of his death is paid to the petitioner under the settlement reached between the company and the employees union. It is not the case of the respondents that the deceased husband of the petitioner was a civil servant or employee in civil service before the age of superannuation after leaving army. It is therefore difficult to appreciate as to how the pension received by the petitioner under the provisions of the Act of 1952 can be regarded as pension on the civil side. The late husband of the petitioner was working in a Public Limited Company after his retirement from the army and after his death the petitioner is receiving the family pension under the provisions of the Act of 1952 because of the monthly contribution made by the petitioners husband to the Employees Provident Fund and also by equal monthly contribution made by the company to the same fund during the employment of the petitioner s husband with Telco. The monthly pension under the Family Pension Scheme under the Act of 1952 or dependents allowance paid, is payable to the petitioner by virtue of the services rendered by the husband of the petitioner in Telco while the army pension is payable to the petitioner by virtue of the services of 15 years rendered by the husband of the petitioner in army. Thus in our opinion the decision of the respondents in not granting family pension to the petitioner is whollyis made clear that the entitlement of the petitioner to receive family pension under the Army regulations shall not stand in the way of the petitioner receiving any other benefit under the family pension scheme introduced under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, particularly in view of the stand taken by the 4th respondent and the additional 5 respondent that the payment of benefit under the said scheme is in addition to any other benefit for which the employees or claimants under them are entitled to from previous employment including military service. It is to be remembered that it is based on such a definite understanding that deductions were made from the wages of employees including the deceased husband of the petitioner. As such the 4th respondent is estopped in law from denying the petitioner the benefit under the family pension scheme under the Employees Provident Funds and Miscellaneous Provisions Act."6.The Union of India carried the matter in appeal before the Division Bench of the Kerala High Court which confirmed the decision of the learned Single Judge. The decision of the division bench was brought to the notice of the respondents by the petitioner vide her representation to the Secretary to the Government of India, Ministry of Defence, New Delhi. However, strangely the respondent no.2. i.e. Controller General of Defence Accounts took a stand that the decision taken by the Kerala High Court in the above case cannot be treated as rule position for all cases. We are constrained to observe that the respondent No.2 brushed aside the ruling of the Kerala High Court in a totally cavalier fashion. The Kerala High Court has clearly laid down that the fact that the widow ofman is receiving benefits under the family pension scheme under the provisions of the Act of 1952 is no ground for denying the family pension under the Army Rules to the widow ofman. The President of India has conveyed his sanction to the implementation of the Kerala High Court order dated 26.5.1998 regarding the grant of family pension to the widow of army employees for the services rendered by him in the Indian Army notwithstanding any other benefits that may be received by her under the family pension scheme constituted under the provisions of the Act of 1952. Surprisingly the respondent no.2 has tried tothe authority of the High Court by holding that the decision of the Kerala High Court cannot be made applicable to the other similar cases. In our opinion the actions of the respondent nos. 2 and 3 denying army pension to the petitioner is wholly illegal and liable to be struck down.
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